The UK Government’s Digital Economy Bill continues to meander its way through the Parliamentary process and this week saw it reach Committee Stage in the House of Lords.
This is the opportunity for Peers to examine the details of the proposals line by line and discuss any proposed amendments. The focus of these discussions has fallen especially on Part 3 of the Bill. This is the section in which the Government is proposing to introduce age verification requirements for all online porn sites in the UK and block those which refuse.
We have written in detail about these proposals before and also highlighted the criticism levelled at them by the UN’s Advocate for Free Speech, who warned they were likely to be in breach of human rights laws.
The Lords have tabled a significant number of amendments to this section of the bill and in addition, their Constitution Committee has questioned whether the lack of detail in the Bill about the proposed measures make true Parliamentary scrutiny possible.
Despite this criticism, and plenty more besides, the Government appears to be persisting with their proposals and with the main opposition party supporting them, are taking a rather blasé attitude to efforts by Peers to introduce safeguards.
One area which has been receiving particular focus is the process by which sites will be able to appeal if an order is given out to ISPs to block them. One amendment sought to introduce a court order process before sites could be blocked.
Whilst this would appear to be a sensible safeguard against unreasonable blocking, inevitably the Government disagreed. Lord Ashton, the Governments Minister for Culture, Media, and Sport in the Lords commented on the same process which is used to block sites deemed to be in breach of copyright laws but stressed the handful of problems that process has faced rather than the safeguards it has provided.
In his speech, he insisted that the power to block sites would only be used “sparingly” and suggested that a court process would not be conducive to convincing the industry to comply. He was also at pains to stress that the power would not be used to shut down sites such as Twitter, which frequently contain pornographic content, saying the government “don’t want to get into that situation”.
That is all well and good, but none of this is laid out in the details of the legislation. What will be passed into law, if an unamended Bill is approved, is an unlimited power for the regulator (BBFC) to order the blocking of sites they deem to be in breach of the new law, without any thresholds or legal oversight being in place.
User privacy protection
The other main issue that has been raised is that of the privacy protections that will be given to people who enter their details into any age verification system.
The current proposals only note that the system will have to comply with basic data protection laws. But an amendment tabled by two Labour Party peers, Baroness Jones and Lord Stevenson, and Lib Dem peer Lord Paddick would enhance this to deliver user anonymity and make it impossible for users to be identified through different websites.
Such an amendment does not resolve the problem of privacy protection, but it does make it a less severe one, and the proposal received widespread support across all parties in the general Lords discussions.
However, the response of Lord Ashton for the Government was that such a proposal was “unnecessary”. He indicated that the regulator’s guidance will make clear all the necessary data protection measures and insisted that this didn’t need to be detailed in the legislation.
However, this guidance has not yet been published and will not be subject to Parliamentary scrutiny, which the Lords Constitution Committee was also highly critical of in its report.
That amendment was withdrawn at this stage, but Lord Paddick indicated that he would table it again if the Government hadn’t provided a satisfactory response to the issue by the time the Bill receives its third reading.
What the Committee stage highlighted more than anything was how unprepared the Government is to defend their age verification proposals. This suggests that the proposals are a kneejerk reaction to limited political pressure from a handful of MPs rather than a careful thought through policy position.
Despite this, Labour’s failure to provide credible opposition means they are likely to pass into law. It can only be hoped that the Lords is able to amend them sufficiently to provide some level of privacy and safeguard before the Bill goes back to the House of Commons for final approval.