Efforts by peers who sought clarity on the government's plans to force ISPs to block porn sites that fail to comply with age verification rules were largely thwarted on Thursday, during the second day of committee stage debates on the draft Digital Economy Bill. But they did eventually force Whitehall to shine some light on its inability to police the likes of US companies such as Twitter and Snapchat.

Lord Ashton—the government's culture, media, and sport parliamentary under-secretary—told the upper chamber, in response to a question about whether social media sites should be responsible for policing who can see X-rated content that is served up to their users, that "Internet sites can be classified by the regulator as an ancillary service provider where they are enabling or facilitating the making available of pornographic or prohibitive material."

While the minister was initially careful not to use the words "social media," he did appear to be saying that any number of sites could be labelled an ancillary service provider. Whitehall's previous guidance had said that payment providers and online advertisers fall under that definition, but it has been less clear whether social media sites could also apply to that umbrella term. Ashton added:

They [the aforementioned "Internet sites"] could be notified of pornographers to whom they provide a service. And there are a range of potential ancillary service providers—and differing actions they could take are often technology-dependent. The regulator is consulting with the industry and we expect it to publish guidance on the circumstances in which they will notify ancillary service providers. We do think there is a fundamental difference between a pornography website, which produces dangerous material which can be closed down, and an ancillary service provider which can make it available. The method of notification is what we are using.

Ashton said that the government was reluctant to reveal more about its plans, much to the chagrin of peers who were keen to debate the topic ahead of the report stage of the bill on February 22. But he seemed to initially suggest that the government remained unclear on how to try to force social media sites—many of which (just like the majority of porn sites) are based abroad—to comply with the government's proposed age verification requirements to prevent under-18s from accessing smut online.

"We don’t want to get to the situation where we close down the whole of Twitter, which would make us one of two countries in the world to have done that," he said, prompting muffled giggles.

But Labour's baroness Jones told the house that a "clearer definition" about the responsibility of social media sites was needed, adding: "we have a level of frustration about this." To which Aston replied: "I do hope that we are edging towards some agreement," before admitting that the government would not show its hand until the report stage of the bill, seemingly giving peers little time to scrutinise the plans.

The minister added that "it will be for the regulator to publish guidance about ancillary service providers." The regulator in question is the British Board of Film Classification (BBFC). But he told the house that the "BBFC will carry out most functions of the regulator." He didn't expand on what he meant by "most," however.

Consensual regime

Later in the debate, Ashton did clarify the government's position on how to prevent porn from being served up on social media sites. "It will depend on the facts of any given case," he said, "but should a social media site focus solely on pornography, we think it's right that the regulator is able to consider if this site is making pornographic material available on a commercial basis.

"However, where pornography's not a substantial part of the site, that will of course be less likely. As I've said before, we do think the regulator should be able to consider where sites are enabling facilitating the availability of pornography, and in this case they would not be subject to the regulatory powers, but would be notified that pornographic material is available without age verification."

Eventually, he confirmed that social media sites wouldn't be required to take any action. He said the government wanted a "consensual regime" and claimed that many social media sites were "entirely keen to act because their reputation and brand is dependent on being seen to do so." Put another way, it has no control over regulating online companies whose businesses are based overseas.

ISPs are innocent bystanders

Elsewhere in the debate, the government's plans to force ISPs to block sites serving up porn that fail to comply with its age checking demands also came under fire from some Labour and Liberal Democrat peers.

"We’ve received representations from the Internet service providers about the scale of the demands on them in Part 3 [of the Digital Economy Bill]," baroness Jones told the house. "They are, after all, the innocent parties in this process. They are, in effect, caught in the middle between the regulator and the offending pornographic site. So they understandably have requested that any decision to block a site should be legally watertight and implemented as a measure of last resort. If the bill is to be successful, the threat of a site being blocked should be enough to deliver the desired change."

Ashton agreed that asking British telcos to cut off access to sites that fail to check the age of their users before serving up porn was "a difficult area to get right," adding, "we recognise that providing the regulator with the power to direct ISPs to block content is a serious step," but the minister insisted that such a mechanism "would be used sparingly."

"Our regime is about encouraging compliance by the industry," he told peers. "Giving the regulator the power to direct Internet service providers is the proportionate and right approach to ensure that children are not inadvertently exposed to harmful pornographic material."