Tuesday 13th December 2022
(1 year, 4 months ago)
Public Bill CommitteesOnline Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 13 December 2022 - (13 Dec 2022)
Alex Davies-Jones
Of course, Sir Roger. Without addressing the other amendments, I would like us to move away from the overly content-focused approach that the Government seem intent on taking in the Bill more widely. I will leave my comments there on the SNP amendment, but we support our SNP colleagues on it.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Paul Scully)
It is a pleasure to serve under your chairmanship, Sir Roger.
Being online can be a hugely positive experience for children and young people, but we recognise the challenge of habit-forming behaviour or designed addiction to some digital services. The Bill as drafted, however, would already deliver the intent of the amendment from the hon. Member for Aberdeen North. If service providers identify in their risk assessment that habit-forming or addictive-behaviour risks cause significant harm to an appreciable number of children on a service, the Bill will require them to put in place measures to mitigate and manage that risk under clause 11(2)(a).
To meet the child safety risk assessment duties under clause 10, services must assess the risk of harm to children from the different ways in which the service is used; the impact of such use; the level of risk of harm to children; how the design and operation of the service may increase the risks identified; and the functionalities that facilitate the presence or dissemination of content of harm to children. The definition of “functionality” at clause 200 already includes an expression of a view on content, such as applying a “like” or “dislike” button, as at subsection (2)(f)(i).
Sarah Owen
I thank the Minister for giving way so early on. He mentioned an “appreciable number”. Will he clarify what that is? Is it one, 10, 100 or 1,000?
Paul Scully
I do not think that a single number can be put on that, because it depends on the platform and the type of viewing. It is not easy to put a single number on that. An “appreciable number” is basically as identified by Ofcom, which will be the arbiter of all this. It comes back to what the hon. Member for Aberdeen North said about the direction that we, as she rightly said, want to give Ofcom. Ofcom has a range of powers already to help it assess whether companies are fulfilling their duties, including the power to require information about the operation of their algorithms. I would set the direction that the hon. Lady is looking for, to ensure that Ofcom uses those powers to the fullest and can look at the algorithms. We should bear in mind that social media platforms face criminal liability if they do not supply the information required by Ofcom to look under the bonnet.
Kirsty Blackman
If platforms do not recognise that they have an issue with habit-forming features, even though we know they have, will Ofcom say to them, “Your risk assessment is insufficient. We know that the habit-forming features are really causing a problem for children”?
Paul Scully
We do not want to wait for the Bill’s implementation to start those conversations with the platforms. We expect companies to be transparent about their design practices that encourage extended engagement and to engage with researchers to understand the impact of those practices on their users.
The child safety duties in clause 11 apply across all areas of a service, including the way it is operated and used by children and the content present on the service. Subsection (4)(b) specifically requires services to consider the
“design of functionalities, algorithms and other features”
when complying with the child safety duties. Given the direction I have suggested that Ofcom has, and the range of powers that it will already have under the Bill, I am unable to accept the hon. Member’s amendment, and I hope she will therefore withdraw it.
Kirsty Blackman
I would have preferred it had the Minister been slightly more explicit that habit-forming features are harmful. That would have been slightly more helpful.
Kirsty Blackman
I thank the Minister. Absolutely—they are not always harmful. With that clarification, I am happy to beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Paul Scully
I beg to move amendment 1, in clause 11, page 10, line 22, leave out
“, or another means of age assurance”.
This amendment omits words which are no longer necessary in subsection (3)(a) of clause 11 because they are dealt with by the new subsection inserted by Amendment 3.
Paul Scully
The Bill’s key objective, above everything else, is the safety of young people online. That is why the strongest protections in the Bill are for children. Providers of services that are likely to be accessed by children will need to provide safety measures to protect child users from harmful content, such as pornography, and from behaviour such as bullying. We expect companies to use age verification technologies to prevent children from accessing services that pose the highest risk of harm to them, and age assurance technologies and other measures to provide children with an age-appropriate experience.
