ONLINE SAFETY BILL (Second sitting)

Charlotte Nichols Excerpts

Committee stage (re-committed clauses and schedules)
Tuesday 13th December 2022 Public Bill Committees

[The Chair]

I remind the Committee that with this we are discussing the following:

Clause 13 stand part.

Government amendments 18, 23 to 25, 32, 33 and 39.

Clause 55 stand part.

Government amendments 42 to 45, 61 to 66, 68 to 70, 74, 80, 85, 92, 51 and 52, 54, 94 and 60.

[Charlotte Nichols (Warrington North) (Lab)]

It is a pleasure to serve under your chairship, Dame Angela. I did not make a note of the specific word I was on when we adjourned, so I hope Hansard colleagues will forgive me if the flow between what I said previously and what I say now is somewhat stilted.

I will keep this brief, because I was—purposefully—testing the patience of the Minister with some of my contributions. However, I did so to hammer home the fact that the removal of clauses 12 and 13 from the Bill is a fatal error. If the recommittal of the Bill is not to fundamentally undermine what the Bill set out to do five years or so ago, their removal should urgently be reconsidered. We have spent five years debating the Bill to get it to this point.

As I said, there are forms of harm that are not illegal, but they are none the less harmful, and they should be legislated for. They should be in the Bill, as should specific protections for adults, not just children. I therefore urge the Minister to keep clauses 12 and 13 in the Bill so that we do not undermine what it set out to do and all the work that has been done up to this point. Inexplicably, the Government are trying to undo that work at this late stage before the Bill becomes law.

[Sarah Owen (Luton North) (Lab)]

It is a pleasure to see you in the Chair, Dame Angela—I wish it was a toastier room. Let me add to the points that the shadow Minister, my hon. Friend the Member for Pontypridd, made so powerfully about vulnerable people. There is no cliff edge when such a person becomes 18. What thought have the Minister and the Department given to vulnerable young adults with learning disabilities or spectrum disorders? Frankly, the idea that, as soon as a person turns 18, they are magically no longer vulnerable is for the birds—particularly when it comes to eating disorders, suicide and self-harm.

Adults do not live in isolation, and they do not just live online. We have a duty of care to people. The perfect example is disinformation, particularly when it comes to its harmful impact on public health. We saw that with the pandemic and vaccine misinformation. We saw it with the harm done to children by the anti-vaccine movement’s myths about vaccines, children and babies. It causes greater harm than just having a conversation online.

People do not stay in one lane. Once people start being sucked into conspiracy myths, much as we discussed earlier around the algorithms that are used to keep people online, it has to keep ramping up. Social media and tech companies do that very well. They know how to do it. That is why I might start looking for something to do with ramen recipes and all of a sudden I am on to a cat that has decided to make noodles. It always ramps up. That is the fun end of it, but on the serious end somebody will start to have doubts about certain public health messages the Government are sending out. That then tips into other conspiracy theories that have really harmful, damaging consequences.

I saw that personally. My hon. Friend the Member for Warrington North eloquently put forward some really powerful examples of what she has been subjected to. With covid, some of the anti-vaccinators and anti-mask-wearers who targeted me quickly slipped into Sinophobia and racism. I was sent videos of people eating live animals, and being blamed for a global pandemic.

The people who have been targeted do not stay in one lane. The idea that adults are not vulnerable, and susceptible, to such targeting and do not need protection from it is frankly for the birds. We see that particularly with extremism, misogyny and the incel culture. I take the point from our earlier discussion about who determines what crosses the legal threshold, but why do we have to wait until somebody is physically hurt before the Government act?

That is really regrettable. So, too, is the fact that this is such a huge U-turn in policy, with 15% of the Bill coming back to Committee. As we have heard, that is unprecedented, and yet, on the most pivotal point, we were unable to hear expert advice, particularly from the National Society for the Prevention of Cruelty to Children, Barnardo’s and the Antisemitism Policy Trust. I was struggling to understand why we would not hear expert advice on such a drastic change to an important piece of legislation—until I heard the hon. Member for Don Valley talk about offence. This is not about offence; it is about harm.

The hon. Member’s comments highlighted perfectly the real reason we are all here in a freezing cold Bill Committee, rehashing work that has already been solved. The Bill was not perfect by any stretch of the imagination, but it was better than what we have today. The real reason we are here is the fight within the Conservative party.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Paul Scully)]

It is a pleasure to serve under your chairmanship, Dame Angela.

