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Session 2000-01
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Standing Committee Debates
Tobacco Advertising and Promotion Bill

Tobacco Advertising and Promotion Bill

Standing Committee A

Thursday 1 February 2001(Morning)

[Mr. Humfrey Malins in the Chair]

Tobacco Advertising and Promotion Bill

Clause 2

Prohibition of tobacco advertising

Mrs. Caroline Spelman (Meriden): I beg to move amendment No. 2, in page 1, line 19, leave out

    `a separate entity containing, or being,'.

The amendment is a probing amendment to find out how the Bill will work in practice. Many parties will be affected by a ban on tobacco advertising and the amendment would introduce an element of practicality into the clause. What lays behind the proposal to omit any reference to a separate entity is my worry that it is unreasonable to expect magazine publishers to be responsible for leaflets containing tobacco advertisements that are subsequently placed inside the magazines before they are sold. Paper print distribution is a high-speed bulk business and it is not unusual for inserts to be placed in newspapers and magazines. I am sure that all members of the Committee have picked up newspapers and held them up the wrong way only to find leaflets falling on to the pavement that they then have to scoop up.

There is another practical difficulty. I doubt whether editors of the large broadsheet newspapers are aware of how many inserts are placed in their newspapers on any particular day. They would be more concerned about the editorial content. I am most worried about the little guys at the bottom of the system who may be caught by the clause, particularly those in the corner shop. They do not have the time to check each magazine, periodical or newspaper for separate entities that may have been inserted in them.

Any member of the Committee who visited his or her paper shop this morning, in the murky gloom of London, will know how busy newsagents are from the early hours. Great stacks of papers are often thrown outside the door in the small hours and have to be rapidly placed in the shop for sale. Sometimes, the string ties are just cut and the papers left in the pile.

I asked my newsagent whether there was any practical way in which he can reassure himself about what is or is not inserted separately into the newspaper. He cannot—certainly not in the time scale within which he operates. The amendment would ensure that innocent people are not caught by the Bill. It may not provide sufficient protection for people, but I hope that the Minister will understand the spirit behind it. It is designed to examine the way in which material is distributed and to ensure as far as possible that people would not be caught unfairly by the Bill.

The Minister for Public Health (Yvette Cooper): I understand that you had a very early start this morning, Mr. Malins, to ensure that we could start on time. Thank you.

The amendment would make it unclear whether leaflets, flyers or attachments inside publications that include tobacco advertisements would be covered. That is a serious loophole. It is true that when we open our Sunday newspapers a load of leaflets fall on the floor. Clearly, many companies and businesses regard that as an effective way to advertise their products. To allow such advertising would be a significant loophole in the Bill, and a mistake.

The hon. Lady was concerned that newsagents would need to check every magazine. The Bill sets out clear defences for people who could not reasonably be expected to know whether a publication contained a tobacco advertisement. If they had been told that a magazine was likely to be distributing a flyer, there would be some obligation on them to check, but in the unlikely event that someone had slipped in surreptitiously a leaflet that no one knew about—and could not reasonably be expected to have known about—they would have a defence under the Bill.

The defences appreciate the situation of an innocent person in the distribution chain, who did not know—and could not reasonably be expected to know. We shall discuss those defences later. They are reasonable. It is important, however, to include flyers and leaflets because they make so much difference and are an important part of the business of advertising.

Mrs. Spelman: When we debate the defences, we will be able to probe the Government further on how someone can prove that they could not reasonably have known. That comes close to the position that I was coming from. In some cases it is hard to prove—it is hard to find words that demonstrate the necessary objectivity. One's view of whether one could reasonably have known about something is inevitably subjective. Someone might say, ``You definitely should have known what was going to happen'', but there may be extenuating circumstances. Only the individual knows why they might not reasonably have been expected to know.

When we deal with the defences, I will spend more time probing the Government about how someone can successfully prove that defence. When we return to the practicalities of defence issues, we shall have another chance to go into the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mrs. Spelman: I beg to move amendment No. 3, in page 1, line 22,

    leave out from `form' to end of line 23 and insert `or participating in doing so'.

The Chairman: With this it will be convenient to take the following:

Amendment No. 20, in page 1, line 24, leave out subsections (5) and (6).

Government amendment No. 16.

Amendment No. 4, in page 1, line 25, leave out `carry on business' and insert

    `transact business with a person living'.

Government amendments Nos. 18 and 19.

Amendment No. 8, in clause 5, page 3, line 7, leave out `carry on business' and insert

    `transact business with persons living'.

Mrs. Spelman: This is an important amendment to an important clause. At one level, it deals with a different subject, namely, internet service provision, which includes electronic mailing. I hope that, under your good chairmanship, Mr. Malins, we shall be able to give the matter a good airing. It is the only clause that deals in detail with internet service providers. I am anxious that we articulate their concerns. It is not easy for any hon. Member because the new technology moves fast. As I do not profess to be an expert, I was hoping that my hon. Friend the Member for South Dorset (Mr. Bruce) would be here by now: he is one of my allies. That is a veiled instruction to bring up the reserve.

