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Lord Filkin: The Government support Amendment No. 39 to delete subsection (5) of Clause 5. Clause 5(5) provides defences for Internet service providers when they are deemed to have Xpublished" a tobacco advertisement. As the noble Lord, Lord Lucas, has previously indicated, this measure has caused considerable concern to Internet service providers, who claim that their activity does not amount to publishing.
The question of whether ISPs are publishers or distributors is complex and there is at present no legal certainty. It was for that reason that the government Bill was amended in Committee in another place to ensure that, should they be found to have published a tobacco advertisement, ISPs would be furnished with a robust defence.
Nothing in the Bill states that ISPs are necessarily publishers; the measure in question merely states that in any case where an ISP publishes an advertisement by electronic means there is the defence that he was unaware that what he had published was, or contained, a tobacco advertisement.
Clause 5(5) has caused considerable concern for Internet service providers. The noble Lord, Lord Lucas, brought their representatives to see the noble Lord, Lord Hunt, in connection with our earlier Bill.
They made it clear that they had no intention of trying to evade their responsibilities but argued strongly that the clause be dropped.Although the Government do not accept the claim that ISPs can never be Xpublishers", they believe that subsection (5) of Clause 5 can be deleted without weakening the Bill. The Government are committed to supporting the e-commerce industry and therefore support the amendment, which clearly reflects a matter of concern to ISPs.
In due course the Government will lay regulations which implement in the United Kingdom the provisions of the e-commerce directive. These regulations will limit the liability of intermediaries such as ISPs to circumstances in which there is actual knowledge of illegal activity and corrective action is not taken expeditiously. Obviously, the provisions of this Bill will need to be fully consistent with those regulations in the interests of legal clarity and certainty.
The Earl of Northesk: The Minister suggests that there is uncertainty around the issue of whether ISPs are publishers and I can probably agree with the thrust of his comments. However, will he confirm that Article 12 of the directive states clearly that ISPs are Xmere conduits"? There is another issue that intrigues me. There is a requirement for member states to transpose that directive into national law by 17th January. I do not know what the Government's timetable is on that matter. I should be interested to hear what light the Minister can shed on that, particularly as it is my understanding that the DTI has indicated that it is its intention, as regards ISP liability on this point, to transpose the directive word for word.
Lord Filkin: As has been pointed out, ISPs can be mere conduits under Article 12. But I am advised that cacheing under Article 13 and hosting under Article 14 are also relevant to the ISP position. I do not believe that I can clarify the matter more other than to say that clearly the Government's intention is to make the Bill, if it progresses, fully compliant with the European regulations, as previously indicated. Further details of that will be provided later.
Lord Clement-Jones: I, too, very much take on board the intent behind the amendment and I am very pleased that the Government accept the force of it. I have the pleasure and privilege of having the e-commerce directive in front of me. It is a splendid piece of work. I read it every day if I possibly can for amusement—especially when trying to get to sleep.
Article 12 is headed XMere Conduit", but that is only where those words appear. If one looks through the article, it is not entirely clear whether that constitutes what in the UK one might consider legally to be a mere conduit. Of course, as the noble Lord, Lord Filkin, mentioned, cacheing under Article 13 and hosting under Article 14 are activities which can be carried out by Internet service providers and, in a sense, they go beyond the mere duty of being an Internet service provider. Therefore, the position is not
entirely clear. However, I believe that ISPs should be reassured to some extent that, if the amendment were to be accepted, greater consistency—whatever that may be—would be achieved with the e-commerce directive. On those grounds, I am very happy to support the amendment.
Lord Lucas: I am very grateful for what the Minister said. I am sure that the Internet service provider industry will be too. This matter reflects a much wider concern among ISPs; that is, that they do not wish to be regarded under any circumstances as a publisher. Were they to be regarded as such, there would be many implications for them under other statutes and other regulations, and it would make their business extremely difficult. Therefore, although I believe that they understood from the first that the intention of this clause was to provide them with a defence, the very fact that it referred to them as a Xpublisher" meant that the ensuing problems would outweigh any benefit which would come from the additional protection that they would receive were they ever to be a publisher. Therefore, I am extraordinarily grateful to the Minister.
The Deputy Chairman of Committees (Viscount Allenby of Megiddo): I should inform the Committee that, if Amendment No. 39 is agreed to, I cannot call Amendments Nos. 40 to 43 under the pre-emption rules.
On Question, amendment agreed to.
[Amendments Nos. 40 to 43 not moved.]
Lord Lucas moved Amendment No. 45:
- Page 3, line 19, after Xnot" insert Xreasonably".
The noble Lord said: Amendment No. 49, which is not grouped with Amendment No. 45, has something of the same flavour to it. Therefore, if it is for the convenience of the Committee, I shall cover it at the same time. The point here is that an obligation is imposed by this subsection on Internet service providers to do something about a tobacco advertisement which is found to be—
Lord Hunt of Kings Heath: Perhaps the noble Lord will forgive me. Will he clarify whether he is also speaking to Amendment No. 46? I did not quite catch his opening remarks.
Lord Lucas: Amendment No. 46 is not in my name. Therefore, I was not intending to speak to it. I imagined that the noble Earl, Lord Howe, would speak to it. It seems to address very much the same point, and I am happy that the two amendments are grouped together. However, I was addressing only Amendment No. 45.
Quite rightly, when it is discovered that an ISP is hosting or acting as a channel for a tobacco advertisement, an obligation is imposed on him by this subsection in Clause 5 to have it removed. In many
circumstances, that will not be a problem. If it is found that one of the ISP's customers is the source of a tobacco advertisement, he can cut off that customer. If it is a website that he is hosting, he can have it expunged from his site. That should be an absolute obligation. However, when I come to discuss Amendment No. 49, there will be small caveats to that.Subsection (6)(b) states that,
- Xhaving become aware of it, he was not able to prevent its further distribution".
As the clause stands, it yet again places an obligation on an Internet service provider to commit a crime. He can do it, but he should not be doing it. I have simply inserted the word Xreasonably", so that if the ISP can do something at a reasonable cost he should do it. But if he has to buy a million pounds worth of equipment to do it, he will not have to do it in those circumstances. He no more has to go through his wires than a telephone company has to inspect what is going through its wires.
I do not intend to press Amendment No. 49. It considers what has to be done if an Internet service provider is asked to take down a website. It has to be clear who has the authority to tell someone to take down a website. If I host a website and a member of the public says that it contains a tobacco advertisement, what am I supposed to do? It is difficult to know under those circumstances whether to take down the website and incur enormous damages from its owner for having done so wrongly, or whether not to take it down and wait to be sent to prison for two years for failing to take down a tobacco advertisement.
There has to be some understanding of what process an Internet service provider should be subject to that will lead to an obligation to take down a website or discontinue someone's e-mail facilities. Otherwise they will be between a rock and a hard place of either being sued by a customer or convicted of a crime. Neither I nor the industry are certain how that circumstance will be dealt with in practice. Perhaps the Minister can clarify how those provisions will work. I should like something in the Bill that offered a little more certainty on the operation of these provisions.
2.15 p.m.
Baroness Noakes: Amendment No. 46 stands in my name and that of my noble friend Earl Howe. The difference between Amendments Nos. 45 and 46 is relatively small. The word Xreasonably" is shifted one word along in the clause. There is nothing in substance that I wish to add to the commentary of my noble
friend Lord Lucas, save to say that we support the amendment and I would not die in the ditch on the position of one word as the substance has been adequately conveyed.
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