A lot of the discussion has replayed the debate from day two on Report about the removal of “legal but harmful” measures. Some of the discussion this morning and this afternoon has covered really important issues such as self-harm on which, as we said on the Floor of the House, we will introduce measures at a later stage. I will not talk about those measures now, but I would just say that we have already said that if we agree that the promotion of things such as self-harm is illegal, it should be illegal. Let us be very straight about how we deal with the promotion of self-harm.

The Bill will bring huge improvements for adult safety online. In addition to their duty to tackle illegal content, companies will have to provide adult users with tools to keep themselves safer. On some of the other clauses, we will talk about the triple shield that was mentioned earlier. If the content is illegal, it will still be illegal. If content does not adhere to the companies’ terms of service—that includes many of the issues that we have been debating for the last hour—it will have to be removed. We will come to user enforcement issues in further clauses.

[Charlotte Nichols]

The Minister mentions tools for adults to keep themselves safe. Does he not think that that puts the onus on the users—the victims—to keep themselves safe? The measures as they stand in the Bill put the onus on the companies to be more proactive about how they keep people safe.

[Paul Scully]

The onus on adults is very much a safety net—very much a catch-all, after we have put the onus on the social media companies and the platforms to adhere to their own terms and conditions.

We have heard a lot about Twitter and the changes to Twitter. We can see the commercial imperative for mainstream platforms, certainly the category 1 platforms, to have a wide enough catch-all in their terms of service—anything that an advertiser, for example, would see as reasonably sensible—to be able to remain a viable platform in the first place. When Elon Musk first started making changes at Twitter, a comment did the rounds: “How do you build a multimillion-dollar company? You sell it to Elon Musk for £44 billion.” He made that change. He has seen the bottom falling out of his market and has lost a lot of the cash he put into Twitter. That is the commercial impetus that underpins a lot of the changes we are making.

--- Later in debate ---

For that reason, which has been well addressed in the main Chamber and which we will continue to talk about the Bill continues its passage, this legislation finds the right balance between protecting free speech and freedom of expression, which are vital aims, and protecting vulnerable adults and particularly children. These user empowerment duties are about giving users greater control over their online experience, very much as a safety net, but understanding the risk assessments that each platform will have to provide. It is right that the Bill empowers vulnerable people who may find certain types of legal content unhelpful or harmful, depending on their personal circumstances. We had the sentence from the hon. Member for Warrington North about people’s different experiences, so it is right that people can change and enforce their own experience with that safety net.

[Charlotte Nichols]

One of the examples I alluded to, which is particularly offensive for Jewish people, LGBT people and other people who were persecuted in the Nazi holocaust, is holocaust denial. Does the Minister seriously think that it is only Jewish people, LGBT people and other people who were persecuted in the holocaust who find holocaust denial offensive and objectionable and who do not want to see it as part of their online experience? Surely having these sorts of safety nets in place and saying that we do not think that certain kinds of content—although they may not be against the law—have a place online protects everyone’s experience, whether they are Jewish or not. Surely, no one wants to see holocaust denial online.

[Paul Scully]

No, but there is freedom of expression to a point—when it starts to reach into illegality. We have to have the balance right: someone can say something in public—in any session offline—but what the hon. Lady is suggesting is that, as soon as they hit a keyboard or a smartphone, there are two totally different regimes. That is not getting the balance right.

[Charlotte Nichols]

The Minister says that we should have freedom of speech up to a point. Does that point include holocaust denial? He has just suggested that if something is acceptable to say in person, which I do not think holocaust denial should be, it should be acceptable online. Surely holocaust denial is objectionable whenever it happens, in whatever context—online or offline.

[Paul Scully]

I have been clear about where I set the line. [Interruption.] I have said that if something is illegal, it is illegal. The terms of service of the platforms largely cover the list that we are talking about. As my hon. Friend the Member for Folkestone and Hythe and I have both said, the terms of service of the vast majority of platforms—the big category 1 platforms—set a higher bar than was in our original Bill. The hon. Member for Luton North talked about whether we should have more evidence. I understand that the pre-legislative scrutiny committee heard evidence and came to a unanimous conclusion that the “legal but harmful” conditions should not be in the Bill.

