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Terrorism Bill

moved Amendment No. 49:"Page 5, line 7, at end insert ““other than where the publication or the conduct, as the case may be, has taken place outside the United Kingdom””" The noble Lord said: In moving Amendment No. 49, I shall speak also to Amendments Nos. 50, 52, 54, 59, 60, 67 and 69. This large group of amendments raises a number of different issues, the link being that all of them are of concern to Internet service providers. However, I shall take them together because it would be inappropriate to hold a separate discussion on each one. I regret to have to admit that I am not an expert in the field and wish that I had more knowledge than I do of these very detailed issues. Amendment No. 49 was suggested by Internet service providers, but having looked at it, I think that its consequences are in fact undesirable and I would not wish to encourage it. I therefore move on to Amendment No. 50, which is a paving provision for Amendment No. 69. If the previous group of amendments had been accepted, this would be unnecessary because the offence would arise only if there was a refusal to comply with the notice. But since the amendments were not accepted, Internet service providers may face a prosecution even without a notice being given. The London Internet Exchange Limited, LINX, and the Internet Service Providers Association drafted Amendments Nos. 50 and 69, and we have adopted them. Their purpose is to ensure that Internet service providers do not face a prosecution for material forwarded by them but which they knew nothing about. This covers three specific situations where the role of the Internet service provider role is as ““a mere conduit””, ““the hosting of an information service””, and where it provides ““an Internet caching service””. Those are all terms of art, the meanings of which are summarised in Amendment No. 69. I should say that this is no longer necessary in relation to Clause 1 since the introduction of the intention test means that an Internet service provider in one of the specified categories plainly will not have the relevant intention. But so long as there is no intention test in Clause 2, we still need to ensure that Internet service providers are not subject to prosecution for the activities listed in Amendment No. 69. I recognise that this may be a defence specific to Internet service providers under Clause 2(9), but once again they should not be forced to rely on raising a defence to what otherwise would be a criminal offence. In practice, Internet service providers cannot be expected to monitor these specified services and should not have to prove their innocence. These amendments would give effect to Regulations 17 to 19 of the Electronic Commerce (EC Directive) Regulations 2002 implementing the Electronic Commerce Directive (00/31/EC) of the European Communities. If the burden of proof is placed on a defendant to show that it falls within Regulations 17 to 19, Regulation 21 requires that it should be an evidential burden of proof only, and so far this fact has not been recognised in the Bill. The next sub-group comprises Amendments Nos. 52 and 54. I understand that LINX and the ISPA are satisfied by the alteration to two working days and I shall not press the point further. Amendment No. 57, however, is one of some significance. It relates to repeat statements; that is, statements which are in the same form or to the same effect as a statement which was originally the subject of a notice and has been removed after the service of the notice. It is easy for a statement which has been blocked following a notice under Clause 3(2) to reappear as a repeat statement, perhaps from a new website. If it goes through the same Internet service provider it is treated as being covered by the original notice. No new notice is needed and the Internet service provider’s only way out is to prove a defence under subsections (5) or (7). I understand from LINX and the ISPA briefing that it is technologically impossible to monitor a network for a statement which may be ““to the same effect””. Further, imposing a requirement to carry out a general monitoring operation would be contrary to Article 15 of the directive. We therefore propose that subsections (4) and (5) should be deleted. We leave it to the Government to propose alternative solutions which recognise the serious practical problems that ISPs have in complying with subsections (4) and (5) as they now stand. Given the speed with which the legislation has been introduced, one of the problems that has arisen is that it was impossible to have adequate prior consultation. In the ordinary course of events, if the Government had produced and published a draft Bill, it would have been possible for the ISPs to make their representations to the Government before it was published as a Bill. I hope that the Government are now discussing these issues with the ISPs and that they will be prepared to revise Clause 3 on the basis of those discussions. Amendments Nos. 59 and 61 concern the actions which are needed by an Internet services provider to bring itself within the defences to prosecution provided by subsections (5) and (7). These are available only if the defendant has,"““taken every step he reasonably could””." We propose that that should be reduced to ““reasonable steps””. It may appear that there is no real difference, but there is. The difference is that as the Bill now stands a court would have to have evidence about all the steps which could possibly have been taken and then consider whether, in the case of any possible step, it was reasonable not to take it. Our formula would mean that the steps taken must be reviewed as a whole, and if in the circumstances these amount to ““reasonable steps””, it is not necessary to consider whether some other steps which were not taken might also have been reasonable. This would reduce the burden on the Internet service providers. It would not damage the effectiveness of the Bill because there is little doubt that people who are determined to do so will gain access to terrorist websites anyway. Amendment No. 60 deals with a problem created by subsection (6). This provides exemption from the monitoring of transmissions as a reasonable step if the Internet service provider does not exercise any selection or editorial control over the contents of what is transmitted. A number of Internet service providers exercise a limited degree of editorial control over their transmissions. Some systems make it possible to exercise partial control over transmissions in certain contexts—for instance, child pornography—but these involve automatic monitoring with little demand on human time within the ISP. I am not aware of any programs presently available which would identify and make it possible to exclude terrorist material, and it would be very difficult indeed to create one. Until that happens, it is unreasonable to exclude ISPs which exercise limited control over transmissions from the exemption under subsection (6). Finally, I have received draft amendments from BT. These raise concerns related to those of the ISPA—indeed, BT is a member of the ISPA—but which differ in detail because BT has somewhat different functions from the specialist Internet service providers. Unfortunately the amendments arrived late yesterday afternoon—too late to be tabled for debate today—but I am informing the Government now that they have been received and, if it appears necessary to do so, they may have to be debated at the Report stage. I apologise for going into some rather technical details but that is unavoidable at the Committee stage. I beg to move.