Joint Committee on the Draft Communications Bill Minutes of Evidence


Memorandum submitted by the Internet Watch Foundation (IWF)

INTRODUCTION

  1.  The Internet Watch Foundation (IWF) was founded in 1996 by the UK Internet service provider (ISP) community to act as a self-regulatory body to combat criminal content, most especially child pornography, hosted on UK servers. It has no statutory or legal powers, but its recommendations have considerable authority and have consistently been acted upon by ISPs. It has always had strong Government support, but it operates independently of Government and receives no annual funding from it.

  2.  The draft Communications Bill, currently being considered by the Joint Scrutiny Committee (JSC), has been brought forward mainly as a result of the growing convergence of broadcasting and telecommunications. However, the same digital technologies are increasingly promoting convergence of broadcasting and telecommunications with the Internet.

  3.  This suggests that the JSC could usefully consider the following questions:

    —  Should the proposed OFCOM have any role in relation to the Internet?

    —  In so far as OFCOM should not generally be involved in the Internet, is this limitation of its role sufficiently clear in the draft Bill?

    —  In so far as OFCOM should not generally be involved in the Internet, is the current self -regulatory model as represented by IWF sufficiently robust and resilient?

    —  While OFCOM and IWF are both exercising their complementary roles, how best can this partnership be facilitated?

Should the proposed OFCOM have any role in relation to the Internet?

  4.  Both Government and industry have consistently stated that they do not wish the remit of OFCOM to include the Internet. The DTI/DCMS policy document published in conjunction with the draft Bill states:

    —  "the Communications Bill will not give OFCOM any powers of regulation over content on the Internet (paragraph 3.2.2).

    —  "Ministers have made clear that they do not intend OFCOM's regulation of content to extend to the Internet" (paragraph 8.1).

    —  "The Government has made clear that it is not the intention of the draft Bill to extend regulation into the Internet" (paragraph 8.3.3.2).

  5.  This much is clear and welcome.

  6.  However, other comments in the policy document suggest that, while OFCOM will not seek to regulate the Internet, it will have an interest in the use of the Internet:

    —  "Under the draft Bill OFCOM will be given the function to help people develop a better understanding of the different types of media service, both licensable and non-licensable and in particular the Internet" (paragraph 8.6.5.1).

  7.  Clause 10 of the draft Bill, on OFCOM's function of promoting media literacy, refers three times to "electronic media" which is defined as covering not just broadcasting but "any electronic communications network". If there were any remaining doubt that this ambit is intended to cover the Internet, then all is revealed by the Explanatory Notes to the draft Bill which, in respect of Clause 10, refer to "Internet filtering systems

In so far as OFCOM should not generally be involved in the Internet, is this limitation of its role sufficiently clear in the draft Bill?

  8.  Although Ministers are clear that the remit of OFCOM is not intended to extend to the Internet, as the policy document makes clear: "It is not a simple matter to give effect to this policy in statutory form" (paragraph 8.3.3.2).

  9.  Indeed nowhere in the 300-page draft Bill is there any reference to the Internet. This is understandable because, in legal terms, it would be exceptionally difficult to define a network which, while ubiquitous, is amorphous and may in the future be configured and run very differently.

  10.  Instead the draft Bill seeks to delineate the scope of OFCOM by confining the regulator to services which are "available for reception by members of the general public". These services are defined in Clause 238 of the Bill. However, Clause 165(2) empowers the Secretary of State to vary this definition for any of five reasons including "the protection which . . . is expected by members of the public" and "technological developments that have occurred or are likely to occur".

  11.  In a sense, potentially this gives the Secretary of State power to decide what the remit of OFCOM will be and, if (s)he wishes, to extend it to content on the Internet. However, the power is balanced by the need—set out in Clause 156(3)—to obtain the approval of each House of Parliament for the relevant order.

  12.  Meanwhile the problems of the definition are already made plain by the fact that the definition does not cover video on demand and paragraph 8.3.3.3 states that Ministers are "minded" to bring such services within the ambit of OFCOM by an order unless providers put in place "adequate means of protecting children".

In so far as OFCOM should not generally be involved in the Internet, is the current self -regulatory model as represented by IWF sufficiently robust and resilient?

  13.  The Internet Watch Foundation was established in October 1996. In late 1998/early 1999, the Department of Trade and Industry and the Home Office jointly reviewed the work of the organisation through a study conducted by independent consultants KPMG and Denton Hall. In December 2000, the White Paper "A New Future For Communications" (Cm 5010) summarized—in paragraphs 6.10.1-6.10.8—the current UK self-regulatory model for the Internet based on the work of the IWF and described the organisation as "a model internationally". Certainly, at the conclusion of Project 1 of the EU's Safer Internet Action Plan, the European Commission gave the highest ratings to the UK hotline run by IWF.

  14.  In every one of the five years of operation, the hotline has processed and actioned more reports than the preceding year—in 2001, processing 11,357 reports and actioning 2,930. Less than 10 per cent of material reported to us is now found to be hosted in the UK and so far no UK Internet service provider has been prosecuted for hosting illegal material. All this is a real success and reflects well on the industry that has funded the operation, along with EU contribution, and the staff who have run it. (Examples of how other worldwide "Hotlines" are constructed can be found at Annex A)

  15.  When the IWF identifies material on a UK server that it believes to be potentially illegal, it issues a notification to the relevant ISP advising that the item be removed. Such notifications are recommendations—the IWF has no statutory powers or formal authority. In addition the Internet Service Providers Association (ISPA) has made it a requirement of membership that such notifications be acted upon, to the best of our knowledge all such recommendations have been accepted.

  16.  The IWF has also decided that it is time to set out in an agreed code of practice what is expected of organisations which join IWF and a consultation process will launched shortly involving all relevant stakeholders. In her statement to the House of Commons on publication of the draft Communications Bill, the Secretary of State for Culture, Media and Sports stated: "We are working with the Internet Watch Foundation to encourage and promote more self-regulation through the introduction of codes, and although Ofcom will have no regulatory role in that context, it will have an interest".

While OFCOM and IWF are both exercising their complementary roles, how best can this partnership be facilitated?

  17.  The DTI/DCMS policy document published in conjunction with the draft Bill states:

    —  "It will be for OFCOM to establish suitable links with non-statutory regulatory groups such as ICSTIS or the ASA and to consider with them the need for joint approaches and, where necessary, for self and co-regulatory solutions" (paragraph 4.4.3).

  18.  Although IWF is not specifically mentioned, it would be useful to have clarification as to whether IWF is one the groups that Government has in mind here.

  19.  At a later point in the policy document, IWF is specifically mentioned:

    —  "OFCOM will also work with bodies such as the Internet Watch Foundation both in the UK and at an EU level to strengthen ways of identifying suitable and unsuitable content on the Internet with the aim of giving parents greater control over what their children watch" (paragraph 8.6.5.2).

  20.  IWF clearly sees the need for the co-ordination of activity between itself and OFCOM and would hope that, in the main, OFCOM would consult with the IWF on areas that fall within IWF's remit. Indeed, as convergence becomes more and more of a reality, it may well be that mechanisms for empowering Internet users—such as rating and filtering—become more and more appropriate to broadcasting and, as far as possible, we should be ensuring now that such mechanisms can be mapped across to other media.

6 June 2002


 
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