Online Safety Bill

Committee (2nd Day) (Continued)

Amendment 12BA

12BA: Clause 6, page 5, line 16, at end insert— “(g) the duties on regulated provider pornographic content set out in section 72.”Member’s explanatory statement This amendment requires user-to-user services to comply with duties under Part 5.

My Lords, I wish to speak to the amendments in this group, which are in my name and are also supported by the noble Lord, Lord Morrow. There are three interconnected issues raised by these amendments. First, there should be a level playing field across the Bill for regulating pornographic content. The same duties should apply to all content, whether it is found in social media or a user-to-user pornography site, which fall under Part 3, or a commercial pornography site, with producer content that falls within Part 5 of the Bill. Secondly, these common duties in respect of pornography must come into effect at the same time. My requiring that the same duties under Clause 72 apply to both Part 3 and Part 5 services means that they will be regulated for pornographic content at the same time, ensuring uniformity across the Bill.

Thirdly, through Amendment 125A, I wish to probe how Part 5 will function more specifically. Will any website or platform actually be covered by Part 5 if these amendments are not made? I had the privilege of speaking earlier to the Minister on these issues, and one question I would pose at this stage is, how many sites are covered by Part 5? That is one of the questions to which your Lordships’ House requires an answer.

The issue of ensuring that pornography is named as a harm on the face of the Bill, and that all pornographic content is age-verified, is not new. Indeed, it has been raised from the outset of the Bill, including at Second Reading in your Lordships’ House. In pre-legislative scrutiny even, the Joint Committee on the draft Bill recommended that

“key, known risks of harm to children are set out on the face of the Bill. We would expect these to include (but not be limited to) access to or promotion of age-inappropriate material such as pornography”.

To partly address this issue, the Government added Part 5 to the Bill, which sought to ensure that any platform that was not in scope of Part 3 but which included pornographic content should be subject to age-verification measures. I know that other noble Lords have put forward amendments that would add to the list of online harms on the face of the Bill, which we will be debating later in group 10.

Other amendments add to the duties that platforms hosting pornographic content need to comply with. These include Amendment 184, in the name of the noble Baroness, Lady Kidron, which proposes that consent be obtained from performers, and Amendment 185, in the name of the noble Baroness, Lady Benjamin, which seeks to ensure parity between what is permissible offline and online. The amendments I propose in this group are, I believe, complementary to those amendments. My amendments seek to ensure that duties across Part 3 and Part 5 in respect of pornography are aligned. Therefore, those additional duties contained in other amendments would be aligned across the Bill as well. When we get to that stage in Committee, I will be supporting those amendments.

While I appreciate that the Government state it is their intention that Part 3 services will have to implement age verification, and that all platforms will have similar duties to ensure that children are protected from accessing pornographic content, it would clearly be better to remove all doubt and have age verification for the protection of children in the Bill. This would ensure a level playing field for all pornographic content, which brings me to my second point.

Not only does there need to be a level playing field but there needs to be a concurrent timing of these requirements coming into effect. These amendments would ensure that age verification will apply to all platforms across the Bill at the same time. I am sure your Lordships will agree that this is what the public will expect. I am not sure that parents, or indeed children and young people, would understand why one website has age verification while other content does not.

As the Bill is drafted, pornography would need to be named as the primary priority content by the Secretary of State, alongside other online harms. I hope that the Minister, in his reply, could address that issue. Codes of practice for pornography and other harms will need to be drafted and implemented before Part 3 can come into effect. We know the harm that pornography causes: it is the only harm that is already named in the Bill. It has been given its own part within the Bill, and therefore we do not need any secondary legislation to name pornography as a harm and set down duties for pornographic websites and social media to protect children. By simply making user-to-user services subject to the duties of Part 5, children can be protected more quickly. Part 5 will be much more straightforward to implement, and extending the duties to Part 3 services with pornographic content will ensure parity across all services within the scope of the Bill.

This brings me to my third and final point. Amendment 125A, upon which the Minister and I had a discussion earlier this afternoon, probes the devil in the detail of what is defined as user-generated content. I ask the Committee to bear with me, as I am required to get into the detail of the definitions in Clause 49, which is important. This detail matters because it determines whether provider pornographic content, as defined in Clause 70, could be considered user-generated content.

Put simply, if a site is user generated it is regulated under Part 3 and if a site produces its own content it is covered by Part 5. The Government said, in their helpful factsheet circulated before the start of Committee, that Part 3 covers services

“such as social media platforms and dedicated pornography sites that enable user interaction”.

In the case of Part 5 services, the intention is that this will cover content provided only by the service. My Amendment 125A probes what happens next and what constitutes user interaction.

If users of a platform can interact, this seems to move the service into Part 3 of the Bill, as per its definition of user-generated content. The definition in Clause 49(2)(e) includes “comments and reviews”, which itself refers to Clause 49(6). However, Clause 49(6) does not bring much clarity about what

“Comments and reviews on provider content”

consist of. On a plain reading of Clause 49 it would appear that a pornography provider which currently falls under Part 5 would move to being a Part 3 service under the Bill if they allow users to comment on the content and allow user interaction. Therefore, the important question is: what is user-to-user functionality?

The British Board of Film Classification undertook an analysis of user-to-user functionality on adult sites in October 2020. It assumed that likes did not constitute user-to-user functionality, specifically saying:

“We have not included sites which offer users the chance to ‘rate’ content—for example, with a ‘thumbs up’ or ‘thumbs down’—as we were concerned that this would be too generous an interpretation of ‘user interaction’”.