Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Thursday 25th May 2023 Lords Chamber

My only caveat to this proposal relates to what the noble Lord, Lord Allan, said about the bad guys being banned and that, if they are banned, they might emerge somewhere else. We also need to recognise that sometimes people who are called the bad guys can be banned, and they are not the bad guys. They need to be able to say, “We’re not the bad guys”. That is why the more detail, the better. The only other caveat is that I do not want to be in a situation where we demand endless regulatory complexity and reports and impositions make life impossible for the services in terms of red tape and paperwork. That is my only caveat. Generally speaking, however, I am very positive about these amendments, and I hope that by Report they become, one way or another, part of the Bill.

[Lord Clement-Jones (LD)]

My Lords, I strongly support the amendment in the names of the noble Lords, Lord Knight and Lord Stevenson, as well as my noble friend Lady Featherstone. The essence of the message from the noble Lord, Lord Knight, about the need for trust and the fact that you can gain trust through greater transparency is fundamental to this group.

The Joint Committee’s report is now a historical document. It is partly the passage of time, but it was an extraordinary way in which to work through some of the issues, as we did. We were very impacted by the evidence given by Frances Haugen, and the fact that certain things came to light only as a result of her sharing information with the Securities and Exchange Commission. We said at the time that:

“Lack of transparency of service providers also means that people do not have insight into the prevalence and nature of activity that creates a risk of harm on the services that they use”.


That is very much the sense that the noble Lord, Lord Stevenson, is trying to get to by adding scope as well.

We were very clear about our intentions at the time. The Government accepted the recommendation that we made and said that they agreed with the committee that

“services with transparency reporting requirements should be required to publish their transparency reports in full, and in an accessible and public place”.

So what we are really trying to do is to get the Government to agree to what they have already agreed to, which we would have thought would be a relatively straightforward process.

There are some other useful aspects, such as the review of effectiveness of the transparency requirements. I very much appreciate what my noble friend just said about not reading transparency reports. I read the oversight reports but not necessarily the transparency reports. I am not sure that Frances Haugen was a great advert for transparency reports at the time, but that is a mere aside in the circumstances.

I commend my noble friend Lady Featherstone’s Amendment 171, which is very consistent with what we were trying to achieve with the code of practice about violence against women and girls. That would fit very easily within that. One of the key points that my noble friend Lord Allan made is that this is for the benefit of the platforms as well. It is not purely for the users. Of course it is useful for the users, but not exclusively, and this could be a way of platforms engaging with the users more clearly, inserting more fresh air into this. In these circumstances it is pretty conclusive that the Government should adhere to what they agreed to in their response to the Joint Committee’s report.

[The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)]

As ever, I thank all noble Lords who have spoken. I absolutely take, accept and embrace the point that transparency is wholly critical to what we are trying to achieve with the Bill. Indeed, the chandelier of transparency reports should be our shared aim—a greenhouse maybe. I am grateful for everyone’s contributions to the debate. I agree entirely with the views expressed. Transparency is vital in holding companies to account for keeping their users safe online. As has been pointed out, it is also to the benefit of the platforms themselves. Confident as I am that we share the same objectives, I would like to try to reassure noble Lords on a number of issues that have been raised.

Amendments 160A, 160B and 181A in the name of the noble Lord, Lord Knight of Weymouth, seek to require providers to make their transparency reports publicly available, subject to appropriate redactions, and to allow Ofcom to prevent their publication where it deems that the risks posed by drawing attention to illegal content outweigh the benefit to the public of the transparency report. Let me reassure the noble Lord that the framework, we strongly believe, already achieves the aim of those amendments. As set out in Clause 68, Ofcom will specify a range of requirements in relation to transparency reporting in a notice to categories 1, 2A and 2B. This will include the kind of information that is required in the transparency report and the manner in which it should be published. Given the requirement to publish the information, this already achieves the intention of Amendment 160A.

