Digital Economy Bill (HL Bill 122)

(b) a means of accessing the internet does not include any device or other
equipment for doing so.

(7) In subsection (6), “on-demand programme service” has the meaning given by
section 368A of the Communications Act 2003.

(8) 5Regulations under subsection (2) may make different provision for different
purposes.

(9) Regulations under subsection (2) are to be made by statutory instrument.

(10) A statutory instrument containing regulations under subsection (2) is subject
to annulment in pursuance of a resolution of either House of Parliament.

(11) 10But a statutory instrument containing the first regulations under that
subsection may not be made unless a draft of the instrument has been laid
before and approved by a resolution of each House of Parliament.

17 Meaning of “pornographic material”

(1) In this Part “pornographic material” (except in the expression “extreme
15pornographic material”) means any of the following—

(a) a video work in respect of which the video works authority has issued
an R18 certificate;

(b) material that was included in a video work to which paragraph (a)
applies, if it is reasonable to assume from its nature that its inclusion
20was among the reasons why the certificate was an R18 certificate;

(c) any other material if it is reasonable to assume from its nature that any
classification certificate issued in respect of a video work including it
would be an R18 certificate;

(d) a video work in respect of which the video works authority has issued
25an 18 certificate, and that it is reasonable to assume from its nature was
produced solely or principally for the purposes of sexual arousal;

(e) material that was included in a video work to which paragraph (d)
applies, if it is reasonable to assume from the nature of the material—

(i) that it was produced solely or principally for the purposes of
30sexual arousal, and

(ii) that its inclusion was among the reasons why the certificate was
an 18 certificate;

(f) any other material if it is reasonable to assume from its nature—

(i) that it was produced solely or principally for the purposes of
35sexual arousal, and

(ii) that any classification certificate issued in respect of a video
work including it would be an 18 certificate;

(g) a video work that the video works authority has determined not to be
suitable for a classification certificate to be issued in respect of it, if—

(i) 40it includes material (other than extreme pornographic material)
that it is reasonable to assume from its nature was produced
solely or principally for the purposes of sexual arousal, and

(ii) it is reasonable to assume from the nature of that material that
its inclusion was among the reasons why the video works
45authority made that determination;

(h) material (other than extreme pornographic material) that was included
in a video work that the video works authority has determined not to

be suitable for a classification certificate to be issued in respect of it, if it
is reasonable to assume from the nature of the material—

(i) that it was produced solely or principally for the purposes of
sexual arousal, and

(ii) 5that its inclusion was among the reasons why the video works
authority made that determination;

(i) any other material (other than extreme pornographic material) if it is
reasonable to assume from the nature of the material—

(i) that it was produced solely or principally for the purposes of
10sexual arousal, and

(ii) that the video works authority would determine that a video
work including it was not suitable for a classification certificate
to be issued in respect of it.

(2) In this section—

• 15“18 certificate” means a classification certificate which—

  (a)

  contains, pursuant to section 7(2)(b) of the Video Recordings
  Act 1984, a statement that the video work is suitable for viewing
  only by persons who have attained the age of 18 and that no
  video recording containing that work is to be supplied to any
  20person who has not attained that age, and

  (b)

  does not contain the statement mentioned in section 7(2)(c) of
  that Act that no video recording containing the video work is to
  be supplied other than in a licensed sex shop;

• “classification certificate” has the same meaning as in the Video
  25Recordings Act 1984 (see section 7 of that Act);

• “material” means—

  (a)

  a series of visual images shown as a moving picture, with or
  without sound;

  (b)

  a still image or series of still images, with or without sound; or

  (c)

  30sound;

• “R18 certificate” means a classification certificate which contains the
  statement mentioned in section 7(2)(c) of the Video Recordings Act
  1984 that no video recording containing the video work is to be
  supplied other than in a licensed sex shop;

• 35“the video works authority” means the person or persons designated
  under section 4(1) of the Video Recordings Act 1984 as the authority
  responsible for making arrangements in respect of video works other
  than video games;

• “video work” means a video work within the meaning of the Video
  40Recordings Act 1984, other than a video game within the meaning of
  that Act.

