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Lord Goodhart: My Lords, I am grateful to the Minister for responding to the amendment but I am afraid that I remain totally unpersuaded by her
 
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arguments. To begin with, although I accept that in many aspects of the Bill the insertion of an intent or recklessness test in Clause 2 makes a difference and is helpful, I do not think that it makes any difference at all to this problem. First, as soon as the Internet service provider is given the notice, it knows exactly what is going on. Secondly, and more importantly, it might make it easier for the Internet service provider to defend the case if it sought to do so but the Internet service provider will not do that. Frankly, I am wholly sceptical of the idea that market forces will press the Internet service provider to defend notices of this kind. All its interests are in doing nothing of that kind. Far from Internet service providers acting as protectors of freedom of legitimate speech, I have to say that in all the discussions and communications that I have had with the Internet Service Providers Association—I understand this and do not criticise it at all—it has shown no interest whatever in this group of amendments. So I think that that is an unrealistic basis for saying that the amendments are not necessary.

Nor do I believe that there is likely to be a significant delay. What the police would have to do in this case is similar to the need, in many cases, to obtain a search warrant or arrest warrant, for which they now have to go to a judge. Admittedly, the amendment requires a slightly higher level of judge—a circuit or High Court judge rather than a district judge or a magistrate. But I do not think that the police have a great problem with delay in getting warrants and I do not see why, where a case is made out, they should have a delay in getting permission to serve a notice here.

It is also true that the application for the notice will be heard in private, so the first that the client of the Internet service provider whose material is blocked will know of it is when the block happens, which is exactly what will happen anyway. There is always a possibility of finding another service provider or something of that kind, but that will not be affected by this group of amendments.

I have every respect for the police and I am sure that they would not—certainly not consciously—abuse their powers here but, as we have seen from other countries, there is a real risk of abuse of powers. It is plainly desirable that, before they go out and serve a notice, the police should be made to think twice about whether they really need to do that, and the best way of doing so is to say that they have to go to a judge to ask for permission.

Having said that, at this time of night I am not proposing to press the matter to a vote and therefore I will ask the leave of the House to withdraw the amendment, but I think that this issue may well come back at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9 pm

[Amendment No. 48 not moved.]

Lord Goodhart moved Amendment No. 49:


 
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The noble Lord said: My Lords, we return to problems facing Internet service providers which we also dealt with under the first group of amendments. It has been suggested to me, and I have agreed, that I should take this group and the next group together because both groups concern the problems that might, in different ways, face service providers. The first group comprises Amendments Nos. 49, 50 and 52 and government Amendment No. 51 is in between. It is a fairly straightforward government amendment which I certainly do not object to.

Amendments Nos. 49, 50 and 52 are associated with issues that relate to what in the Bill are called repeat statements. They are of serious concern to Internet service providers. Under Clause 3(4) notice given to an Internet service provider is treated as applying not only to the original matter of transmission by the ISP, but also to a repeat statement which is a statement substantially to the same effect as the original one but in a slightly different form. Of course, Clause 3(4) does not prevent a statement operating through a different Internet service provider. That would have to be dealt with by the service of a new notice on the new provider. It is not very difficult to see that someone whose website is blocked through one Internet service provider may not find it very difficult to find another Internet service provider.

Whether there is a repeat statement or not is nearly impossible to monitor. Monitoring what is passed through an Internet service provider is extraordinarily difficult. There are ways in which it can be done, but they are likely to be difficult and ineffective. One of the problems is that, under the Bill as it now stands, ignorance that a repeat statement is being transmitted is, in fact, no defence because the effect of Clause 3(4) is that the Internet service provider which has been served with a notice is treated as having knowledge of the repeat statement whether it knows about it or not. That, therefore, overrides the test of intent or recklessness under Clauses 1 and 2. The Internet service provider commits the offence even if it does not know that it is transmitting the repeat statement.

On the face of it, that is inconsistent with the electronic commerce regulations—Regulations 18 and 19—which require actual knowledge rather than some kind of assumed knowledge. I wonder how the Government reconcile those provisions with the e-commerce regulations. Admittedly, the Government provide a defence if the Internet service provider has taken "every step it reasonably could" to prevent the repeat statement becoming available to the public.

Amendment No. 49 would remove any special treatment for a repeat statement. It would mean that a new notice would have to be served. There is probably not a great deal of practical difference between them since the originator can always switch to the new ISP and the process would plainly have to start again.

If it is necessary to retain special treatment for repeat statements, it is too strict a test to require an ISP to take every step it reasonably could. We believe that
 
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the Bill should be satisfied if the ISP has taken reasonable steps. As the Bill stands, the ISP will have to show not only that the steps that it took were sufficient to be reasonable as a whole as a block to unlawful transmission, but that there were no other steps that could have been taken. That is altogether too strict a test. The burden on the ISP should be to show that it has taken steps which, in total, amounted to a reasonable effort to block the repeat statement. If that has been done, it should be enough.

There is one further point. Regulation 21 of the electronic commerce regulations requires that the burden of proof for any defence raised under Regulations 17 to 19 must be evidential only. Clause 3(5) creates a defence if the defendant shows that it took all reasonable steps to prevent a repeat. That is not compatible with Regulation 21, because the burden on the defendant is not limited to an evidential burden.

Moving on to the second group of amendments—Amendments Nos. 53, 54, 56 and 57—subsections (8) and (9) of Clause 3 define statements that are "unlawfully terrorism-related" and can be the subject of a notice. A statement is unlawful if it is capable under those subsections of being understood as an encouragement of terrorism. That is an amazingly wide definition. All kinds of legitimate statements are capable of being understood as encouraging terrorism by those who want to understand them in that way. For there to be an unlawful transmission there must at least be a probability that these statements are not only capable of being so understood but will be so understood. Clauses 1 and 2 require that in order to be an offence a statement that is published or disseminated must be likely to be understood as encouraging terrorism. We see no possible justification for a lower test in Clause 3.

When we raised this issue in Committee, the Minister said that there was a difference because, in Clause 1—and the intent test was not in Clause 2 then—you know the audience to whom the statement is being made. However, under Clause 3, the police do not know who is going to receive the message transmitted by the ISP. It is a wholly irrelevant distinction. First, under Clause 1, you do not necessarily know who your audience is. You may do if you are holding a public meeting, but even then, if it is of any size, you will not know who is there if it is not by invitation. If a statement is published via being made on radio or television, you have no idea whatever who is listening.

Secondly, now that we have intent in Clause 2, someone who is disseminating terrorism material may very well not know in some cases to whom that material is being disseminated. Thirdly, surely the test of how a statement is likely to be understood depends on the content of the statement. If I see a statement praising 9/11, I understand it is likely to encourage terrorism even if I am repelled by that statement. Whoever monitors Internet material can say, "This is something which I can see is directed at supporters and is likely to encourage it". If so, so be it: that is an unlawful transmission. It is not enough to say,
 
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however, that you can block a transmission if it is a borderline case, where it may or may not encourage terrorism—where you can say that it is capable of encouraging terrorism, but you cannot say that it is likely to do so. I beg to move.

9.15 pm


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