The specific information requested for inclusion within the transparency report will be determined by Ofcom. Therefore, the regulator will be able to ensure that the information requested is appropriate for publication. Ofcom will take into account any risks arising from making the information public before issuing the transparency notice. Ofcom will have separate information-gathering powers, which will enable the regulator to access information that is not suitable to be published in the public domain. This achieves the intention of Amendment 160B. There is also a risk of reducing trust in transparency reporting if there is a mechanism for Ofcom to prevent providers publishing their transparency reports.

Amendment 181A would require Ofcom to issue guidance on what information should be redacted and how this should be done. However, Ofcom is already required to produce guidance about transparency reports, which may include guidance about what information should be redacted and how to do this. It is important to provide the regulator with the flexibility to develop appropriate guidance.

Amendment 165 seeks to expand the information within the transparency reporting requirements to cover the scope of the terms of service set out by user-to-user providers. I very much agree with the noble Lord that it is important that Ofcom can request information about the scope of terms of service, as well as about their application. Our view is that the Bill already achieves this. Schedule 8 sets out the high-level matters about which information may be required. This includes information about how platforms are complying with their duties. The Bill will place duties on user-to-user providers to ensure that any required terms of service are clear and accessible. This will require platforms to set out what the terms of service cover—or, in other words, the scope. While I hope that this provides reassurance on the matter, if there are still concerns in spite of what I have said, I am very happy to look at this. Any opportunity to strengthen the Bill through that kind of clarity is worth looking at.

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He was referring to journalistic sources. I have had a great number of journalists and their representatives reaching out to me, pointing to the terms used by the Minister. They have said that if those algorithms, searches or de-encryption tools are let loose, there is no way of being able to say, “That’s a bit of journalism, so the tool’s not going to apply to it”. That simply does not add up. The amendments in this group are getting into that much broader issue, so I look forward to hearing from the noble Lord, Lord Stevenson, on them.

[Lord Clement-Jones (LD)]

My Lords, this is the most miscellaneous of all the groups that we have had, so it has rightly been labelled as such—and the competition has been pretty strong. I want to come back to the amendments of the noble Lord, Lord Stevenson, and of the noble Lord, Lord Bassam, but first I want to deal with my Amendments 200 and 201 and to put on the record the arguments there.

Again, if I refer back to our joint report, we were strongly of the view—alongside the Communications and Digital Committee—that there should be a statutory requirement for regulators

“to cooperate and consult with one another”.

Although we welcomed the formation of the DRCF, it seemed to us that there should be a much firmer duty. I was pleased to hear the examples that my noble friend put forward of the kinds of co-operation that will be needed. The noble Baroness, Lady Morgan, clearly understands that, particularly in the area of fraud, it could be the FCA or ICO, and it could be Ofcom in terms in social media. There is a range of aspects to this—it could be the ASA.

These bodies need to co-operate. As my noble friend pointed out, they can apparently conflict; therefore, co-operating on the way that they advise those who are subject to regulation is rather important. It is not just about the members of the Digital Regulation Cooperation Forum. Even the IWF and the ASA could be included in that, not to mention other regulators in this analogous space. That forum has rightly been labelled as “Digital”, and digital business is now all-pervasive and involves a huge number of regulatory aspects.

Although in this context Ofcom will have the most relevant powers and expertise, and many regulators will look to it for help in tackling online safety issues, effective public protection will be achieved through proper regulatory co-operation. Therefore, Ofcom should be empowered to co-operate with others to share information. As much as it can, Ofcom should be enabled to work with other regulators and share online safety information with them.

It has been very heartening to see the noble Lord, Lord Grade, in his place, even on a Thursday afternoon, and heartening how Ofcom has engaged throughout the passage of the Bill. We know the skills that it is bringing on board, and with those skills we want it to bring other regulators into its work. It seems that Ofcom is taking the lead on those algorithmic understanding skills, but we need Ofcom to have the duty to co-operate with the other regulators on this as well.

