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Tobacco Advertising and Promotion Bill

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Yvette Cooper: The question for us is whom we are able to prosecute. If the advertisement were on an ISP based here, the ISP would be caught only if the defences were not met—in other words, once it was made aware of it. If the advertisement had been devised by a company based in the United Kingdom, that would also be caught. However, we do not have extraterritorial jurisdiction and we would not be able to prosecute a company based abroad that was somehow linked in the chain. I recognise that the internet makes the matter complicated, but we have to be aware of the territorial limits of the ban that we are able to impose.

Mr. Ian Bruce: This point goes to the heart of whether one is simply creating an enormous loophole that will ensure that people who are manufacturing tobacco products overseas can continue to advertise while people within the United Kingdom cannot. Subsection (2) refers to a person who distributes tobacco in this country. Am I right in saying that if a tobacco distributor in the UK purchases from France, Germany or elsewhere supplies of tobacco manufactured outside the UK, the manufacturer of which advertises his products via the internet—not specifically for the UK market—the manufacturer would not be caught by the Bill and neither would the distributor because he is not pressing the product, the manufacturer is?

Yvette Cooper: The Bill refers not to distributing products but to distributing and publishing advertisements. The hon. Gentleman is right that we will not be able to prosecute companies that advertise from abroad because we do not have extraterritorial jurisdiction. However, if companies have branches or any business presence in the UK, they will be covered by the Bill.

Mr. Bruce: I direct the Minister's eyes to the first line of subsection (2). It is, of course:

    ``A person who in the course of a business prints, devises or distributes''—

I am sorry, I am incorrect and the Minister is correct. The case that I have described is one in which a company manufactures its cigarettes overseas and advertises them, and an independent company within the United Kingdom imports those same cigarettes. Is that company caught? It is within our jurisdiction, and the advertisements are provided by the manufacturer, not the distributor.

Yvette Cooper: The question for the courts would be whether the company was involved with the advertisement in any sense, or whether it could be said that it was in some way paying for that advertisement or responsible for it. The Bill states that those who are involved in devising, distributing, printing or publishing the advertisement and who carry on business in the UK will come under the scope of the Bill. If they do not carry on business in the UK, the Bill cannot apply to them as we do not have extraterritorial jurisdiction. However, we will continue to pursue a tobacco advertising ban at European level and we are keen to see proposals from the European Commission. We are also keen to work with the World Health Organisation to look at the international framework of tobacco control.

Government amendments Nos. 16 and 18 are drafting and consequential amendments which tidy up and clarify the Bill. Government amendment No. 19 is the substantive one. In part, its purpose is to clarify and to avoid overlap in the drafting, but there is also one change in substance to which I draw the Committee's attention.

The Bill provides general defences for those involved in publishing and distribution that they did not know and had no reason to suspect that tobacco advertising was taking place. Internet service providers will have a stronger defence under clause 2(6) if they were unaware of the advertisement. They may have reason to suspect such advertising, but the process of checking is so complex and arduous that they should have the stronger defence of being unaware. That defence is replicated in Government amendment No. 19. We have also strengthened the defence for those involved purely in electronic distribution and that includes BT, companies that provide the wires and those involved in the chain beyond ISPs. That means that ISPs and others involved in electronic distribution are under no obligation to check. They are defended until they are made aware of such advertising.

The hon. Member for Meriden asked whether ISPs should be regarded as publishers or distributors. We are aware that different views are held about that issue. The Bill does not define whether ISPs should be regarded purely as publishers or distributors. Case law and legislation may develop in such matters, however, and we want to ensure that the ISPs have a defence, regardless of whether they are publishers or distributors and how they may be described in future case law or legislation.

Mr. Bruce: What is the Minister's definition of internet service providers? Listening to her speak, I do not think that she knows.

Yvette Cooper: Without more warning, I shall not attempt to give the technological description of internet service providers. There is a strong view that they are merely distributors and that they become publishers when they are made aware of something. However, it is important for the Bill to keep pace with changing technology, case law or legal definitions, so we want to provide the same defences of being unaware if such bodies are regarded as publishers or distributors. If publishers and distributors are involved, even if they are not ISPs in the future, we must recognise that the Bill deals with a developing area and that matters that are covered by electronic means should have particular additional defences beyond those that are applied to what is in print. We must remember that the ISPs, the internet and electronic publishing would be included under the Bill unless we explicitly excluded them, and we are going further by recognising such circumstances and providing an extra defence.

Mr. Bruce: I notice that the Minister has received a note to help her. We recognise yahoo.com as being an internet service provider, but when someone pays to call up a provider on his BT line, he pays part of the money to BT, part of it to the ISP, part of it to AT&T and part of it to just about everyone in the country. Unless we define what is meant by an internet service provider, we shall be defining companies such as BT, which might not be the ISP, as the body that is publishing the advertisement and it will not have the defence that the Government are trying to give it, while those who want to get round the law can do so. I shall go into the further problems later in the sitting.

Yvette Cooper: The amendment would provide the defences. It would ensure that companies such as BT that are involved in electronic distribution also have the defence that they were unaware. The current drafting restricts that defence to ISPs, but the amendment broadens that. The hon. Member for South Dorset is right that the technology or definitions may change in time. At present, ISP is a recognised term and we understand what it means. However, as technology is changing rapidly, we should go further. With Government amendment No. 19, in relation to a tobacco advertisement that is distributed as mentioned in section 2(4)—by electronic means—an ISP will also have the defence that it was unaware of what it distributed and that, having become aware, was unable to prevent its further use, or that it

    ``did not carry on business in the United Kingdom at the...time.''

By extending it, we provide a defence for companies such as BT, which might receive payment in the way that the hon. Gentleman describes.

9.45 am

Mr. Bruce: The Minister will say that that is a defence for the ISP, which we have not yet defined, and not for the other people who might be involved in the electronic transmission. The amendment states:

    ``In relation to a tobacco advertisement which is published or caused to be published by electronic means'',

and then gives the defence only to the person we have yet to define as an ISP. That is where the drafting is wrong.

Yvette Cooper: The hon. Gentleman will notice that subsection (5A) in the amendment states:

    ``In relation to a tobacco advertisement which is distributed as mentioned in section 2(4), it is a defence for a person charged with an offence under section 2(2) of distributing it or causing its distribution to prove''

that that person was unaware, that they were unable to prevent it and that they

    ``did not carry on business in the United Kingdom at the relevant time.''

The defence has been widened to include BT through subsection (5A). That is the content to which I was referring but which has explicitly changed when compared with the previous drafting.

Mr. Peter Luff (Mid-Worcestershire): I am finding this subject genuinely interesting. How technology interacts with law making is always problematic, as I have said on many occasions. May I be clear? The definition of ISP could be important. I have just been signing up with an ISP—Demon—during this Committee. If I access an ISP through a BT line—which I did—what role does BT play? Subsection (5A)(b) of amendment No. 19 states:

    ``that, having become aware of it, he was not able to prevent its further distribution''.

BT could cut me off from Demon, if Demon were carrying a tobacco advertisement. There would be a potential problem for BT in such circumstances.

Yvette Cooper: We have considered the matter in detail to ensure that the defence would work for BT in such circumstances. As I understand it, for BT to cut someone off it would have to know that the person was going to visit a particular website on a particular day at a time when a tobacco advertisement was being shown. There is no way that BT could be aware of that, or, therefore, prevent it, so it would have a defence. With current technology, if BT is unaware—which it is bound to be—of one's intentions on a particular Sunday afternoon when one feels like surfing the web, it could not prevent that particular encounter with a tobacco advertisement.

 
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