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Standing Committee A
Thursday 9 May 2002
[Mr. David Amess in the Chair]
Prohibition of tobacco advertising
Tim Loughton (East Worthing and Shoreham): I beg to move amendment No. 3, in page 1, line 16, leave out from 'form' to end of line and insert
'or participating in doing so'.
The Chairman: With this it will be convenient to take amendment No. 19, in page 1, line 16, after 'and', add 'knowingly'.
Tim Loughton: Welcome back to the Committee, Mr. Amess. Parts of the clause are pertinent to electronic communications and people involved in the internet industry. Such matters have been debated at length both in the House and in another place, but several issues have not been properly dealt with, hence our amendment. For precautionary purposes, I shall declare what is not a particular interest. I was a non-executive director of an internet web posting company, which was taken over by another American company in whose equity I am an increasingly modest holder—given what has happened to its shares. That experience has given me some knowledge of the problems that may be faced by such companies should the Bill be enacted in its present form.
Subsection (3) is a catch-all provision. It takes in almost every conceivable person who may have contributed towards the distribution of a tobacco advertisement in electronic form. I am talking not only about an internet service provider or a web posting company, but those businesses that may have been involved in distribution, or had provided the means of transmission, the hardware, the software, the telephone lines or the computer equipment. The amendment would remove ''participating in doing so'' from the provision. Under the Bill, those who are connected with the business, some of whom I have listed and who have no knowledge about—or make a contribution to—the distribution, dissemination or promotion of tobacco advertisements could be deemed culpable, because they had been involved in the equipment that facilitates the dissemination of information.
The amendment would still make it illegal to distribute tobacco advertisements in the form set out under the Bill, but it would limit the offence to those persons who were instrumental in that distribution. Surely it is not right that persons who could not possibly remove offending tobacco adverts that were distributed by electronic means are at risk of committing an offence. When I was involved with an internet company, we hosted websites for small
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businesses and had a filter mechanism for clients, especially those who wanted to advertise products of a slightly lurid nature or fairly salacious photographs. We activated that filter by our code of conduct. However, that is increasingly difficult when those with websites can update them directly without having to go through the website provider, as indeed many Members do, including me.
Of course, it is difficult for the website host constantly to check for offending material. Given that there are millions of pages of internet websites to be examined, that is an almost impossible task. That is difficult enough for those directly involved in the internet industry whose business it is to host websites, but it would be impossible and irrational to expect those loosely involved with transmission lines, and other equipment involved in making available or hosting such material, to have any liability for material that falls foul of censorship laws, or, in this instance, prohibitions on tobacco advertising. That is why we would like to make it clear that only those directly involved in the transmission and communication of such prohibited adverts should be deemed in any way culpable under the Bill.
I would be grateful if the Minister were to elaborate on compliance with the e-commerce directive, which was to have been implemented by all European Union member states by 17 January, although it has not been. I am sure that she has had discussions and has taken advice on the subject. We treat internet service providers rather differently from other EU states. Under the directive, as is the norm in other EU states, ISPs are treated not as publishers or distributors but conduits for the transmission and immediate or temporary storage of information.
A conduit is different from a publisher. The Bill could be interpreted as treating ISPs as publishers, rather than as conduits providing the mechanism or framework for people to communicate their message, advert and wares for sales, for example. If ISPs are to be treated as publishers, there will be many implications outside the Bill for the liabilities of ISPs and others involved in putting together, hosting or transmitting websites on the internet. The Bill may be incompatible with EU law. It is also worth noting that in the United States, internet service providers have immunity for material to which they provide access.
Perhaps the Minister can allay our fears and guarantee strongly and convincingly that the sort of people who I have listed will not be included under what appears to be a catch-all phrase. As an adjunct to the amendment, we have tabled amendment No. 19, which would add the word ''knowingly'' to subsection (3). The Bill would then catch out only those actively participating in distributing, communicating or publishing prohibited tobacco adverts. Anyone who could be said, with any reasonableness—we will consider that idea under other clauses—to have done so unwittingly should not be caught out by the provision.
We are trying to make it clear that those likely to fall foul of the Bill are those who can reasonably be expected to be involved in controlling the material, rather than those who are completely subsidiary to
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that process, and rather than providers such as telecom companies.
John Barrett (Edinburgh, West): Any legislation that affects the internet affects a moving piece. I look forward to the Minister's assurance that the defences in clause 5 are adequate to cover all the possibilities that could arise from the fairly flexible and wide-ranging section in clause 2.