The previous version of the Bill already focused on protecting children, but the Government are clear that the Bill must do more to achieve that and to ensure that the requirements on providers are as clear as possible. That is why we are strengthening the Bill and clarifying the responsibilities of providers to provide age-appropriate protections for children online. We are making it explicit that providers may need to use age assurance to identify the age of their users in order to meet the child safety duties for user-to-user services.
The Bill already set out that age assurance may be required to protect children from harmful content and activity, as part of meeting the duty in clause 11(3), but the Bill will now clarify that it may also be needed to meet the wider duty in subsection (2) to
“mitigate and manage the risks of harm to children”
and to manage
“the impact of harm to children”
on such services. That is important so that only children who are old enough are able to use functionalities on a service that poses a risk of harm to younger children. The changes will also ensure that children are signposted to support that is appropriate to their age if they have experienced harm. For those reasons, I recommend that the Committee accepts the amendments.
Alex Davies-Jones
I have a few questions regarding amendments 1 to 3, which as I mentioned relate to the thorny issue of age verification and age assurance, and I hope the Minister can clarify some of them.
We are unclear about why, in subsection (3)(a), the Government have retained the phrase
“for example, by using age verification, or another means of age assurance”.
Can that difference in wording be taken as confirmation that the Government want harder forms of age verification for primary priority content? The Minister will be aware that many in the sector are unclear about what that harder form of age verification may look like, so some clarity would be useful for all of us in the room and for those watching.
In addition, we would like to clarify the Minister’s understanding of the distinction between age verification and age assurance. They are very different concepts in reality, so we would appreciate it if he could be clear, particularly when we consider the different types of harm that the Bill will address and protect people from, how that will be achieved and what technology will be required for different types of platform and content. I look forward to clarity from the Minister on that point.
Paul Scully
That is a good point. In essence, age verification is the hard access to a service. Age assurance ensures that the person who uses the service is the same person whose age was verified. Someone could use their parent’s debit card or something like that, so it is not necessarily the same person using the service right the way through. If we are to protect children, in particular, we have to ensure that we know there is a child at the other end whom we can protect from the harm that they may see.
On the different technologies, we are clear that our approach to age assurance or verification is not technology-specific. Why? Because otherwise the Bill would be out of date within around six months. By the time the legislation was fully implemented it would clearly be out of date. That is why it is incumbent on the companies to be clear about the technology and processes they use. That information will be kept up to date, and Ofcom can then look at it.
Kirsty Blackman
Thank you, Sir Roger. It was helpful to hear the Minister’s clarification of age assurance and age verification, and it was useful for him to put on the record the difference between the two.
I have a couple of points. In respect of Ofcom keeping up to date with the types of age verification and the processes, new ones will come through and excellent new methods will appear in coming years. I welcome the Minister’s suggestion that Ofcom will keep up to date with that, because it is incredibly important that we do not rely on, say, the one provider that there is currently, when really good methods could come out. We need the legislation to ensure that we get the best possible service and the best possible verification to keep children away from content that is inappropriate for them.
This is one of the most important parts of the Bill for ensuring that we can continue to have adult sections of the internet—places where there is content that would be disturbing for children, as well as for some adults—and that an age-verification system is in place to ensure that that content can continue to be there. Websites that require a subscription, such as OnlyFans, need to continue to have in place the age-verification systems that they currently have. By writing into legislation the requirement for them to continue to have such systems in place, we can ensure that children cannot access such services but adults can continue to do so. This is not about what is banned online or about trying to make sure that this content does not exist anywhere; it is specifically about gatekeeping to ensure that no child, as far as we can possibly manage, can access content that is inappropriate for kids.
There was a briefing recently on children’s access to pornography, and we heard horrendous stories. It is horrendous that a significant number of children have seen inappropriate content online, and the damage that that has caused to so many young people cannot be overstated. Blocking access to adult parts of the internet is so important for the next generation, not just so that children are not disturbed by the content they see, but so that they learn that it is not okay and normal and understand that the depictions of relationships in pornography are not the way reality works, not the way reality should work and not how women should be treated. Having a situation in which Ofcom or anybody else is better able to take action to ensure that adult content is specifically accessed only by adults is really important for the protection of children and for protecting the next generation and their attitudes, particularly towards sex and relationships.
