It's almost impossible to send up the workings of the House of
Lords - reformed or unreformed. It passed way beyond self-parody aeons
ago, probably when Queen Victoria was a mere slip of a girl.
With the plump form of a lugubrious lord chancellor squatting drowsily
upon the woolsack and the air thick with the centuries-old reek of
powdered wigs, camphored ermine and wax-polished wood panelling, the
inhabitants of the chamber can give free rein to an extravagant taste in
foppish 18th century circumlocutions. They do a lot of "begging to move
that the house do now resolve itself" sort of stuff.
At eleven of the clock a few days back, our Lords assembled to ponder
amendments to the Tobacco Advertising and Promotion Bill. They were
principally debating who could be held legally responsible if, in the
future, the provisions of the bill were breached and tobacco ads were in
some way disseminated. In particular, they were considering the
definition of a "publisher" as opposed to a "printer" and a
They were in fine form. Lord Monson told a delightful little anecdote
about the brother of one of his daughters-in-law who (the brother, that
is) ran a printing company in Nairobi and had been thrown into prison
for upsetting president Moi of Kenya.
Meanwhile, in attempting to close off all possible loopholes in the
bill, as it might be interpreted in any imaginable parallel universe,
they began speculating on whether its provisions might extend to "a
newspaper delivery boy, who, technically speaking, would be a
distributor". That was Lord Monson again.
They are clearly a series of characters who resemble Paul Whitehouse's
Rowley Birkin QC character in the Fast Show. It's all great theatre and
great fun - until you realise that they're not only for real, but
they've just turned their attentions to the internet.
There was no holding them once they got into their stride. Before they
adjourned for a late but thoroughly agreeable luncheon at 3.25 pm, they
had somehow managed to convince themselves that internet service
providers are not to be regarded like the newspaper delivery boy, nor
are they yet akin to the humble printer. They must be seen in law, where
the dissemination of advertising materials are concerned, as publishers.
ISPs should be responsible for content on the internet sites that they
host or enable to be disseminated.
This is not yet legislation, of course, and the House of Commons now has
a chance to amend the most imaginatively ambitious of the Lords
amendments, particularly this ISP stuff. But isn't this sort of
knock-about actually becoming tiresome? It was certainly more in
weariness than anger that the Internet Services Providers Association
responded last week.
A spokesperson stated: "If the legislation goes through as it is now
worded, it would be in conflict with the EC's e-commerce directive which
holds that ISPs are merely conduits. When that comes into force in
January 2002, it must be incorporated into UK law - so if the tobacco
bill went through in its present form, it would create an inconsistency
in the law. In our lobbying, we will continue to point that out to the
This is an incredibly measured and restrained response. It would surely
have been justified in pointing out the sheer idiocy involved in the ISP
amendments. Shouldn't the industry now unite in making its views
absolutely crystal clear to the Government?
Simon Waldman, the director of digital publishing at The Guardian, can
see why legislators can become befuddled. After all, some ISPs are
effectively media owners too. "In that case, they, like we, have to
accept that in the eyes of the law they are likely to be held
responsible for the content on their sites - no matter where it comes
from," he argues.
On the other hand, when an ISP is merely the means by which a consumer
is hooked up to a website, it's not right or fair to expect that ISP to
be responsible for the site's content.
Waldman adds: "In all of this any legislation needs to have an
appreciation of commercial reality. While being online certainly doesn't
mean you are outside the law, there's no point in making everyone liable
for everything, if it means digital media's entrepreneurs and innovators
find themselves stifled out of existence by impractical legislation, and
the only people who really benefit are the lawyers and the
Alan McCulloch, the chairman of the IPA Digital Marketing Group, agrees
that ISP responsibility is a grey area. He states: "This may be
something that should fall into the remit of the new proposed regulatory
body Ofcom, which will combine media and telecommunications. However, it
looks like the new communications bill won't be presented to Parliament
until 2003, as it was not included in this year's Queen's speech."
In the meantime, rogue legislators continue to stalk the corridors of
the Palace of Westminster. Worrying, isn't it? Charlie Dobres, the chief
executive of i-Level, thinks so. He says: "Yes this is madness, and it
is the latest in a long line. It's a situation that's unparalleled in
any other media. Perhaps to even things up, they should start holding
trees responsible for what appears in magazines."
He concludes: "I think this has brought home to us that we need an
education drive targeted on the people that matter, especially the
people who like introducing lunatic legislation because they have
nothing better to do.
This has to have the backing of the whole advertising industry, not just
digital. After all, it won't be long before these sorts of things impact
right across the advertising industry."