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Digital Economy Bill [HL]

The noble Lord, Lord Howard, has introduced amendments which have raised some very interesting and challenging issues. However, I am unsure whether they raise contradictory issues. I presume it is an attempt to balance the whole matter, although it seems to me that, to a degree, they lurch from one position to another. However, I am grateful that the amendments raise some important issues. I have noted that the noble Lord, Lord Razzall, suggested that we are following our usual course of spending a great deal of time on Clause 1. However, he must confess that these amendments raise some substantial issues and, therefore, it might be helpful to clarify them as far as we can at this stage, as we know there are one or two other clauses which cause an element of concern and which might detain us for a short while later in Committee. I am aware that the House takes a keen interest in the issues of public service media content, so I am glad that we have this opportunity to discuss the issues now. My noble friend Lord Young has already explained the objectives of Clause 1. It is a small but necessary change. It is not an epoch-making change, as was suggested in the debate which went on for almost an hour a little while ago and threatens to re-emerge; it is a small but necessary change in the way that Ofcom performs its existing duties which gives greater importance to the need to promote investment in robust and modern communications infrastructure and public service media content. My noble friend Lord Maxton waxes lyrical on these media issues whenever he gets the opportunity, and I am grateful to him for his contribution again today. We are all aware that technological change creates the exciting opportunities about which the noble Lord, Lord Lucas, waxed strongly. There are great opportunities, but there are also incumbent obligations, so we have an element of regulation effective and appropriate to the changes. That was the burden of our previous debate, so I do not have to reiterate the issues at great length. The amendments would widen the qualifier on Ofcom's principal duty to require it to consider the need to promote investment in other kinds of media content besides public service media content. They define media content for the purposes of Clause 1 as meaning material other than advertisements included in media services. They would represent a significant increase in the scope of Ofcom's responsibilities, and we do not believe that that is appropriate. We are arguing the case for necessary marginal increases related to technological developments and opportunities; we are not arguing for radical change. The qualifier in Clause 1 builds on Ofcom's existing duty to have regard to the desirability of promoting the fulfilment of the purposes of public service television broadcasting. The rationale for that specific requirement is simple, and it remains valid in the digital age. It is because public service media content has clear social and economic benefits for the UK. Plurality of public service media content provides healthy competition for the BBC and a bedrock of quality for purely commercial content. It drives the market up and ensures that the British public has a choice, including in genres where the market alone cannot sustain plurality—for example, for news in the nations, locally and in regions. It will be noted that the Government are greatly exercised about that in the Bill and in action to be taken elsewhere. I am grateful to my noble friend Lord Puttnam for emphasising our expectation of the impartiality that news must provide. Losing that focus on public service media content would introduce new responsibilities for Ofcom that would be impractical and could have significant unintended consequences. As the noble Lord, Lord Razzall, emphasised, the amendments could conceivably require Ofcom to consider the need to promote investment in adult online content, American programming, Hollywood films or teleshopping. Is that what we expect Ofcom to get involved in by promoting investment? I take it that we agree that that is an issue for the private market, and therefore not investment that Ofcom will be expected to encourage or develop. A vast amount of material in these categories alone is included in media services available in the UK already, which would surrender the responsibility to promote investment in media content. That is quite impractical for Ofcom. This amendment opens the door through which Ofcom could not possibly go; if it did there would be deleterious consequences for its role. The Government also question whether it should be the role of the UK regulator to promote investment in this commercial content. We maintain that the qualifier should be limited to material that contributes or may contribute to clear public service objectives, set out in statute and formulated for the benefit of the UK public. That is the role we want Ofcom to pursue. Beyond that we consider that market mechanisms are the appropriate way to ensure that there is an optimal provision of purely commercial content. None of us underestimates the extent to which the market is making those provisions at the present time and with the most considerable growth possible. I understand the concerns that limiting this qualifier to public service media content could be detrimental to other types of media content, but we believe that the definition set by Clause 1 is flexible and wide enough to embrace all content that has public value. It strikes the right balance between respecting market mechanisms where they are enough to provide for what is required and supporting all content that delivers public value, which is the proper responsibility of regulation. This definition includes content provided by non-public service broadcasters and from new media, which is why we need this extension. That is why the clause is drafted as it is. It is worth reminding the Committee that Clause 1 maintains and modernises the existing requirement on Ofcom under Section 3(2) of the Communications Act to secure the widest availability of media services which taken as a whole are both of high quality and calculated to appeal to a variety of tastes and interests. Currently, this requirement applies only to television and radio services. Clause 1 is designed to widen that to media services, taking account of the digital age—on which the noble Lord, Lord Lucas, waxed so eloquently in the earlier debate. We all agree with him. The clause as drafted catches the intent of the amendment that all media content is important, but it also quite properly distinguishes between content that has a specific social and economic public value, and is particularly at risk, and purely commercial content which we can essentially leave as a matter for the market. The noble Baroness, Lady Buscombe, introduced another dimension with her advocacy of Amendment 31. I am aware that there have been some misconceptions about the proposed changes to Ofcom’s general duties introduced in this Bill. I am grateful to her and her Front-Bench colleagues for raising these issues and helping us to clarify the matter, though there is a certain contradictory element to them when compared with the previous opposition amendments. It has always been our position that these changes to Ofcom’s general duties enhance the regulator’s current responsibilities rather than introduce new duties. I give the noble Baroness a clear assurance on that point. Clause 1 does not give Ofcom any new hard powers to regulate the provision of public service media content by public service broadcasters or other content providers. The qualifier on Ofcom’s principal duty will not, for example, allow Ofcom to extend the scope of impartiality requirements to content providers not subject to them currently.