Rachel Maclean (Redditch) (Con)
I wish to add some brief words in support of the Government’s proposals and to build on the comments from Members of all parties.
We know that access to extreme and abusive pornography is a direct factor in violence against women and girls. We see that play out in the court system every day. People claim to have watched and become addicted to this type of pornography; they are put on trial because they seek to play that out in their relationships, which has resulted in the deaths of women. The platforms already have technology that allows them to figure out the age of people on their platforms. The Bill seeks to ensure that they use that for a good end, so I thoroughly support it. I thank the Minister.
Damian Collins (Folkestone and Hythe) (Con)
There are two very important and distinct issues here. One is age verification. The platforms ask adults who have identification to verify their age; if they cannot verify their age, they cannot access the service. Platforms have a choice within that. They can design their service so that it does not have adult content, in which case they may not need to build in verification systems—the platform polices itself. However, a platform such as Twitter, which allows adult content on an app that is open to children, has to build in those systems. As the hon. Member for Aberdeen North mentioned, people will also have to verify their identity to access a service such as OnlyFans, which is an adult-only service.
Damian Collins
On these platforms, the age verification requirements are clear: they must age-gate the adult content or get rid of it. They must do one or the other. Rightly, the Bill does not specify technologies. Technologies are available. The point is that a company must demonstrate that it is using an existing and available technology or that it has some other policy in place to remedy the issue. It has a choice, but it cannot do nothing. It cannot say that it does not have a policy on it.
Age assurance is always more difficult for children, because they do not have the same sort of ID that adults have. However, technologies exist: for instance, Yoti uses facial scanning. Companies do not have to do that either; they have to demonstrate that they do something beyond self-certification at the point of signing up. That is right. Companies may also demonstrate what they do to take robust action to close the accounts of children they have identified on their platforms.
If a company’s terms of service state that people must be 13 or over to use the platform, the company is inherently stating that the platform is not safe for someone under 13. What does it do to identify people who sign up? What does it do to identify people once they are on the platform, and what action does it then take? The Bill gives Ofcom the powers to understand those things and to force a change of behaviour and action. That is why—to the point made by the hon. Member for Pontypridd—age assurance is a slightly broader term, but companies can still extract a lot of information to determine the likely age of a child and take the appropriate action.
Paul Scully
I think we are all in agreement, and I hope that the Committee will accept the amendments.
Amendment 1 agreed to.
Amendments made: 2, in clause 11, page 10, line 25, leave out
“(for example, by using age assurance)”.
This amendment omits words which are no longer necessary in subsection (3)(b) of clause 11 because they are dealt with by the new subsection inserted by Amendment 3.
Amendment 3, in clause 11, page 10, line 26, at end insert—
“(3A) Age assurance to identify who is a child user or which age group a child user is in is an example of a measure which may be taken or used (among others) for the purpose of compliance with a duty set out in subsection (2) or (3).”—(Paul Scully.)
This amendment makes it clear that age assurance measures may be used to comply with duties in clause 11(2) as well as (3) (safety duties protecting children).
Kirsty Blackman
I beg to move amendment 99, in clause 11, page 10, line 34, leave out paragraph (d) and insert—
“(d) policies on user access to the service, parts of the service, or to particular content present on the service, including blocking users from accessing the service, parts of the service, or particular content,”.
This amendment is intended to make clear that if it is proportionate to do so, services should have policies that include blocking access to parts of a service, rather than just the entire service or particular content on the service.
Kirsty Blackman
If someone on a PlayStation wants to play online games, they must sign up to PlayStation Plus—that is how the model works. Once they pay that subscription, they can access online games and play Fortnite or Rocket League or whatever they want online. They then also have access to a suite of communication features; they can private message people. It would be disproportionate to ban somebody from playing any PlayStation game online in order to stop them from being able to private message inappropriate things. That would be a disproportionate step. I do not want PlayStation to be unable to act against somebody because it could not ban them, as that would be disproportionate, but was unable to switch off the direct messaging features because the clause does not allow it that flexibility. A person could continue to be in danger on the PlayStation platform as a result of private communications that they could receive. That is one example of how the provision would be key and important.
