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I have tried, in the amendments which I have tabled, to deal with the matter more straightforwardly and to say that distributing a tobacco advertisement does not include transmitting it in electronic form, participating in doing so or providing the means of transmission, unless the person is aware on first transmission of its contents or has had notice from an enforcement authority, having been given reasonable time to have the contents removed.
I am saying, via the amendments, that if someone is knowingly involved in publishing the advertisement because he knew that something was promoting tobacco, that is an offence. That is what the Government are trying to do. However, if an authorised authority--I use those words carefully because they are defined in the Bill as meaning a weights and measures authority--comes to the website and says, "You are publishing an advertisement; please get it off," that is the way the matter is dealt with. If the advertisement is not taken off, an offence has been committed.
Under the Regulation of Investigatory Powers Act 2000, when the police go to an internet service provider and say, "You have got something that we want to have information about because someone is distributing pornography"--or whatever it is that they are investigating--it would be right, in terms of amendment No. 33, to pay a sensible administration fee for the matter to be checked out and for someone to do the necessary work. The amendment reads:
We should remember that an internet service provider has not been clearly defined. The term includes virtually anyone who is doing anything over the internet. The worldwide web is an internet service provider. Many people are involved in the process of getting information on to someone's computer. They are involved as internet service providers.
Through amendment No. 36, I criticise the Government for using the term "website". If one so criticises the Government in that context, it is only fair to try to work out something better. I admit that I did so after consideration of the Bill had been completed in Committee, when the other members of the Committee had scooted off home. I was at my computer trying to work out the right way to deal with the matter.
In the virtual world, how is that done? The Minister has gone for the snappy title of website. Perhaps that is on the basis that everyone knows what a website is--it is difficult to define things that are virtual. Someone who accesses a website and obtains a tobacco advertisement is not on a website in the terms that we are discussing. He has not physically gone on to the website. He has downloaded the advertisement to his computer. He has gone to a place where there is an authorised distributor of the advertisement because it is a place that sells tobacco. The advertisement that appears on his computer is legal from the Minister's point of view, but not within the terms of the Bill. That is because it is not still on the website. The website is elsewhere and the information has found its way to the individual's computer.
I suggested that if the information were downloaded on to a large billboard, the situation would be exactly the same. In trying to help the Government, I am saying with some difficulty that if we talk of a real place or a virtual place via electronic transmission where tobacco products are offered for sale, we are coming within the ambit of what the Government are trying to do. In other words, the place where it is legal to see the advertisements is the place where the individual has transmitted them.
I admit that the entire problem has not been covered. For example, the boyfriend of one of my daughters creates advertisements. It would be legal for an advertisement that he had created to sell a tobacco product at a point of sale on the website. Unfortunately, while he is producing it, he would probably be acting illegally. It is only when the information is on the website that it becomes a legal advertisement.
The Government are trying to say that it is legal to have an advertisement when someone is buying tobacco on a website, and it is legal for that advertisement to be created in the United Kingdom, but that is not what the Bill provides. I urge the Minister to consider what we are attempting to do, so as to assist her. I ask her particularly to bear in mind what the poor old internet service provider will find if there is an unlimited number of people who can contact him. He will hear, "I was searching the web the other day and I came across an advertisement which was not selling tobacco. I know that the advertisement is illegal and you must take it off." The individual is asked, "Where were you?" He says, "I clicked on this and on that, and I am not quite sure how I really got there."
That is searching the web; we often end up where we do not expect to be. Websites are often designed to try to ensure that information that has not been requested gets on to computers. The arrival of naked ladies on a computer screen is often completely accidental. I accept that many people are doing their very best to get naked ladies on their screen. If someone goes into a search engine, he might discover that someone has downloaded information because he is trying to sell a porn site. In future, people will be trying to sell tobacco. People will ask for information and receive instead information about the selling of tobacco.
It has been difficult to cram all these ideas into a short period. I hope that I have given the Minister some time in which to respond. The amendments are intended to be helpful and to ensure that the United Kingdom becomes the best place in the world to do the sort of business that we are discussing.
Amendments Nos. 12 and 13 would remove electronic distribution from the Bill and leave it to regulations. That is not the right approach; one principle of the Bill is to provide media neutrality, so that it applies to all media. Defences are then tailored, as appropriate, to different media, which is a sensible approach. The amendments would single out electronic distribution for special treatment, but not electronic publishing. There is therefore a lack of consistency. We said in Committee several times that the Government were sympathetic to the position of internet service providers and we will discuss with them the enforcement of the Bill. However, it would be wrong to write them, or others involved in electronic methods of communication, out of the script altogether.
I accept the intention behind amendments Nos. 34 and 35. In fact, they tend simply to rejig the provisions in the Bill. The intention of the Bill, and the purpose behind it, is to introduce a comprehensive ban and then introduce
Electronic distributors already have the defences, under clause 5(6), of being unaware, of being unable to prevent further distribution, or of not carrying on business in the United Kingdom. The amendments add nothing to those defences, but add the sense of someone who could tell ISPs about a tobacco advertisement authoritatively. We discussed that in Committee, when I made it clear that the Government are happy to work with ISPs to develop a workable system. However, we see no reason to introduce a bureaucracy to do so in the Bill, and believe that we can get a voluntary arrangement that would be effective in that area.
I accept the intention behind amendment No. 36, but I do not think that it adds anything to the Bill or improves it. The term "website" is currently understood to mean a location on the worldwide web, identified by a web address. There is a legitimate concern about what happens in five years' time if the idea of a website becomes redundant because technology has moved on. We have included clause 7 in the Bill so that we can keep up with the technology. The amendment would not add anything to the Bill, and we would still have to rely on clause 7 to keep up.
We cannot accept amendment No. 15, which would remove clause 7 and our order-making power to amend the Bill to take account of developments in technology. That power is not open-ended and does not allow us to change any provision on a whim. It is a narrow and specific power, allowing us to change only provisions relating to publishing or distributing by electronic means so as to react to developments in technology. We would not use that power lightly, but given the pace of technological development in that area, it is extremely important to have it, so that the Bill's intention is not rendered pointless by the rapid pace of technology.
Amendment No. 33 would allow particular businesses or private individuals to charge public authorities for obeying the law of the land. That is not appropriate and we do not undertake such action in other areas of the law. We are aware that ISPs have legitimate concerns.