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7.45 pm
Mrs. Spelman: Just before you arrived, Madam Deputy Speaker, I described this group of amendments as involving the whole world, his wife and the kitchen sink. Unfortunately, we have added a few more categories as a result of debating these diverse amendments. Regrettably, I am none the wiser for my probing amendments, except perhaps on the last point about airline code sharing. The Minister was helpful and clear on that point, and as her remarks will be reported in Hansard they will provide guidance to UK airlines and their code-sharing partners, which I am sure they will find helpful.
The Government's description of their amendments has left me considerably more confused. I am grateful to my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) for his remarks, but we have been left completely in the dark about the definition of a principal market. That has not inspired confidence in Government amendment No. 40.
Amendment No. 2 is a probing amendment, and the debate on it has been useful because we have learned that the Government understand our disquiet about the possibility of product placement increasingly being used as an advertising vehicle when conventional forms of advertising are banned by the Bill. However, I was further disquieted when the Minister defined "product placement" as a sponsorship agreement. We are going round and round in circles because the Bill does not clearly define "sponsorship agreement".
The lateness of the hour and the fact that we have to curtail the Report stage in less than half an hour means that it is increasingly unlikely that we will get to the amendments on sponsorship agreement. [Interruption.] The Government imposed the deadline. My right hon. Friend the Member for Bromley and Chislehurst and my hon. Friend the Member for Basingstoke (Mr. Hunter) have tabled an important amendment in that group which seeks to make it clear that a sponsorship agreement is one in which a party to the agreement makes a contribution, in the course of business, towards a public event or activity. I am uneasy about the Government's interpretation of product placement as a sponsorship agreement, which has a weak definition in the Bill that we will probably not now be able to debate. The increasing confusion about those terms demonstrates that the correct course of action is to withdraw the amendment but to register the fact that we are left more confused by the debate. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2
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'
'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.
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."
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