Advertising through the web is different from that through print and other media, and it is difficult to frame legislation to deal adequately with events that change daily. Anyone who has had any involvement with the internet, or the web, is aware of the wide variety of material available, and the ability to restrict tobacco advertising on the web will create a significant problem for anyone who deals with it. We must rely on the defences in clause 5, which states that a
''person does not commit an offence . . . if he did not know, and had no reason to suspect, that the purpose of the advertisement was to promote a tobacco product.''
I should like assurances that the defences in clause 5, on which we must rely heavily, will deal with any problems that the clause may cause.
Mr. David Wilshire (Spelthorne): I hope that the Government will take the amendments extremely seriously. If I as a layman in such matters understand the Bill correctly, we have a curious position. The part about
''providing the means of transmission''
is the one that bothers me most. As my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) says, that includes a huge number of people and businesses, and could make criminals out of an enormous number of law-abiding people.
I am not an expert—indeed, I am a total novice—about IT, but I believe that I have enough of a grasp to get the technical words right. If I understand how these things work, one first of all needs hardware—a computer, for example—to have a means of transmission. Without that, it is not possible. If someone who provides the means of transmission is to be caught by the provision, presumably that includes everyone working in PC World who sells computers that could be used. Nothing states that the person in PC World has a defence in saying that he did not know, unless the amendment is accepted. Therefore, everyone who works in PC World, Dixons, Currys, or anywhere else where people buy computers, or hardware, might be deemed to be helping the means of transmission.
Mr. Kelvin Hopkins (Luton, North): I do not follow the hon. Gentleman's argument. Is he suggesting that someone who sells a motor car is committing a crime because the car can be used in a criminal way? That is clearly nonsense.
Mr. Wilshire: One of the reasons that the hon. Gentleman does not follow my argument is that I have not yet had a chance to develop it. However, in due course, as I do so, perhaps all will become clear to him.
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His example of a motor car salesman is interesting, because it makes my point.
I am not suggesting that in common law someone who sells computers might be caught. The hon. Gentleman is right. In common law, someone who sells a car cannot be held responsible for anything that the car is used for afterwards, provided that the car is in a proper state when sold. However, the difference between the hon. Gentleman's example and the matter under discussion is that the Bill would, if applied to the motor trade, provide that, irrespective of whether people know or do not know, if they sell a car that is later used for a crime, they would be caught.
That is exactly my point. The hon. Gentleman is correct to say that it would not apply to motor cars. My argument is that it should not apply to those who work for PC World, Dixons, Currys or anyone else, or people in the second-hand business. If I want to get caught up in the tobacco advertising business and buy second hand from a colleague a computer that is surplus because he uses stuff provided by the House, presumably under the Bill the person who sells me his surplus computer that I subsequently use for that purpose is providing a means of transmission. The hon. Gentleman is right in thinking that that is absurd. That is exactly my point. The clause is absurd and should not be in the Bill.
That is the situation with hardware. I understand my computer and, with my limited knowledge of websites, I know that I need software to make my hardware work. Are we seriously suggesting that everyone working for a software house based in the UK that provides software for my computer will be involved? My knowledge is limited, but I get the impression that many items of software are of a general nature. It is not as if one can go into a shop and say, ''I want to buy software that will do only this.'' A range of software will enable one to access all sorts of information.
Unless the Bill is amended, every person involved in the software business will be guilty of
''providing the means of transmission.''
I hope that the Minister acknowledges that that is absurd and does something about it. The Bill catches all the shop assistants in PC World, Dixons and Currys, and all those who work in software houses. We are doing well.
I tend to use mail order to buy IT equipment, whether software or computers. I place my order, and for as long as Consignia still exists and is willing to deliver packages, it will bring me my goods. Presumably, everyone involved in the delivery of my package, including the freight forwarding business that collects the computer from PC World and delivers it to my house, will also be
''participating in . . . providing the means of transmission.''
The Bill has managed to catch all those people as well. We are doing well.
I tend to use my credit card to make purchases. I buy computers and software by using my Visa or MasterCard. Therefore, those companies are funding
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the purchase. People in the banking and credit card industry are making it possible for me to buy IT goods, so they are also
''participating in . . . providing the means of transmission''
because they have made the money available for me. Those working in Dixons, Currys, PC World, the Post Office or Consignia, lorry drivers and the entire banking industry are caught by the Bill.