HC Deb 13 February 2001 vol 363 cc222-8

Amendment made: No. 40, in page 1, line 18, leave out subsection (3).—[Yvette Cooper.]

Mrs. Spelman

I beg to move amendment No. 12, in page 1, line 21, leave out "includes" and insert— 'shall, to the extent set out in regulations made by the Secretary of State after consultation with representatives of those involved in the electronic publication and transmission of material, include'.

Madam Deputy Speaker (Mrs. Sylvia Heal)

With this it will be convenient to discuss the following amendments: No. 34, in page 1, line 21, leave out "includes" and insert "does not include".

No. 35, in page 1, line 23, at end insert—

'unless the person is aware on first transmission of its contents or has had a notice from an enforcement authority giving reasonable time to have the contents removed.'.

No. 36, in clause 4 page 2, line 26, leave out—

'place or on a website'

and insert—

'real place or a virtual place via electronic transmission'.

No. 15, in page 4, line 1, leave out Clause 7.

No. 33, in clause 13, page 6, line 17, at end add—

'(2A) An internet service provider shall investigate complaints from an enforcement authority on payment of a fee to cover administrative costs.'

No. 13, in clause 18, page 9, line 36, after "section", insert "1(4)".

No. 22, in clause 20, page 10, line 13, at end insert—

'internet service provider" means a person who provides access to the internet,'.

No. 23, in page 10, line 18, at end insert— website" means a location on the internet accessed by an address at which information is made available,'.

Mrs. Spelman

The amendments form a large group, but they are more focused than the previous group, in that their central point of reference is the new information technology, and the position of internet service providers and those who provide the means of transmission of information, all of whom will be affected by the Bill.

After discussing the position of ISPs in Standing Committee, we felt that several loose ends were left. We tried to secure from the Minister a duty to consult representatives of those involved in electronic publication and transmission of material, because we felt uneasy about agreeing to clauses that referred to those industries when we were not well qualified to comment on the full implications for them of the Bill's implementation. Perhaps the only member of the Committee who was better qualified than the rest was my hon. Friend the Member for South Dorset (Mr. Bruce); in due course, I shall give him a good opportunity to speak to the amendments, in recognition of the fact that he understands the issues better than the rest of us.

The issues are complex. Getting the legislation right is made more difficult by the fact that it deals with a sector that is constantly moving—the technology is still emerging and remains comparatively new to all of us. It is difficult to understand the way in which those involved in electronic publication and transmission of material will be caught by provisions relating to tobacco advertising. I suspect that they have yet to analyse the full implications of the Bill. We felt that it was important that consultation with those parties should have taken place well before our scrutiny of the Bill, so that we might all better understand the way in which they would be affected, and have a better idea of what would be in the regulations which the Secretary of State is to draw up to govern the responsibilities to be borne by the new e-commerce industry in terms of overseeing opportunities to advertise tobacco products.

The huge attraction of the differential between taxation of tobacco products by the countries of continental Europe and by the United Kingdom means that tobacco products are increasingly advertised on the internet. Currently, it is legitimate for those living in the UK to secure their supplies of duty-free cigarettes over the internet, and that trade is likely to increase. That is why we are anxious to protect ISPs, which cannot reasonably be expected to know the minutiae of the postings on their myriad advertising points, which include bulletin boards; they are not always in a position to know precisely at any given time who has hacked into their provision to post advertising. Amendment No. 12 is designed to ensure that, before any draft regulations are imposed on that emerging industry, a proper process of consultation takes place on how to make them practicable, and several of the other amendments address those practicalities.

After Committee, we were left with profound doubts about whether the Bill was the right place for an attempt to regulate the e-commerce industry. Perhaps that industry's responsibility for advertising transmitted through that new medium of communication should be part of a completely separate Bill, and would more correctly be dealt with by the Department of Trade and Industry in the context of the industry's competitiveness. The last thing we want is to burden a fledgling industry with an irksome set of regulations that will make it difficult for it to compete in the emerging market.

That becomes even more apparent when we consider how companies that are responsible for the means of transmission might be caught up by the Bill. The Committee debated whether, not ISPs, but the companies that provide hardware, might be caught by the offences defined in the Bill, even if they were unaware that they had provided the conduit for tobacco advertising. We remain extremely concerned: the Bill embodies a stab at dealing with the possibility of tobacco advertising through new and less conventional means—but that stab deals clumsily with a new technology whose full implications it is difficult for us to envisage now.

It will be good if my hon. Friend the Member for South Dorset now speaks specifically to the amendments that he tabled, which might make the Bill more practical and workable in relation to those involved in electronic publication and transmission.

Mr. Ian Bruce

At the end of Committee stage, my hon. Friend the Member for Meriden (Mrs. Spelman) asked me to try to get my head round the problems that clearly confronted internet service providers and others involved in computing, and to come up with better ways of dealing with those issues.