Strangely, in Clause 103 the Bill gives Ofcom the general ability to co-operate with overseas regulators, but it is largely silent on co-operation with UK regulators. Indeed, the Communications Act 2003 limits the UK regulators with which Ofcom can share information, excluding the ICO, for example, which is rather perverse in these circumstances. However, the Bill has a permissive approach to overseas regulators so, again, it should extend co-operation and information-sharing in respect of online safety to include regulators overseeing the offences in Schedule 7 that we have spent some time talking about today—the enforcement authorities, for instance, those responsible for enforcing the offences in relation to priority harms to children and priority offences regarding adults. Elsewhere in regulation, the Financial Conduct Authority may have a general duty to co-operate. The reverse may be true, so that duty of co-operation will need to work both ways.

As my noble friend Lord Allan said, Amendment 200, the skilled persons provision, is very straightforward. It is just to give the formal power to be able to use the expertise from a different regulator. It is a very well-known procedure to bring skilled persons into inquiries, which is exactly what is intended there.

Both amendments tabled by the noble Lord, Lord Bassam, are rather miscellaneous too, but are not without merit, particularly Amendment 185A. Please note that I agree with the noble Baroness, Lady Fox. I 100% support the intention behind the amendment but wonder whether the Bill is the right vehicle for it. No doubt the Minister will answer regarding the scope and how practical it would be. I absolutely applaud the noble Lord for campaigning on this issue. It is extraordinarily important, because we have seen some tragic outcomes of these weapons being available for sale online.

Amendment 268AA, also tabled by the noble Lord, Lord Bassam, is entirely different. Our Joint Committee heard evidence from Edleen John of the FA and Rio Ferdinand about abuse online. It was powerful stuff. I tend to agree with my noble friend. We have talked about user empowerment, the tools for it and, particularly in the context of violence against women and girls, the need for a way to be able to report that kind of abuse or other forms of content online. This is a candidate for that kind of treatment. While platforms obviously need to prevent illegal content and have systems to prevent it and so on, having assessed risk in the way that we have heard about previously, I do not believe that expecting the platforms to pick it up and report it, turning them into a sort of proto-enforcer, is the most effective way. We have to empower users. I absolutely share the objectives set out.

[Lord Bassam of Brighton (Lab)]

My Lords, when I brought an amendment to a police Bill, my local football club said to me that it was anticipating spending something like £100,000 a year trying to create and develop filters, which were commercially available, to stop its footballers being able to see the abuse that they were getting online. It did that for a very sensible commercial reason because those footballers’ performance was affected by the abuse they got. I want to know how the noble Lord sees this working if not by having some form of intervention that involves the platforms. Obviously, there is a commercial benefit to providers of filters et cetera, but it is quite hard for those who have been victims to see a way to make this useful to them without some external form of support.

[Lord Clement-Jones (LD)]

I absolutely take what the noble Lord is saying, and I am not saying that the platforms do not have responsibility. Of course they do: the whole Bill is about the platforms taking responsibility with risk assessment, adhering to their terms of service, transparency about how those terms are operating, et cetera. It is purely on the question of whether they need to be reporting that content when it occurs. They have takedown responsibilities for illegal content or content that may be seen by children and so on, but it is about whether they have the duty to report to the police. It may seem a relatively narrow point, but it is quite important that we go with the framework. Many of us have said many times that we regret the absence of “legal but harmful” but, given where we are, we basically have to go with that architecture.

I very much enjoyed listening to the noble Baroness, Lady Bennett. There is no opportunity lost in the course of the Bill to talk about ChatGPT or GPT-4, and that was no exception. It means that we need to listen to how young people are responding to the way that this legislation operates. I am fully in favour of whatever mechanism it may be. It does not need to be statutory, but I very much hope that we do not treat this just as the end of the process but will see how the Bill works out and will listen and learn from experience, and particularly from young people who are particularly vulnerable to much of the content, and the way that the algorithms on social media work.

