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The noble Lord said: My Lords, this is a short issue. It arises from a vote in your Lordships' House a few weeks ago, which was won by a majority not only a 64th of the size of the majority in the Commons, but a
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quarter of the size of the majority that we enjoyed in this House a few minutes ago. Under the Bill as it came to the House of Lords, a constable who thinks that a statement being transmitted by an Internet service provider from a website which that ISP serves is unlawfully terrorism related can serve notice on the ISP requiring the removal of that statement within two working days.
As the Minister pointed out, it is not an offence in itself to fail to comply with the notice. But the main significance of the service of the notice is that if the Internet service provider continues to transmit that statement for more than two working days after receipt of the notice, it will be treated as having endorsed the contents of that statement. The effect is to treat the ISP as having approved the statement and a defence of intent will not therefore be available. The only defence that would be available would be to argue that the police had got it wrong in regarding this as an unlawful terrorism-related statement. So the question of intent is out of the picture.
In practice, it will almost invariably be in the interest of the Internet service provider to comply with that notice. It will have absolutely no wish to face prosecution for the sake of one statement from one website. Refusing to comply with the notice would involve a great deal of expense in defending a possible prosecution, the possibility of a large fine and the stigma of being associated with terrorism. Market forces will plainly ensure that result.
The Minister has laid considerable stress on the fact that no Internet service provider is concerned about that. The ISPAthe associationis happy with the idea of a notice, which strengthens my case. It shows that Internet service providers will not exercise their own judgment on whether the material that they are required to stop transmitting is terrorism material. They will simply comply with the notice, so they are not worried. They would be much more worried about this if they were contemplating the possibility that they would take steps to refuse to comply with notices. So it seems to be a thoroughly bad argument.
The result therefore is that the police, by serving the notice, can block any material that they dislike. I accept that there will be special procedures by which this will be done. The ordinary bobby on the beat will not do this. It will be carried out by a specialist group, which will no doubt have strong views of its own. The Internet is now an extremely important method of passing information and views. It is therefore of very great significance to freedom of communication. Recently, there has been strong criticism of the actions of Google in setting up a censored Chinese search engine.
I believe that we should not leave a power as important as the power to serve a notice of this kind in the hands of the police alone. There should be a procedure which is similar to that for getting an arrest warrant. The police should go to a judge to get permission to serve the notice. I do not suggest that there should be anything in the nature of a hearing. There is, of course, no foolproof protection of freedom
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of communication here. There will be no hearing. The judge will have to rely on information from the police, and some judges may, as with arrest warrants, be more willing than others to authorise the service of notices. I believe that the need to get the warrant will make abuse of police powers less likely and will delay the service of notice only by a few hours at mostfar less than the two working days which are already allowed for the Internet service provider to block the material.
Saying that there must be something in the nature of a judicial warrant before a notice of this kind can be served is an important protection for freedom of communication through the Internet and will not restrict the police in the proper exercise of their powers. I beg to move.
Baroness Williams of Crosby: My Lords, I am sure there are many who will feel a sense of weariness at the thought of having to pick up the cudgels yet again to try to protect freedom of speech and expression on behalf of a brand new technology, namely Internet service provision. The point made by my noble friend is absolutely right; we have recently seen the willingness of Google, probably the most powerful Internet system in the world, to accept restrictions on its own ability to transmit freely what is thought to be factual truth in order to complete a contract with the Republic of China.
Those with long memories will recall that at a much earlier stage, when the BBC was attempting to get a contract for news in China, it was told that to do so it had to accept edited Internet service provision, and it was unable to do that because it had agreed to transmit a terrifying film, "The Dying Room", about what happened to young girl infants in China. That was found so reprehensible by the Chinese authorities that they made it plain that the BBC would not be permitted to have either Internet or other positions in the Republic of China. Instead they moved to a Star system, within the empire of Mr Rupert Murdoch.
We find yet again that this newest of technologies is threatened by attempts to limit its freedom of expression. To offset that, there has to be a major legislative input to remind people, all the time, of the importance of the right to freedom of expression, not least to this new and powerful technology. As your Lordships will be well aware, it is a technology that particularly appeals to people under the age of 35 much more than traditional newspapers or broadcasts, so it is of the most significant importance that its freedom should be protected.
My concern about the group of amendments before us now, and the decision of another place to reject them, relates to something that the noble Lord, Lord Stoddart of Swindon, said earlier in our debate on the amount of responsibility which is now being put on the police, and the question of whether they are
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properly trained for that set of responsibilities. If one looks over recent legislation, the degree to which more and more discretion is placed on the police in one area after another is actually rather frightening. I say that with considerable respect for the police forces of this country, but respect alone will not offset these growing responsibilities which they are not fully qualified to meet. Making a decision about whether some sort of announcement or statement on an Internet service provider's network could be described as, to use the words of the Bill, "an unlawful terrorist act" is a delicate decision. Once again, we in this House are looking at what was called, in debate on early amendments to this Bill, the chilling effect.
You are a young constable, who has had rather limited training. You know that you will not be faulted or rebuked if you get it wrong in the direction of bringing an order when the case for it is weak. You will unquestionably be rebuked if you do not bring an order when it is felt, later, that the case for it was strong. The weight of evidence is almost entirely on one side, and it would encourage the policeto use the earlier remarks of the noble Lord, Lord Stoddartto somewhat overstep the mark. I repeat that that is not a criticism of the police, but rather a statement about the amount of responsibility we are now placing on an individual police constable.
Those orders carry with them, as my noble friend Lord Goodhart said, the possibility of a heavy penalty if it is assumed that the person has endorsed the statement because he has not taken action to wipe them off the screen or tell them to be stopped within two working daysa pretty short period by almost any measure. That then means that that whole set of information will be banished from the public stage. The sum effect is a heavy responsibility, and one that in some cases will add up to a substantial incursion of freedom of expression and freedom of information.
My noble friend has tried to deal with this by bringing another voice into the decision-makinga judge who could make a rapid decision on the basis of the information put before him, as he does in an arrest warrant. Essentially, the main point is that we have another judgment here, another view and opinion, on top of that of the single police constable who otherwise can make the decision on his own. This is a troubling area, where the borders of freedom of expression will be pushed back quite a long way by the decision of the police to play it safe. We have to set up this second voice against that, with perhaps more experience and knowledge of the way in which the law works than that of a single police constable, however well intentioned. Therefore, I strongly support these amendments.
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