The problem goes to the heart of the mission that the Prime Minister set for his whole Government, which is to make the United Kingdom the best place in which to do e-business. I am afraid that, in its present form, the Bill will make the UK the worst place to do e-business. It will lay additional loads on our ISPs even if they carry no tobacco advertising, with the result that those who intend to set up as ISPs will find it easier to set up elsewhere, because the great defence offered is that as long as the internet service provision business is set up elsewhere, it can carry as much tobacco advertising as it wants, and when that advertising arrives in the United Kingdom, it will not be covered by the legislation.

I shall explain my amendments as briefly as I can, and hope that the Minister has time to respond in the short time available. Amendments Nos. 34 and 35 are aimed at the prohibition set out in clause 2. Subsection (4) states: Distributing a tobacco advertisement includes transmitting it in electronic form, participating in doing so, and providing the means of transmission. That might catch a company such as BT, if such an advertisement is sent across its lines; or the Conservative party, if someone goes from its website to another website that happens to carry tobacco advertising.

The defence comes later in the Bill. Clause 5(5) states: In relation to a tobacco advertisement which is published or caused to be published by electronic means by an internet service provider, it is a defence for him, if charged with an offence under section 2(1), to prove that he was unaware that what he published or caused to be published was, or contained, a tobacco advertisement. Basically, the clause says that it is an offence to do it, but there is a defence if the person did not know about it.

8 pm

I have tried, in the amendments which I have tabled, to deal with the matter more straightforwardly and to say that distributing a tobacco advertisement does not include transmitting it in electronic form, participating in doing so or providing the means of transmission, unless the person is aware on first transmission of its contents or has had notice from an enforcement authority, having been given reasonable time to have the contents removed.

I am saying, via the amendments, that if someone is knowingly involved in publishing the advertisement because he knew that something was promoting tobacco, that is an offence. That is what the Government are trying to do. However, if an authorised authority—I use those words carefully because they are defined in the Bill as meaning a weights and measures authority—comes to the website and says, "You are publishing an advertisement; please get it off," that is the way the matter is dealt with. If the advertisement is not taken off, an offence has been committed.

Under the Regulation of Investigatory Powers Act 2000, when the police go to an internet service provider and say, "You have got something that we want to have information about because someone is distributing pornography"—or whatever it is that they are investigating—it would be right, in terms of amendment No. 33, to pay a sensible administration fee for the matter to be checked out and for someone to do the necessary work. The amendment reads: An internet service provider shall investigate complaints from an enforcement authority"— that is, a weights and measures authority in the United Kingdom— on payment of a fee to cover administrative costs. That is fair to internet service providers.

I understand that there is a meeting tomorrow with the Minister or her officials and internet service providers. I am saying, "Don't put an enormous load on internet service providers. Don't leave them worrying about what they might do inadvertently and then find that they do not have a sufficient defence. Say carefully to a provider that if he sets up a deal with a tobacco company of any description, or some other person who is providing tobacco advertising, he is culpable and can be prosecuted." The individual, however, may have been an innocent party to all that.

We should remember that an internet service provider has not been clearly defined. The term includes virtually anyone who is doing anything over the internet. The worldwide web is an internet service provider. Many people are involved in the process of getting information on to someone's computer. They are involved as internet service providers.

Through amendment No. 36, I criticise the Government for using the term "website". If one so criticises the Government in that context, it is only fair to try to work out something better. I admit that I did so after consideration of the Bill had been completed in Committee, when the other members of the Committee had scooted off home. I was at my computer trying to work out the right way to deal with the matter.

Clause 4(2) reads: The appropriate Minister may provide in regulations that no offence is committed under Section 2 in relation to a tobacco advertisement which … is in a place"— that is, where tobacco is being sold— or on a website where tobacco products are offered for sale". That means that someone goes to a shop and receives some information through an advertisement. This might come within the regulations. The individual will buy the tobacco on the basis of the information that he is given. We all understand that.

In the virtual world, how is that done? The Minister has gone for the snappy title of website. Perhaps that is on the basis that everyone knows what a website is—it is difficult to define things that are virtual. Someone who accesses a website and obtains a tobacco advertisement is not on a website in the terms that we are discussing. He has not physically gone on to the website. He has downloaded the advertisement to his computer. He has gone to a place where there is an authorised distributor of the advertisement because it is a place that sells tobacco. The advertisement that appears on his computer is legal from the Minister's point of view, but not within the terms of the Bill. That is because it is not still on the website. The website is elsewhere and the information has found its way to the individual's computer.

I suggested that if the information were downloaded on to a large billboard, the situation would be exactly the same. In trying to help the Government, I am saying with some difficulty that if we talk of a real place or a virtual place via electronic transmission where tobacco products are offered for sale, we are coming within the ambit of what the Government are trying to do. In other words, the place where it is legal to see the advertisements is the place where the individual has transmitted them.

I admit that the entire problem has not been covered. For example, the boyfriend of one of my daughters creates advertisements. It would be legal for an advertisement that he had created to sell a tobacco product at a point of sale on the website. Unfortunately, while he is producing it, he would probably be acting illegally. It is only when the information is on the website that it becomes a legal advertisement.