--- Later in debate ---

[Paul Scully]

I have talked a little already about these amendments, so let me sum up where I think we are. I talked about harmful health content and why it is not included. The Online Safety Bill will force social media companies to tackle health misinformation and disinformation online, where it constitutes a criminal offence. It includes the communications offence, which would capture posts encouraging dangerous hoax cures, where the sender knows the information to be false and intends to cause harm, such as encouraging drinking bleach to cure cancer, which we heard about a little earlier.

The legislation is only one part of the wider Government approach to this issue. It includes the work of the counter-disinformation unit, which brings together cross-Government monitoring and analysis capabilities and engages with platforms directly to ensure that appropriate action is taken, in addition to the Government’s work to build users’ resilience to misinformation through media literacy.

Including harmful health content as a category risks requiring companies to apply the adult user empowerment tools to an unfeasibly large volume of content—way beyond just the vaccine efficacy that was mentioned. That has implications both for regulatory burden and for freedom of expression, as it may capture important health advice. Similarly, on climate change, the Online Safety Bill itself will introduce new transparency, accountability and free speech duties and category one services. If a platform said that certain types of content are not allowed, it will be held to account for their removal.

We recognised that there was a heightened risk of disinformation surrounding the COP26 summit. The counter-disinformation unit led by the Department for Digital, Culture, Media and Sport brought together monitoring and analysis capabilities across Government to understand disinformation that posed a risk to public safety or to delegates or that represented attempts at interference from malign actors. We are clear that free debate is essential to a democracy and that the counter-disinformation unit should not infringe upon political debate. Government already work closely with the major social media platforms to encourage them to collaborate at speed to remove disinformation as per their terms of service.

Amendment (a) to amendment 15 and amendment (a) to amendment 16 would create that new category of content that incites hateful extremism. That is closely aligned with the approach that the Government are already taking with amendment 15, specifically subsections (8C) and (8D), which create a category of content that is abusive or incites hate on the basis of race, religion, sex, sexual orientation, disability, or gender reassignment. Those conditions would likely capture the majority of the kinds of content that the hon. Members are seeking to capture through their hateful extremism category. For example, it would capture antisemitic abuse and conspiracy theories, racist abuse and promotion of racist ideologies.

Furthermore, where companies’ terms of service say they prohibit or apply restrictions to the kind of content listed in the Opposition amendments, companies must ensure that those terms are consistently enforced. It comes back so much to the enforcement. They must also ensure that the terms of service are easily understandable.

[Charlotte Nichols]

If this is about companies enforcing what is in their terms of service for the use of their platforms, could it not create a perverse incentive for them to have very little in their terms of service? If they will be punished for not enforcing their terms of service, surely they will want them to be as lax as possible in order to limit their legal liability for enforcing them. Does the Minister follow?

[Paul Scully]

I follow, but I do not agree. The categories of content in proposed new subsections (8C) and (8D), introduced by amendment 15, underpin a lot of this. I answered the question in an earlier debate when talking about the commercial impetus. I cannot imagine many mainstream advertisers wanting to advertise with a company that removed from its terms of service the exclusion of racial abuse, misogyny and general abuse. We have seen that commercial impetus really kicking in with certain platforms. For those reasons, I am unable to accept the amendments to the amendments, and I hope that the Opposition will not press them to a vote.

--- Later in debate ---

[Charlotte Nichols]

I note that many providers of 4G internet, including the one I have on my own phone, already block adult content. Essentially, if people want to look at pornography or other forms of content, they have to proactively opt in to be allowed to see it. Would it not make sense to make something as straightforward as that, which already exists, into the model that we want on the internet more widely, as opposed to leaving it to EE and others to do?

[Kirsty Blackman]

I absolutely agree. Another point that has been made is that this is not creating undue burden; the Government are already creating the burden for companies—I am not saying that it is a bad burden, but the Government are already creating it. We just want people to have the opportunity to opt into it, or out of it. That is the position that we are in.

--- Later in debate ---

[Charlotte Nichols]

I am sure that, like me, the shadow Minister will be baffled that the Government are against our proposals to have to opt out. Surely this is something that is of key concern to the Government, given that the former MP for Tiverton and Honiton might still be an MP if users had to opt in to watching pornography, rather than being accidentally shown it when innocently searching for tractors?

[Alex Davies-Jones]

My hon. Friend makes a very good point. It goes to show the nature of this as a protection for all of us, even MPs, from accessing content that could be harmful to our health or, indeed, profession. Given the nature of the amendment, we feel that this is a safety net that should be available to all. It should be on by default.