18 The age-verification regulator: designation and funding

(1) The Secretary of State may by notice designate any person, or any two or more
persons jointly, as the age-verification regulator for the purposes of—

(a) 45all of the functions of the age-verification regulator under this Part, or

(b) any of those functions specified in the notice by which the designation
is made.

(2) Different persons may be designated for the purposes of different functions.

(3) The Secretary of State may at any time by notice—

(a) revoke a designation under this section;

(b) designate one or more other persons in place of any person or persons
designated under this section.

(4) 5The Secretary of State’s power to designate a person under this section
includes a power to designate the holder for the time being of any office or
employment specified in the notice by which the designation is made.

(5) The Secretary of State must not make a designation under this section unless
satisfied that—

(a) 10arrangements will be maintained by the age-verification regulator for
appeals to which subsection (6) applies, and

(b) any person hearing an appeal under those arrangements will be
sufficiently independent of the age-verification regulator.

(6) This subsection applies to appeals—

(a) 15by a person on whom a financial penalty has been imposed under
section 21(1) or (10), against the imposition of that penalty;

(b) by a person to whom an enforcement notice has been given under
section 21(2), against the giving of that notice;

(c) by a person identified as the non-complying person in a notice given
20under section 23, against the giving of that notice;

(d) by an internet service provider to whom a notice has been given under
section 25(1), against the giving of that notice;

(e) by a person identified as the non-complying person in a notice given to
an internet service provider under section 25(1), against the giving of
25that notice.

(7) A notice under subsection (1) or (3) must be published in the London,
Edinburgh and Belfast Gazettes.

(8) The Secretary of State may pay grants or make loans to the age-verification
regulator to cover expenditure incurred in the carrying out of its functions.

(9) 30Grants may be paid and loans made under subsection (8) subject to any
conditions the Secretary of State thinks appropriate (including conditions as to
repayment).

19 Parliamentary procedure for designation of age-verification regulator

(1) Where the Secretary of State proposes to make a designation under section 18,
35the Secretary of State must lay before both Houses of Parliament—

(a) particulars of that proposed designation, and

(b) a statement of the reasons why the Secretary of State is satisfied about
the matters mentioned in section 18(5).

(2) The Secretary of State must not make the proposed designation until after the
40end of the period of 40 days beginning with the day on which the particulars
of it were laid.

(3) If either House resolves within that period that the Secretary of State should
not make the proposed designation, the Secretary of State must not make it.

(4) But subsection (5) applies, instead of subsections (2) and (3), where the
45proposed designation would be—

(a) the first to be made under section 18, or

(b) the first to be made under that section for the purposes of a particular
function.

(5) The Secretary of State may not make the designation unless it has been
5approved by a resolution of each House of Parliament.

(6) But subsections (3) and (5) are without prejudice to the Secretary of State’s
power to lay before Parliament particulars of further proposed designations in
accordance with this section.

(7) For the purposes of subsection (2)—

(a) 10where particulars of a proposed designation are laid before the House
of Commons and the House of Lords on different days, the later day is
to be taken as the day on which the particulars were laid before both
Houses, and

(b) in reckoning any period of 40 days, no account is to be taken of any time
15during which Parliament is dissolved or prorogued or during which
both Houses are adjourned for more than 4 days.

20 Age-verification regulator’s power to require information

(1) The age-verification regulator may by notice require a relevant person to
provide it with any information which it requires for the purpose of exercising,
20or deciding whether to exercise, any function under this Part.

(2) The power in subsection (1) may only be exercised to require a relevant person
to provide information which the age-verification regulator believes the
relevant person has.

(3) A “relevant person” is—

(a) 25an internet service provider, or

(b) a person who the age-verification regulator believes to be involved, or
to have been involved, in making pornographic material available on
the internet on a commercial basis to persons in the United Kingdom.

(4) A notice under subsection (1) must specify—

(a) 30the form and manner in which the information must be provided; and

(b) the time at which, or period within which, the information must be
provided.

(5) The power in subsection (1) is not exercisable in relation to information in
respect of which a claim to legal professional privilege (or, in Scotland,
35confidentiality of communications) could be maintained in legal proceedings.

21 Enforcement of sections 16 and 20

(1) The age-verification regulator may impose a financial penalty on a person
where it determines that the person—

(a) is contravening or has contravened section 16(1); or

(b) 40has failed to comply with a requirement to provide information under
section 20.