[Lord Stevenson of Balmacara (Lab)]

My Lords—

[Lord Clement-Jones (LD)]

I am so sorry. With due respect to the noble Lord, Lord Stevenson, the noble Baroness, Lady Bennett, reminded me that his Amendments 202ZA and 210A, late entrants into the miscellaneous group, go very much with the grain that we are trying to get in within the area of encryption. We had quite a long debate about encryption on Clause 110. As ever, the noble Lord has rather cunningly produced something that I think will get us through the eye of the free speech needle. They are two very cunning amendments.

[Lord Stevenson of Balmacara (Lab)]

I thank the noble Lord for that. Free expression, my Lords, not free speech.

[Lord Clement-Jones (LD)]

Freedom of expression.

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[Baroness Fox of Buckley (Non-Afl)]

I was suggesting that we have a bigger problem than it appearing on a small site. It quotes from mainstream media, but it ends up being broadly disseminated and not because it is on a small site. I am not advocating that we all go round carrying the manifestos of mass shooters and legitimising them. I was more making the point that it can be complicated. Would not the solution be that you can make appeals that a small site is treated differently? That is the way we deal with harmful material in general and the way we have dealt with, for example, RT as press without compromising on press freedom. That is the kind of point I am trying to make.

I understand lots of concerns but I do not want us to get into a situation where we destroy the potential of all smaller platforms—many of them doing huge amounts of social good, part of civil society and all the rest of it—by treating them as though they are large platforms. They just will not have the resources to survive, that is all my point is.

[Lord Clement-Jones (LD)]

My Lords, I am going to be extremely brief given the extremely compelling way that these amendments have been introduced by the noble Baroness, Lady Morgan, and the noble Lord, Lord Griffiths, and contributed to by the noble Baroness, Lady Bull. I thank her for her comments about my noble friend Lady Parminter. I am sure she would have wanted to be here and would have made a very valuable contribution as she did the other day on exactly this subject.

As the noble Baroness, Lady Fox, has illustrated, we have a very different view of risk across this Committee and we are back, in a sense, into that whole area of risk. I just wanted to say that I think we are again being brought back to the very wise words of the Joint Committee. It may sound like special pleading. We keep coming back to this, and the noble Lord, Lord Stevenson, and I are the last people standing on a Thursday afternoon.

We took a lot of evidence in this particular area. We took the trouble to go to Brussels and had a very useful discussion with the Centre on Regulation in Europe and Dr Sally Broughton Micova. We heard a lot about interconnectedness between some of these smaller services and the impact in terms of amplification across other social media sites.

We heard in the UK from some of the larger services about their concerns about the activities of smaller services. You might say “They would say that, wouldn’t they?” but they were pretty convincing. We heard from HOPE not Hate, the Antisemitism Policy Trust and Stonewall, stressing the role of alternative services.

Of course, we know that these amendments today—some of them sponsored by the Mental Health Foundation, as the noble Lord, Lord Griffiths, said, and Samaritans—have a very important provenance. They recognise that these are big problems. I hope that the Minister will think strongly about this. The injunction from the noble Lord, Lord Allan, to consider how all this is going to work in practice is very important. I very much hope that when we come to consider how this works in practical terms that the Minister will think very seriously about the way in which risk is to the fore— the more nuanced approach that we suggested—and the whole way that profiling by Ofcom will apply. I think that is going to be extremely important as well. I do not think we have yet got to the right place in the Bill which deals with these risky sites. I very much hope that the Minister will consider this in the quite long period between now and when we next get together.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a good little debate with some excellent speeches, which I acknowledge. Like the noble Lord, Lord Clement-Jones, I was looking at the Joint Committee’s report. I concluded that one of the first big issues we discussed was how complicated the categorisation seemed in relation to the task that was being set for Ofcom. We comforted ourselves with the thought that if you believe that this is basically a risk-assessment exercise and that all the work Ofcom will subsequently do is driven by its risk assessments and its constant reviewing of them, then the categorisation is bound to fall down because the risks will reveal the things that need to happen.