--- Later in debate ---

[Paul Scully]

I appreciate the hon. Lady’s remarks. We have tried to ensure that the Bill is proportionate, inasmuch as the Secretary of State can designate content if there is material risk of significant harm to an appreciable number of children in the United Kingdom. The Bill also requires the Secretary of State to consult Ofcom before making regulations on the priority categories of harm.

[Charlotte Nichols]

I appreciate that this point has been made about the same wording earlier today, but I really feel that the ambiguity of “appreciable number” is something that could do with being ironed out. The ambiguity and vagueness of that wording make it very difficult to enforce the provision. Does the Minister agree that “appreciable number” is too vague to be of real use in legislation such as this?

[Paul Scully]

The different platforms, approaches and conditions will necessitate different numbers; it would be hard to pin a number down. The wording is vague and wide-ranging because it is trying to capture any number of scenarios, many as yet unknown. However, the regulations designating priority harms will be made under the draft affirmative resolution procedure.

--- Later in debate ---

Of course, Ofcom would be free to appoint outside experts, not just people from within the organisation. It could bring in a specialist with particular knowledge of an area where it had concerns. It could do that at any time and appoint as many people as it liked.

[Charlotte Nichols]

As much as I am keen on the idea of Ofcom special agents conceptually, my concern on the transparency front is that, to appoint a special agent and send them in to look at the data, Ofcom would have to have cause to believe that there was an issue of concern with the data, whereas if that data is more transparently available to the research community, they can then proactively identify things that they can flag to Ofcom as a concern. Without that, we are relying on an annual cycle of Ofcom being able to intervene only when they have a concern, rather than the research community, which is much better placed to make that determination, being able to keep a watching brief on the company.

[Damian Collins]

That concern would be triggered by Ofcom discovering things as a consequence of user complaint. Although Ofcom is not a complaint resolution company, users can complain to it. Independent academics and researchers may produce studies and reports highlighting problems at any time, so Ofcom does not have to wait through an annual cycle of transparency reporting. At any time, Ofcom can say, “We want to have a deeper look at this problem.” It could be something Ofcom or someone else has discovered, and Ofcom can either research that itself or appoint an outside expert.

As the hon. Member for Warrington North mentioned, very sensitive information might become apparent through the transparency reporting that one might not necessarily wish to make public because it requires further investigation and could highlight a particular flaw that could be exploited by bad actors. I would hope and expect, as I think we all would, that we would have the routine publication of transparency reporting to give people assurance that the platforms are meeting their obligations. Indeed, if Ofcom were to intervene against a platform, it would probably use information gathered and received to provide the rationale for why a fine has been issued or another intervention has been made. I am sure that Ofcom will draw all the time on information gathered through transparency reporting and, where relevant, share it.

[Paul Scully]

This has been a helpful debate. Everyone was right that transparency must be and is at the heart of the Bill. From when we were talking earlier today about how risk assessments and terms of service must be accessible to all, through to this transparency reporting section, it is important that we hold companies to account and that the reports play a key role in allowing users, Ofcom and civil society, including those in academia, to understand the steps that companies are taking to protect users.

Under clause 65, category 1 services, category 2A search services and category 2B user-to-user services need to publish transparency reports annually in accordance with the transparency report notice from Ofcom. That relates to the points about commerciality that my hon. Friend the Member for Folkestone and Hythe talked about. Ofcom will set out what information is required from companies in their notice, which will also specify the format, manner and deadline for the information to be provided to Ofcom. Clearly, it would not be proportionate to require every service provider within the scope of the overall regulatory framework to produce a transparency report—it is also important that we deal with capacity and proportionality—but those category threshold conditions will ensure that the framework is flexible and future-proofed.

[Charlotte Nichols]

I note what the Minister said about the commercial implications of some of these things, and some of those commercial implications might act as levers to push companies to do better on some things. By that same token, should this information not be more transparent and publicly available to give the user the choice he referred to earlier? That would mean that if a user’s data was not being properly protected and these companies were not taking the measures around safety that the public would expect, users can vote with their feet and go to a different platform. Surely that underpins a lot of what we have been talking about.

