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Lord Kingsland: My Lords, we support what the noble Baroness, Lady Williams, said and have nothing further to add.
Baroness Scotland of Asthal: My Lords, I need only say that the noble Baroness's concerns have been registered. Indeed, the noble Baroness was right to make reference to my noble friend Lord Eatwell, who has been vigorous in his pursuit of the interests of the British Library and other universities and libraries. We believe that the amendments that we have now put forward comprehensively put the British Library in a situation where it need fear for nothing in relation to this Bill. We really think that the amendments do that. We have already talked about intent and recklessness in relation to Clause 2. As was requested, it means that libraries will not be caught by the offence. However, we are also seeking to generalise the defence in Clause 2(9). That should demonstrate absolutely that the offence will not damage the interests of copyright libraries or any other libraries. I am confident that that satisfies the concerns of those who have spoken with such passion on behalf of the British Library, which is one of the libraries that should be applauded for the work that it does. I assure the House that, in our view, this amendment is wholly unnecessary.
The Lord Bishop of Winchester: My Lords, before the Minister sits down, in light of what she has just said and of what the noble Baroness said with such clarity, why would it not be admissible or wise—the Minister spoke earlier about belts, braces and garters and so forth—to put this on the face of the Bill, granted its importance?
Baroness Scotland of Asthal: My Lords, the terms under which these provisions will bite are clear. The noble Baroness is right to make reference to the British Library and the deposit libraries as being libraries of great excellence. However, in answer to the right reverend Prelate's question, there are many other libraries and universities that we might also have to list as being beyond question. We believe that the universality of these provisions is the best way to protect all those who may be subject to them. This amendment is simply not necessary. They may have been arguable before, but as a result of the significant changes that we have made, no longer necessary.
7.15 pm
Baroness Williams of Crosby: My Lords, I apologise because the hour is getting late, but I have one further question. Does the Minister agree that the position of the deposit libraries with their specific legal obligations is not the same as that of all the other libraries? I do not wish to do anything other than protect all libraries, as I am sure the Minister does too, but these particular libraries have a legal duty laid upon them which is distinct from that of most other libraries because they are deposit libraries and because specific Acts of Parliament have been passed in their respect which have made specific obligations on them that are not legally shared by all other libraries. That
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is the only reason why I moved this amendment. Given their exceptional position, might what the right reverend Prelate said be considered a little before we finally conclude on this Bill?
Baroness Scotland of Asthal: My Lords, as I have indicated from the very beginning, the ability to continue to scrutinise does not cease until this Bill leaves this House. However, it is only right to tell the noble Baroness that we have, in introducing the amendments that we have now placed before the House, considered these issues with great care, not least because we took very seriously the concerns that were so cogently expressed by a number of noble Lords including my noble friends Lord Eatwell and Lady Warwick, and indeed the noble Baroness, who has such experience in this area. It is because we took those comments so seriously that we included the intent and the defences, notwithstanding the fact that we believed that the old construct would suffice to meet the concerns that the libraries had expressed. We think that having done that we should now have assuaged the concerns in the proper way. I do not close the door, but I do not want to excite the noble Baroness's expectation that there is likely to be any further change.
Baroness Williams of Crosby: My Lords, in the hope that the Bill will not cease the process of being surveyed by this House completely, in the light of those remarks I will withdraw the amendment but my expectations continue to be relatively lively. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart moved Amendment No. 42:
"(9A) Nothing in this section or section 3 applies to the conveyance of signals in the course of, or in connection, with the provision of a common carrier service.
(9B) In this Part "common carrier service" means an electronic communication service within the meaning of section 32 of the Communications Act 2003 (c. 21) (meaning of electronic communications network services) which consists of no more than the conveyance of signals."
The noble Lord said: My Lords, this is the first of a group of four amendments. Apart from this one, all of them are amendments to Clause 3, and are basically concerned with the problems of Internet service providers and the extent to which they will be affected by this Bill. They divide into four groups because four different issues are involved. The first group, starting with Amendment No. 42, includes one minor government amendment which is concerned with making sure that the arrangements are not unduly oppressive to Internet service providers.