The Government are trying to say that it is legal to have an advertisement when someone is buying tobacco on a website, and it is legal for that advertisement to be created in the United Kingdom, but that is not what the Bill provides. I urge the Minister to consider what we are attempting to do, so as to assist her. I ask her particularly to bear in mind what the poor old internet service provider will find if there is an unlimited number of people who can contact him. He will hear, "I was searching the web the other day and I came across an advertisement which was not selling tobacco. I know that the advertisement is illegal and you must take it off." The individual is asked, "Where were you?" He says, "I clicked on this and on that, and I am not quite sure how I really got there."

That is searching the web; we often end up where we do not expect to be. Websites are often designed to try to ensure that information that has not been requested gets on to computers. The arrival of naked ladies on a computer screen is often completely accidental. I accept that many people are doing their very best to get naked ladies on their screen. If someone goes into a search engine, he might discover that someone has downloaded information because he is trying to sell a porn site. In future, people will be trying to sell tobacco. People will ask for information and receive instead information about the selling of tobacco.

It has been difficult to cram all these ideas into a short period. I hope that I have given the Minister some time in which to respond. The amendments are intended to be helpful and to ensure that the United Kingdom becomes the best place in the world to do the sort of business that we are discussing.

Yvette Cooper

I shall deal with the amendments in turn.

Amendments Nos. 12 and 13 would remove electronic distribution from the Bill and leave it to regulations. That is not the right approach; one principle of the Bill is to provide media neutrality, so that it applies to all media. Defences are then tailored, as appropriate, to different media, which is a sensible approach. The amendments would single out electronic distribution for special treatment, but not electronic publishing. There is therefore a lack of consistency. We said in Committee several times that the Government were sympathetic to the position of internet service providers and we will discuss with them the enforcement of the Bill. However, it would be wrong to write them, or others involved in electronic methods of communication, out of the script altogether.

I accept the intention behind amendments Nos. 34 and 35. In fact, they tend simply to rejig the provisions in the Bill. The intention of the Bill, and the purpose behind it, is to introduce a comprehensive ban and then introduce appropriately targeted defences. The amendments would try to rejig that by building in the defences even before introducing the comprehensive ban.

Mr. Ian Bruce

Will the Minister give way?

Yvette Cooper

Not now, because I have limited time. I will give way if I have time when I have made these points in response.

Electronic distributors already have the defences, under clause 5(6), of being unaware, of being unable to prevent further distribution, or of not carrying on business in the United Kingdom. The amendments add nothing to those defences, but add the sense of someone who could tell ISPs about a tobacco advertisement authoritatively. We discussed that in Committee, when I made it clear that the Government are happy to work with ISPs to develop a workable system. However, we see no reason to introduce a bureaucracy to do so in the Bill, and believe that we can get a voluntary arrangement that would be effective in that area.

I accept the intention behind amendment No. 36, but I do not think that it adds anything to the Bill or improves it. The term "website" is currently understood to mean a location on the worldwide web, identified by a web address. There is a legitimate concern about what happens in five years' time if the idea of a website becomes redundant because technology has moved on. We have included clause 7 in the Bill so that we can keep up with the technology. The amendment would not add anything to the Bill, and we would still have to rely on clause 7 to keep up.

We cannot accept amendment No. 15, which would remove clause 7 and our order-making power to amend the Bill to take account of developments in technology. That power is not open-ended and does not allow us to change any provision on a whim. It is a narrow and specific power, allowing us to change only provisions relating to publishing or distributing by electronic means so as to react to developments in technology. We would not use that power lightly, but given the pace of technological development in that area, it is extremely important to have it, so that the Bill's intention is not rendered pointless by the rapid pace of technology.

Amendment No. 33 would allow particular businesses or private individuals to charge public authorities for obeying the law of the land. That is not appropriate and we do not undertake such action in other areas of the law. We are aware that ISPs have legitimate concerns.

Mr. Bruce

The Regulation of Investigatory Powers Act 2000, which has just been passed by the House, does precisely that for precisely those people who are targeted by the provision.

Yvette Cooper

We have said that we recognise that the ISPs have legitimate concerns, in that they should have, first, appropriate defences, especially those regarding the fact that they were not aware. Additionally, they should have additional defences as compared with print distributors and publishers. There should also be an effective system of implementing the Bill that does not put additional burdens or pressures on ISPs beyond what is necessary to implement the Bill sensibly.

8.15 pm

The hon. Member for South Dorset (Mr. Bruce) is right to say that my officials are meeting ISPs. We are keen to work with them to set up a voluntary system, which works in other areas. Amendments Nos. 22 and 23 raise issues concerning ISPs similar to those which a previous amendment raised about websites. Again, it is not necessary to provide further definitions in that area, for which we have a normal understanding of the wording. Furthermore, if that definition becomes obsolete because of changes in technology, we will have power, under clause 7, to amend it to respond to developments in technology in future. I therefore propose that we reject all the amendments in this group.

Mrs. Spelman

To make it clear, in seeking to point out to the House—

It being a quarter past Eight o'clock, MADAM DEPUTY SPEAKER proceeded to put the Question already proposed from the Chair, pursuant to Order [7 November and this day].

Amendment negatived.

MADAM DEPUTY SPEAKER then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

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