(2) The age-verification regulator may give a person an enforcement notice where
it determines that the person is contravening section 16(1).

(3) The age-verification regulator must not make a determination under
subsection (1) or (2) in relation to a person unless it has allowed that person an
opportunity to make representations about why that determination should not
be made.

(4) 5The age-verification regulator may—

(a) impose a financial penalty under subsection (1) without also giving an
enforcement notice under subsection (2);

(b) give an enforcement notice under subsection (2) without also imposing
a financial penalty under subsection (1).

(5) 10No financial penalty may be imposed under subsection (1) in respect of a
contravention of section 16(1) if—

(a) the contravention has ceased, and

(b) the limitation period in respect of the contravention has expired.

(6) For the purposes of subsection (5) the limitation period in respect of a
15contravention expires—

(a) at the end of the period of three years beginning with the day on which
the contravention began; or

(b) if sooner, at the end of the period of one year beginning with the day on
which the age-verification regulator became aware of the
20contravention.

(7) An “enforcement notice” is a notice which—

(a) specifies the determination made by the age-verification regulator
under subsection (2); and

(b) requires the person to whom it is given to end the contravention of
25section 16(1).

(8) An enforcement notice must—

(a) include reasons for the age-verification regulator’s decision to give the
notice; and

(b) fix a reasonable period for ending the contravention of section 16(1).

(9) 30A person to whom an enforcement notice has been given must comply with it.

(10) If a person contravenes subsection (9), the age-verification regulator may
impose a financial penalty on that person.

(11) The obligation under subsection (9) is also enforceable by the age-verification
regulator in civil proceedings—

(a) 35for an injunction;

(b) for specific performance of a statutory duty under section 45 of the
Court of Session Act 1988; or

(c) for any other appropriate remedy or relief.

(12) The imposition of a financial penalty (“the first penalty”) on a person in respect
40of a contravention of section 16(1) or subsection (9) does not prevent the
imposition of another financial penalty on that person under subsection (1) or
(10) (as the case may be) in respect of any continuation of that contravention
after the first penalty is imposed.

(13) For further provision about financial penalties under this section, see section
4522.

22 Financial penalties

(1) The age-verification regulator may impose a financial penalty on a person
under section 21(1) or (10) of such amount as the age-verification regulator
considers appropriate and proportionate to the contravention, or failure to
5comply, in respect of which it is imposed.

(2) But the amount must not exceed whichever of the following is greater—

(a) £250,000;

(b) 5% of that person’s qualifying turnover (if any).

(3) For the purposes of subsection (2), a person’s “qualifying turnover” is—

(a) 10the amount of that person’s turnover for that person’s most recent
complete accounting period; or

(b) where the age-verification regulator is deciding the amount of the
penalty at a time when that person’s first accounting period has not yet
ended, the amount that the age-verification regulator estimates to be
15that person’s likely turnover for that period.

(4) For the purposes of subsection (3), the amount of a person’s turnover for an
accounting period is, in the event of a disagreement between that person and
the age-verification regulator, the amount determined by the age-verification
regulator.

(5) 20In deciding the amount of the financial penalty, the age-verification regulator
must have regard to the guidelines or revised guidelines in force under this
section.

(6) A financial penalty under section 21(1) or (10) must be imposed by notice given
to the person on whom the penalty is imposed.

(7) 25The notice must—

(a) fix a time by which the penalty must be paid by that person to the age-
verification regulator; and

(b) in the case of a financial penalty under subsection (1) of section 21,
specify the determination made by the age-verification regulator under
30that subsection.

(8) A financial penalty received by the age-verification regulator must be paid into
the Consolidated Fund.

(9) The age-verification regulator must publish the guidelines it proposes to
follow in deciding the amount of a financial penalty under section 21(1) or (10).

(10) 35The age-verification regulator may revise the guidelines from time to time and
must publish any revised guidelines.

(11) The guidelines and any revised guidelines must be published in whatever way
the age-verification regulator considers appropriate for bringing them to the
attention of the persons who, in its opinion, are likely to be affected by them.

(12) 40The Secretary of State must lay before both Houses of Parliament the
guidelines, and any revised guidelines, published under this section.

(13) Before publishing the guidelines or any revised guidelines, the age-verification
regulator must consult—

(a) the Secretary of State; and

(b) 45such other persons as it considers appropriate.

