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Baroness Buscombe moved Amendment No. 40:

The noble Baroness said: This is a probing amendment. We believe that Clause 10(1)(e) is ambiguous. We entirely support media literacy—we have supported it throughout the passage of the Bill, both in another place and in your Lordships' House—but there is one issue on which we seek further clarification.

Media literacy should, by definition, refer only to the promotion of public understanding of the workings of media services and how best to access them—for example, an understanding of how to use the Internet and parental control options. However, Clause 10(1)(e) states that it shall be the duty of Ofcom,

    "to encourage the development and use of technologies and systems for regulating access",

to electronic media content, and for,

    "facilitating control over what material is received".

It is those words that we are concerned about.

It is not clear what kind of "encouragement" Ofcom may undertake in this area or whether the provision would allow it to use its considerable powers to "pick winners" in terms of the technologies or systems used in the market place; or, indeed, whether it will allow Ofcom to impose on electronic communications networks or services, through its broadcasting licences, requirements that may adversely effect them.

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For example, under Clause 10(1)(e), Ofcom's duty will require it to encourage the use of technologies and systems for regulating access to content that it determines are both,

    "effective and easy to use".

But Ofcom's judgment of the effectiveness or ease of use of particular technologies and systems may differ from that of others or be superseded by fast-moving developments in technologies and services; or its preferred standards or systems may be incompatible with those already in use and require changes that damage the investments and operations of market players.

The intention behind the provision is no doubt laudable—who would not wish to support effective and easy-to-use technologies and systems for facilitating access and control over content in the digital world?—but it is another matter if the regulating body can substitute its judgment over that of the market in this area. Indeed, the regulator would not need to impose particular requirements on operators or licensees to tilt the playing field if, for instance, Ofcom chose to "encourage" the development or use of particular technologies or systems through its own research and development or funding initiatives in ways that affected the investments and operations of others and worked against rather than with the grain of the market place.

I should be grateful if the Minister would confirm that it is not the Government's intention that Ofcom should be able to promote particular technologies over others, or to impose requirements that could have adverse effects such as those I have mentioned in pursuit of its media literacy objectives. It would also be helpful to know why, if the existing provision does not indeed allow such intervention, Clause 10(1)(e) should not be deleted from the Bill. I beg to move.

Lord Avebury: There is a great deal of force in what the noble Baroness said. We believe that there is a distinction between paragraph (e) and the remainder of the clause. In that paragraph Ofcom is given an active role in encouraging the development and use of technologies and systems as opposed to regulating the activities of other people doing those things. Paragraphs (a) to (d) all give Ofcom the duty to bring about, or to encourage others to bring about, various aspects of public awareness, but paragraph (e) is directly concerned not with public awareness but with the actual means of access and of facilitating control.

The Explanatory Notes state that these could include Internet filtering systems, rating systems by which programmes and videos are given a classification that indicates the nature of their content, and other technical devices for access, such as PIN-based systems. The notes envisage a role for Ofcom in the promotion of these systems and in the development of related educational materials. There are already Internet filtering systems and I doubt whether it is sensible for Ofcom to get involved in the global marketplace, as it would have to be to influence that

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technology. For Ofcom to favour a particular system to pick winners, as the noble Baroness pointed out, would be to risk shutting off the UK from the developments that might take place in the rest of the world, particularly in the US, and that would be extremely foolish. Technical devices for access and PIN-based systems in particular are matters for the industry rather than the regulator. Going down that route might lead to the point of saying that even things such as modems, modem drivers, routers, 802.11 add-on cards and anything else which makes it easier for consumers to gain access to web-based material should be susceptible to the encouragement of the regulator under this heading.

Rating systems are another matter, because they are not likely to be developed or agreed voluntarily by communications providers. If the subsection were more tightly drawn to cover this problem alone, it could be useful, but we think that as it stands it is far too broad.

Baroness Howe of Idlicote: I support the amendment. Clause 10 is to be welcomed; it imposes a fairly wide duty on Ofcom, but this amendment would make it wider. On the actual scope of duty to promote media literacy, how far does it extend, or is it intended to extend, to children? I assume it is intended to extend to parents, as the noble Baroness, Lady Buscombe, said.

It is interesting to note that little, if any, attention is given to the particular needs of children in this or, indeed, any part of the Bill. I have been able to see only one reference in the standards code covered in Clause 312(2), and that is to those under 18, so it is important to have an answer. Certainly, Ofcom will need to encourage, promote and consolidate best practice because it is clear that the multiplicity of such guidelines already developed by government departments, ISPs or lobby agencies have not yet reached families.

Media education, particularly for the young, is probably the most crucial component for the future. So far, what little there is has taken place in an overcrowded curriculum. The new citizenship course has a small element built in, but much more is and will be needed.

We have all acknowledged, at least tacitly, the growing influence of the electronic communications in our lives, not just our lives as we live them, but our culture, our attitudes and sometimes even our behaviour. We need think back only a few years to the impact of 9/11.

Coming back to the importance of instilling values in the young, perhaps the most important is a degree of scepticism about what they watch, certainly in the citizenship course. As one teacher put it, the easily led or unwary citizen is disempowered. For that teacher,

    "media understanding and awareness are a significant and possibly essential aspect of political literacy"

and what being part of society is about. That is why the ability to evaluate the message being sold in a programme and to detect, for example, any vested interest, will be increasingly important.

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In the very early days of television, I remember hearing Malcolm Muggeridge say in a discussion programme that he could make two television programmes on exactly the same issue which would lead the viewer to opposite conclusions. A rather chilling thought, despite the reputation for objectivity and impartiality enjoyed by British broadcasting, about the power, if unregulated, of the moving image combined with the spoken word.

Baroness Blackstone: I am very glad that the noble Baroness, Lady Buscombe, recognises the importance of Ofcom's duty to promote media literacy. This is a positive step towards empowering people. Let me say to the noble Baroness, Lady Howe, that of course "people" means "children". Of course children are included when it comes to taking greater responsibility for their use of the electronic media.

Media literacy is part of the citizenship curriculum. We would expect schools to take this issue and make sure that young people are given the opportunity to become more media literate. But I do not really think that we need a specific reference to children on the face of the Bill. This is exactly the sort of issue that the noble Lord, Lord Peyton, referred to earlier, if I can say that to the noble Baroness, Lady Howe.

I recognise that there was some concern in relation to the draft Bill that Ofcom should not become involved in the development of systems to support its media literacy duty. The drafting has been tightened up to make it clear that Ofcom's role is to encourage others to do so. That might be broadcasters, the electronics industry or software designers.

It is important that Ofcom retains its duty to encourage the development and use of systems and technologies to help people regulate what they view. It is equally important that these systems are effective and easy to use. There are many systems available; there is also a great deal of confusion about what they do and how they work. We see Ofcom's role as a facilitator. It is important that it retains the role of bringing stakeholders together and encouraging the development of tools which are likely to be increasingly important to the public.

I can give the noble Baroness the reassurance that I think she wants. This is not about picking winners; it would not be right for the regulator to start trying to tilt the playing field in the direction of any particular technology. The noble Lord, Lord Avebury, referred to that too.

If the noble Baroness's amendment were accepted—and she made it clear that it was a probing amendment—Ofcom would have no duty to encourage the development of easy-to-use systems for regulating access which are very important tools with which to protect the public, particularly children, from unsuitable contents. I hope I have given the noble Baroness the reassurance she wants.

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