I hope that some Committee members are highly conversant with internet service provision, because we have to try to understand the new technology. We are legislating while it is in full growth and the implications are difficult for us to grapple with.

I shall concentrate on electronic provision, although the clause relates to other forms of distribution and advertising. However, we can return to those in the stand part debate. I do not intend to touch on those matters in speaking to the amendments.

The amendments focus on electronic advertising and internet service providers. In tabling their amendments the Government acknowledge the anxiety expressed on the Labour Benches, too, that the Bill as drafted might not work ideally for internet service providers. I am pleased that the Government have tabled amendments, as it will help us to work together towards a better form of words that does not unnecessarily penalise such people if at all possible.

We are discussing means of transmission. Three main functions are involved. The first relates to the provision of access to the web and theoretically stopping specific sites being reached, the theory of which will come under scrutiny when we consider the amendments.

In practice, the ability to stop specific sites being reached would require enormous resources and may not be feasible or practical for ISPs. They have pointed out that banning a site would give it notoriety, prompting many people to access it. That is perverse, but we all understand human nature. No sooner is something banned than people are interested and want to find out why. The ISPs have a fair point.

Internet service provision, by definition, operates in a global market. It is therefore interesting for us to consider what could realistically be the legal parameters of the bill. It would be difficult for the United Kingdom Government to shut down a foreign website that carried tobacco advertisements, as we do not have the jurisdiction to do so. Electronic advertising knows no geographical boundaries in the way that paper or print could be stopped at port or airport. The usual physical barriers do not apply.

The second function that will be affected is the ISPs' provision of hosted web space for websites. In this case, ISPs have more control and can be more effective in scrutinising what they are hosting, but the difficulty for the largest internet service providers is that they have many websites. It would be a mammoth task for the ISP to act continuously as censor and scrutineer for every detail that goes on to them. Again, it is a question of resources and the feasibility of policing hosted websites in that way.

The third function of ISPs that will be affected by the way in which the Bill is drafted is the provision of newsgroups, or bulletin boards, on which articles or advertisements can be posted. An article posted with an ISP newsgroup can be picked up by linked newsgroups and run by other ISPs world wide. A double problem is involved. Such items may be pinned up on a billboard, perhaps in this country, and may subsequently, in the absence of physical boundaries, become accessible globally—and vice versa. Through the linkage, an ISP may provide access to bulletin boards and billboards in other countries, over which we have no jurisdiction, that contain advertisements for tobacco products. Checking everything on such newsgroups and bulletin boards therefore becomes impossible. The purpose of amendment No. 3 is to demonstrate that it is unfair to expect internet service providers to be responsible for tobacco advertisements on hosted websites and the advertising bulletin boards to which they are linked.

9.15 am

The group of amendments contains many that I tabled. Amendment No. 20 has something in common with the Government amendments. I propose that we leave out subsections (5) and (6), because the Bill is not the right place for such provisions. It is incidental that the focus of the clause on advertising by ISPs is tobacco. At the root of the problem is how to legislate for the activity of ISPs generally. We might as well be discussing a different product.

If I understand correctly, subsection (5) will mean that it is not an offence for a person who does not carry on business in the United Kingdom to publish a tobacco advertisement on a website that is accessed in the UK. That will also apply to whoever devises or causes an advertisement, such as the ISP. Under subsection (6), an ISP that is not aware of a tobacco advertisement is not regarded as having published or distributed it. If those subsections are left in the Bill, they will have a restrictive effect on the internet service industry.

The Government claim that they want to make Britain a world and European leader in e-commerce. I remember listening to the Minister responsible for the matter speaking at length on the subject, and I am sure that she passionately believes in it. The Government are unlikely to be able to achieve that goal if subsections (5) and (6) are left in the Bill.

In the Bill, ISPs are regarded as publishers and/or distributors of web pages and any tobacco advertisements that might be contained within them. Interestingly, that is not how other European countries regard the role of ISPs. I am sure that the Minister is aware that, in common with other member states, we must transpose European directive 2000/31 on e-commerce into law by 17 January 2002. That directive treats ISPs not as publishers or distributors, but as conduits for the transmission and immediate and temporary storage of information.

The Committee will understand straight away that a conduit is a different concept from that of a publisher or distributor as described in the Bill. Under the European directive, ISPs are placed in a better position because they do not have responsibility for content. Therefore, member states cannot impose on them a general monitoring obligation of the sort that we would be imposing if we allowed the clause to be included in the Bill as drafted. There is considerable potential for the United Kingdom's position to be incompatible with European law. I will be interested to hear the Minister's comments on the compatibility of the Bill with that directive.

As all advanced developed economies are trying to inch their way forward in dealing with the new technology, it might interest the Committee to know that in the United States of America, ISPs have immunity over any content to which they provide access. Given that the United States is at the cutting edge of much of the new technology, we should note that position with interest. Surely we do not want to place ourselves at a competitive disadvantage to the leading-edge competitor in new technology.

The requirements placed on internet service providers who carry on their business in this country—[Interruption.]


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