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Baroness Scotland of Asthal: My Lords, I am grateful to the noble Lord, Lord Goodhart, for explaining how he sees these amendments and the advancement of the arguments in support. However, I do not agree with him.

Amendment No. 49, for example, which removes the provision on repeat statements, would make the notice provisions utterly worthless. Without them, a person could receive a notice, wait for two working days, remove the material at the last possible moment in order to technically comply, and then load up the same information a matter of minutes later. I am sure that the noble Lord would not like to facilitate that sort of behaviour.

The repeat statement provisions are at the heart of the effectiveness of Clause 3. Their removal renders the clause totally impractical. Without a requirement to take reasonable steps to prevent repeat statements occurring, the police would have to engage in sending hundreds of messages to the same webmasters who, if they were canny enough, could always comply and yet still make their statements available. The Government cannot, therefore, accept this amendment.

I was pleased that the noble Lord acknowledged that there is a reasonableness defence, but we differ as to how that should be expressed. There is a subtle difference between the construction put on it by the noble Lord and the interpretation to be given to our provision. Every step a person could reasonably take requires both that he is capable of taking a step and that he takes it. That is every step he can reasonably take. "Reasonable steps", as suggested by the noble Lord, is simply not as clear. It is not clear whether the person in question must be capable of making the step that the court requires of it. It is not clear that they can comply simply by taking one, or only some, steps, when it may be possible for them to take others.

We must remember that the statements which we are seeking to prevent being made have a potential role in encouraging terrorism, or provide information of use to terrorists. This is therefore not a trivial matter. We much prefer the current drafting, which we contend is clearer and more readily understandable. We hope that the noble Lord will feel able to agree with that.

On Amendment No. 51, in my name, the Government are aware that Internet service providers in the UK are concerned that our provisions on repeat statements may contravene the Electronic Commerce Directive, which requires that a general obligation to monitor cannot be placed upon those service providers that fall within the terms of the directive. We are not of the view that the Bill places such an obligation on those providers, but brought forward an amendment in the other place to put the matter beyond doubt.
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Clause 3(6) was inserted to make absolutely clear that the protection against having a general obligation to monitor placed on certain Internet service providers offered by the Electronic Commerce Directive applies to this Bill.

As I stated in Committee, we became concerned about this subsection and have taken the view that its retention does not achieve the aims it was designed to meet. The Government's view at the time of laying the amendment remains the same: the repeat statement provisions in Clause 3 do not impose a general obligation to monitor that offends against the directive. Notwithstanding this, Clause 3(6) was inserted to provide additional clarity.

The Internet Service Providers' Association UK, while welcoming this amendment, raised some concerns that the protections offered by Clause 3(6) did not apply to those covered by the directive who participated in voluntary blocking of child pornography. In addition, we have become concerned that if Clause 3(6) remains as it currently stands, rogue website administrators may decline to edit content on their sites simply to avail themselves of the protection of Clause 3(6). This is clearly unsatisfactory and demands to be addressed.

The primary purpose of Clause 3 is to require website administrators to be responsible for the content they are making public, especially those administrators engaged in making available extremist messages and images. In the light of our previously stated view that we do not consider that to comply with a notice will require general monitoring of a kind prevented by the directive, we have reconsidered the position and concluded that Clause 3(6) has caused unnecessary confusion and that it would be preferable to omit it.

More generally, the industry has expressed concern about the need for further regulations being made applying the e-commerce regulations—SI 2002/2013—to provisions in the Bill. I can confirm that the Department of Trade and Industry intends to bring forward a statutory instrument to apply certain provisions of those regulations to the Bill. The Bill could be covered in that exercise so far as is necessary. My officials have had some very constructive correspondence with the Internet Service Providers' Association UK during the passage of the Bill and have drawn up this change in the light of those discussions. We are satisfied that this meets its concerns and wrote to the association last week setting out the Government's detailed response to them.

Amendments Nos. 53, 54, 56 and 57 remove the references to being "capable of being" understood to "likely to be" understood. The "likely to be" understood formulation, which the amendments propose, mirrors the provisions in Clause 1 about the effects of a statement. I set out the Government's position on this fully during Committee. Currently, it may well be that in issuing a notice the constable is aware that the statement is unlikely to encourage others to terrorists acts because it has, for example, been posted on a website run for children's educational
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benefit and no one viewing it is likely to understand it as an encouragement. None the less, if someone were to visit the site, they might be capable of understanding it as such. Instead, referring to the audience who have or would have seen it and on whom it is likely to have an effect, the constable is being asked to make a judgment as to whether such a statement is capable of being understood as unlawful terrorism-related.

Instead of a second guess at whether the court will take the view that an audience is likely to have understood it as an encouragement, the police issue a notice saying that they are concerned about the presence of the statement. This allows the police to issue notices not only instead of prosecuting individuals, but also to warn individuals that their websites are being targeted and to make people aware of offensive content that they may not be aware of. The utility of the notice provisions extends beyond simply being a precursor to prosecution. If a person posting a statement does not accept that anyone is likely to understand it as being such an encouragement, they do not have to comply with the notice, in full confidence that they will not be prosecuted.

In the light of what I have said on both groups of amendments, I hope that the noble Lord will feel able to withdraw his amendment and not bring it back at a later stage.

Lord Goodhart: My Lords, I am grateful to the Minister. My reactions to what she has said are mixed. I start with my most favourable reaction; I accept that there is a necessity for some form of provision to try to control repeat statements. We would not therefore want to move the amendments which would completely delete the provisions relating to repeat statements. As regards the remaining provisions on repeat statements, again, before reaching any conclusions, I feel it necessary to discuss them again with the Internet service providers.

To turn to the points with which I do not agree, I remain entirely unpersuaded by the Minister's response to Amendments Nos. 53, 54, 56 and 57. The test for what is unlawful terrorism-related material should be that it is something that is likely to encourage terrorism. I found the idea of such material going via a children's programme totally unrealistic. That does not touch the issues here at all. The nature of the material has to be considered. If it genuinely encourages terrorism, then it does not matter what programme it goes out on—it can properly be blocked. In those circumstances, it is inappropriate to say that something needs only to be capable of being understood as encouraging terrorism.

This is an issue on which I shall be interested in the views of the Internet service providers, but it seems that, quite apart from their views, this potentially infringes freedom of speech. This is a matter that I shall certainly want to look at again very carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 50 not moved.]
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Baroness Scotland of Asthal moved Amendment No. 51:

On Question, amendment agreed to.

[Amendments Nos. 52 to 54 not moved.]

The Deputy Speaker (Viscount Ullswater): My Lords, I must advise the House that if Amendment No. 55 is agreed to, I will be unable to call Amendments No. 56 and 57 because of pre-emption.

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