[Paul Scully]

Yes, and that is why Ofcom will be the one that decides which information should be published, and from whom, to ensure that it is proportionate. At the end of the day, I have talked about the fact that transparency is at the heart of the Bill and that the transparency reports are important. To go to the original point raised by the hon. Member for Pontypridd about when these reports will be published, they will indeed be published in accordance with subsection 3(d) of the clause.

Question put and agreed to.

Clause 65 accordingly ordered to stand part of the Bill.

Schedule 8

Transparency reports by providers of Category 1 services, Category 2A services and Category 2B services

Amendments made: 61, in schedule 8, page 203, line 13, leave out

“priority content that is harmful to adults”

and insert “relevant content”.

This amendment means that OFCOM can require providers of user-to-user services to include information in their transparency report about content which the terms of service say can be taken down or restricted. The reference to content that is harmful to adults is omitted, as a result of the removal of the adult safety duties (see Amendments 6, 7 and 41).

Amendment 62, in schedule 8, page 203, line 15, leave out

“priority content that is harmful to adults”

and insert “relevant content”.

This amendment means that OFCOM can require providers of user-to-user services to include information in their transparency report about content which the terms of service say can be taken down or restricted. The reference to content that is harmful to adults is omitted, as a result of the removal of the adult safety duties (see Amendments 6, 7 and 41).

Amendment 63, in schedule 8, page 203, line 17, leave out

“priority content that is harmful to adults”

and insert “relevant content”.

This amendment means that OFCOM can require providers of user-to-user services to include information in their transparency report about content which the terms of service say can be taken down or restricted. The reference to content that is harmful to adults is omitted, as a result of the removal of the adult safety duties (see Amendments 6, 7 and 41).

Amendment 64, in schedule 8, page 203, line 21, leave out from “or” to end of line 23 and insert “relevant content”.

This amendment means that OFCOM can require providers of user-to-user services to include information in their transparency report about user reporting of content which the terms of service say can be taken down or restricted. The reference to content that is harmful to adults is omitted, as a result of the removal of the adult safety duties (see Amendments 6, 7 and 41).

Amendment 65, in schedule 8, page 203, line 25, leave out

“priority content that is harmful to adults”

and insert “relevant content”.

This amendment means that OFCOM can require providers of user-to-user services to include information in their transparency report about content which the terms of service say can be taken down or restricted. The reference to content that is harmful to adults is omitted, as a result of the removal of the adult safety duties (see Amendments 6, 7 and 41).

Amendment 66, in schedule 8, page 203, line 29, leave out

“priority content that is harmful to adults”

and insert “relevant content”.

This amendment means that OFCOM can require providers of user-to-user services to include information in their transparency report about content which the terms of service say can be taken down or restricted. The reference to content that is harmful to adults is omitted, as a result of the removal of the adult safety duties (see Amendments 6, 7 and 41).

Amendment 67, in schedule 8, page 203, line 41, at end insert—

“11A Measures taken or in use by a provider to comply with any duty set out in section (Duty not to act against users except in accordance with terms of service) or (Further duties about terms of service) (terms of service).”

This amendment means that OFCOM can require providers of user-to-user services to include information in their transparency report about measures taken to comply with the new duties imposed by NC3 and NC4.

Amendment 68, in schedule 8, page 204, line 2, leave out from “illegal content” to end of line 3 and insert

“or content that is harmful to children—”.

This amendment removes the reference to content that is harmful to adults, as a result of the removal of the adult safety duties (see Amendments 6, 7 and 41).

Amendment 69, in schedule 8, page 204, line 10, leave out from “illegal content” to “, and” in line 12 and insert

“and content that is harmful to children”.

This amendment removes the reference to content that is harmful to adults, as a result of the removal of the adult safety duties (see Amendments 6, 7 and 41).

Amendment 70, in schedule 8, page 204, line 14, leave out from “illegal content” to “present” in line 15 and insert

“and content that is harmful to children”.

This amendment removes the reference to content that is harmful to adults, as a result of the removal of the adult safety duties (see Amendments 6, 7 and 41).

Amendment 71, in schedule 8, page 205, line 38, after “Part 3” insert

“or Chapters 1 to 2A of Part 4”.—(Paul Scully.)

This amendment requires OFCOM, in considering which information to require from a provider in a transparency report, to consider whether the provider is subject to the duties imposed by Chapter 2A, which is the new Chapter expected to be formed by NC3 to NC6 (and Chapter 1 of Part 4).