(14) Before deciding how to publish the guidelines or any revised guidelines, the
age-verification regulator must consult the Secretary of State.

(15) In subsection (3)—

• “accounting period”, in relation to a person, means a period in respect of
  5which accounts are prepared in relation to that person or, where that
  person is an individual, in respect of that person’s principal business;

• “turnover”, in relation to a person, means the amounts derived from the
  provision of goods and services by that person, after deduction of trade
  discounts, value added tax and any other taxes based on the amounts
  10so derived.

23 Age-verification regulator’s power to give notice of contravention to
payment-services providers and ancillary service providers

(1) Where the age-verification regulator considers that a person (“the non-
complying person”) is—

(a) 15contravening section 16(1); or

(b) making extreme pornographic material available on the internet to
persons in the United Kingdom,

it may give notice of that fact to any payment-services provider or ancillary
service provider.

(2) 20A notice under subsection (1) must—

(a) identify the non-complying person in such manner as the age-
verification regulator considers appropriate;

(b) state whether it is subsection (1)(a) that applies or subsection (1)(b) or
both;

(c) 25provide such further particulars as the age-verification regulator
considers appropriate.

(3) When the age-verification regulator gives notice under this section, it must
inform the non-complying person, by notice, that it has done so.

(4) In this section a “payment-services provider” means a person who appears to
30the age-verification regulator to provide services, in the course of a business,
which enable funds to be transferred in connection with the payment by any
person for access to pornographic material or extreme pornographic material
made available on the internet by the non-complying person.

(5) In this section an “ancillary service provider” means a person, other than a
35payment-services provider, who appears to the age-verification regulator to—

(a) provide, in the course of a business, services which enable or facilitate
the making available of pornographic material or extreme
pornographic material on the internet by the non-complying person; or

(b) advertise, on or via any internet site operated by the non-complying
40person or via any other means of accessing the internet operated or
provided by that person, any goods or services provided in the course
of a business.

24 Meaning of “extreme pornographic material”

(1) In this Part “extreme pornographic material” means (subject to subsection (3))
45material—

(a) whose nature is such that it is reasonable to assume that it was
produced solely or principally for the purposes of sexual arousal, and

(b) which is extreme.

(2) For the purposes of subsection (1)(b), material is extreme if—

(a) 5its content is as described in section 63(7) or (7A) of the Criminal Justice
and Immigration Act 2008, and

(b) it is grossly offensive, disgusting or otherwise of an obscene character.

(3) Material to which paragraphs (a) and (b) of subsection (1) apply is not “extreme
pornographic material” if it is or was included in a classified video work,
10unless it is material to which subsection (4) applies.

(4) This subsection applies to material—

(a) which has been extracted from a classified video work, and

(b) whose nature is such that it is reasonable to assume that it was
extracted (with or without other material) solely or principally for the
15purposes of sexual arousal.

(5) In this section—

• “classified video work” means a video work in respect of which the video
  works authority has issued a classification certificate;

• “video work” means a video work within the meaning of the Video
  20Recordings Act 1984;

• “the video works authority” has the meaning given in section 17;

• “classification certificate” has the same meaning as in the Video
  Recordings Act 1984 (see section 7 of that Act);

• “material” means—

  (a)

  25a still image or series of still images, with or without sound; or

  (b)

  a series of visual images shown as a moving picture, with or
  without sound.

25 Age-verification regulator’s power to direct internet service providers to
block access to material

(1) 30Where the age-verification regulator considers that a person (“the non-
complying person”) is—

(a) contravening section 16(1), or

(b) making extreme pornographic material available on the internet to
persons in the United Kingdom,

35it may give a notice under this subsection to any internet service provider.

(2) The notice must—

(a) identify the non-complying person in such manner as the age-
verification regulator considers appropriate;

(b) state whether it is subsection (1)(a) that applies or subsection (1)(b) or
40both;

(c) require the internet service provider—

(i) to take steps specified in the notice, or

(ii) (if no such steps are specified) to put in place arrangements that
appear to the provider to be appropriate,

45so as to prevent persons in the United Kingdom from being able to
access the offending material using the service it provides;

(d) provide such information as the regulator considers may assist the
internet service provider in complying with any requirement imposed
by the notice;

(e) provide information about the arrangements for appeals to which
5section 18(6)(d) applies;

(f) provide such further particulars as the regulator considers appropriate.