The second group contains a very different set of amendments which are concerned with whether the service of notices to remove something from an Internet service provider's provision can properly be done simply by the decision of a policeman. The third group deals with a particular point of concern to Internet service
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providers—the Government's provisions here as to repeat statements. Finally, the last group concerns what falls within the definition of terrorist-related material.
On the first group, starting with Amendment No. 42, it is probably fair to say that the Government's acceptance of the principle that there should be an intentional recklessness test to Clause 2 as well as Clause 1 will probably have reduced the concerns of Internet service providers. Unfortunately, owing to the late date at which the amendments were tabled, it has not been possible for me to have any detailed conversations with the representatives of the Internet service providers to see how far their problems have been resolved. However, I will now outline what the problems are.
Internet service providers do not normally monitor or exercise control over the material which they transmit. There are some cases in which some degree of control is exercised; for example, there are a number of ways in which child pornography can be excluded. It would be very difficult, however, to apply those techniques to terrorist material because of the considerable differences in its nature. There are, for instance, going to be no obvious code words which clearly identify a terrorist message. Some degree of protection is given to Internet service providers by Articles 7 to 19 of the Electronic Commerce (EC Directive) Regulations 2002, which implement directive 2000/31/EC. That protection should be preserved to avoid putting an impracticable burden on ISPs.
Amendment No. 42 is slightly different from the rest of this group: it is an amendment to Clause 2 rather than Clause 3. It has been requested by British Telecom, which is a large provider of non-Internet communications services such as telephones. It is plainly wrong, when we are talking about transmission or dissemination of terrorist material, that telephone services, voice or fax, should be subject to the Bill. I hope that the Government will agree to that, because it seems obvious that there is no practical way in which they can do anything about it without imposing wholly unacceptable burdens on the telephone services.
Amendment No. 44A has been requested by LINX, the London Internet Exchange, and the ISPA, the Internet Service Providers' Association. Internet service providers with multinational networks should not be expected to remove material from their network in another country without lawful authority in the jurisdiction where the removal would take place, because the Internet service provider might then have to choose between ignoring the notice served under Clause 3 by the police and facing prosecution in the UK, or complying with the notice and facing legal action, criminal or civil, in another country. That seems inappropriate, and I understand that it is the Government's intention that this should not apply to what is stored overseas. That should be made clear.
The Electronic Commerce (EC Directive) Regulations give protection to three categories of Internet service, as defined in the regulations: first, an ISP which is acting as a mere conduit, covered by Regulation 17; secondly, an Internet service which is
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caching information, covered by Regulation 18; and thirdly, an Internet service provider which is hosting information, covered by Regulation 19.
Caching and hosting both involve storage for more than a transient period, whereas acting as a mere conduit involves holding information only for a transient period. Under Regulation 17, no criminal penalty can be imposed on an ISP for any transmissions when it is acting as a mere conduit. That is repeated in Amendment No. 58, and would mean that an Internet service provider acting as a mere conduit would effectively be treated as we suggest that a telephone—common carrier—service would.
Under the regulations, ISPs which provide caching or hosting services can be subject to a criminal sanction if they have "actual knowledge" that the material they are storing is unlawful and, upon obtaining that knowledge, do not act expeditiously to remove from the network, or block access to, that material. That is covered by Amendments Nos. 45 and 59. The regulations also apply to Internet service providers acting as mere conduits, but that is covered by Amendment No. 58 which totally excludes them from Clause 3, so there is some overlap here.
The effect of these amendments upon ISPs other than those acting as mere conduits is to limit criminal liability to cases where notice has been served on them under Clause 3(2). Without this, there would be serious practical difficulties in deciding what constitutes "actual knowledge". It would therefore not be appropriate to provide that "actual knowledge", apart from the service of the notice, would in itself amount to an offence.
This is obviously highly technical and rather complex material. I am by no means an Internet expert myself, but I hope that the Government will be able to lay to rest the concerns of the Internet service providers. I beg to move.
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