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Terrorism Bill

moved Amendment No. 49:"Page 5, line 28, leave out subsections (4) and (5)." 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 there is a government Amendment No. 51 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 provides 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 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 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 the 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 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 people 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, 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.