(3) The steps that may be specified or arrangements that may be put in place under
subsection (2)(c) include steps or arrangements that will or may also have the
effect of preventing persons in the United Kingdom from being able to access
10material other than the offending material using the service provided by the
internet service provider.

(4) The notice may require the internet service provider to provide information
specified in the notice, in a manner specified in the notice, to persons in the
United Kingdom who—

(a) 15attempt to access the offending material using the service provided by
the provider, and

(b) are prevented from doing so as a result of steps taken, or arrangements
put in place, by the provider pursuant to the notice.

(5) The notice may specify the time by which the internet service provider must
20have complied with any requirement imposed by the notice.

(6) The notice may be varied or revoked by a further notice under subsection (1).

(7) The age-verification regulator may publish, in whatever way it considers
appropriate, a notice given under subsection (1).

(8) It is the duty of an internet service provider to comply with any requirement
25imposed on it by a notice under subsection (1).

(9) That duty is enforceable in civil proceedings by the age-verification
regulator—

(a) for an injunction;

(b) for specific performance of a statutory duty under section 45 of the
30Court of Session Act 1988; or

(c) for any other appropriate relief or remedy.

(10) Before giving a notice to an internet service provider under subsection (1), the
age-verification regulator must—

(a) inform the Secretary of State of its decision to do so, and

(b) 35give notice of that decision to the non-complying person under this
subsection.

(11) A notice under subsection (10) (other than notice of a decision to revoke a
notice under subsection (1)) must—

(a) where subsection (1)(a) applies—

(i) 40say why the regulator considers that the non-complying person
is contravening section 16(1), and

(ii) indicate what steps the regulator considers might be taken by
the non-complying person to comply with that section;

(b) where subsection (1)(b) applies, say why the regulator considers that
45the offending material is extreme pornographic material;

(c) indicate the circumstances in which the regulator may consider
revoking the notice it has decided to give under subsection (1) and the

manner in which the non-complying person may notify the regulator of
steps taken to satisfy the regulator that the notice ought to be revoked;

(d) provide information about the arrangements for appeals to which
section 18(6)(e) applies.

(12) 5In this section “the offending material”, in relation to a non-complying person,
means the material which the age-verification regulator considers is—

(a) being made available in contravention of section 16(1) by the non-
complying person; or

(b) extreme pornographic material which the non-complying person is
10making available on the internet to persons in the United Kingdom.

26 No power to give notice under section 25(1) where detrimental to national
security etc

(1) Before giving a notice under section 25(1) requiring an internet service
provider to—

(a) 15take steps referred to in section 25(2)(c)(i), or

(b) put in place arrangements referred to in section 25(2)(c)(ii),

the regulator must consider whether the steps or arrangements would be likely
to be detrimental to a matter mentioned in subsection (3).

(2) The regulator may not give a notice under section 25(1) where it appears to the
20regulator that the steps or arrangements would be likely to be detrimental to
any of those matters.

(3) The matters are—

(a) national security;

(b) the prevention or detection of serious crime, within the meaning given
25in section 263(1) of the Investigatory Powers Act 2016;

(c) the prevention or detection of an offence listed in Schedule 3 to the
Sexual Offences Act 2003.

27 Guidance to be published by age-verification regulator

(1) Subject to the following provisions of this section, the age-verification
30regulator must publish, and revise from time to time—

(a) guidance about the types of arrangements for making pornographic
material available that the regulator will treat as complying with
section 16(1); and

(b) guidance for the purposes of section 23(1) and (5) about the
35circumstances in which it will treat services provided in the course of a
business as enabling or facilitating the making available of
pornographic material or extreme pornographic material.

(2) Once the regulator has prepared a draft of guidance it proposes to publish
under subsection (1)(a), it must submit the draft to the Secretary of State.

(3) 40When draft guidance is submitted to the Secretary of State under subsection
(2), the Secretary of State must lay that draft guidance before both Houses of
Parliament.

(4) Once the regulator has prepared a draft of guidance it proposes to publish
under subsection (1)(b), it must submit the draft to the Secretary of State for
45approval.