Paul Scully
Again, the Government recognise the intent behind amendment 99, which, as the hon. Member for Aberdeen North said, would require providers to be able to block children’s access to parts of a service, rather than the entire service. I very much get that. We recognise the nature and scale of the harm that can be caused to children through livestreaming and private messaging, as has been outlined, but the Bill already delivers what is intended by these amendments. Clause 11(4) sets out examples of areas in which providers will need to take measures, if proportionate, to meet the child safety duties. It is not an exhaustive list of every measure that a provider might be required to take. It would not be feasible or practical to list every type of measure that a provider could take to protect children from harm, because such a list could become out of date quickly as new technologies emerge, as the hon. Lady outlined with her PlayStation example.
Kirsty Blackman
I have a concern. The Minister’s phrasing was “to block children’s access”. Surely some of the issues would be around blocking adults’ access, because they are the ones causing risk to the children. From my reading of the clause, it does not suggest that the action could be taken only against child users; it could be taken against any user in order to protect children.
Paul Scully
I will come to that in a second. The hon. Member for Luton North talked about putting the onus on the victim. Any element of choice is there for adults; the children will be protected anyway, as I will outline in a second. We all agree that the primary purpose of the Bill is to be a children’s protection measure.
Ofcom will set out in codes of practice the specific steps that providers can take to protect children who are using their service, and the Government expect those to include steps relating to children’s access to high-risk features, such as livestreaming or private messaging. Clause 11(4)(d) sets out that that providers may be required to take measures in the following areas:
“policies on user access to the service or to particular content present on the service, including blocking users from accessing the service or particular content”.
The other areas listed are intentionally broad categories that allow for providers to take specific measures. For example, a measure in the area of blocking user access to particular content could include specific measures that restrict children’s access to parts of a service, if that is a proportionate way to stop users accessing that type of content. It can also apply to any of the features of a service that enable children to access particular content, and could therefore include children’s access to livestreaming and private messaging features. In addition, the child safety duties make it clear that providers need to use proportionate systems and processes that prevent children from encountering primary priority content that is harmful to them, and protect children and age groups at risk of harm from other content that is harmful to them.
While Ofcom will set out in codes of practice the steps that providers can take to meet these duties, we expect those steps, as we have heard, to include the use of age verification to prevent children accessing content that poses the greatest risk of harm to them. To meet that duty, providers may use measures that restrict children from accessing parts of the service. The Bill therefore allows Ofcom to require providers to take that step where it is proportionate. I hope that that satisfies the hon. Member for Aberdeen North, and gives her the direction that she asked for—that is, a direction to be more specific that Ofcom does indeed have the powers that she seeks.
Charlotte Nichols
The Bill states that we can expect little impact on child protection before 2027-28 because of the enforcement road map and when Ofcom is planning to set that out. Does the Minister not think that in the meantime, that sort of ministerial direction would be helpful? It could make Ofcom’s job easier, and would mean that children could be protected online before 2027-28.
Paul Scully
The ministerial direction that the various platforms are receiving from the Dispatch Box, from our conversations with them and from the Bill’s progress as it goes through the House of Lords will be helpful to them. We do not expect providers to wait until the very last minute to implement the measures. They are starting to do so now, but we want them to go them further, quicker.
Government amendment 4 will require providers who already have a minimum age requirement for access to their service, or parts of it, to give details of the measures that they use to restrict access in their terms of service and apply them consistently. Providers will also need to provide age-appropriate protections for children using their service. That includes protecting children from harmful content and activity on their service, as well as reviewing children’s use of higher-risk features, as I have said.
To meet the child safety risk assessment duties in clause 10, providers must assess: the risk of harm to children from functionalities that facilitate the presence or dissemination of harmful content; the level of risk from different kinds of harmful content, giving separate consideration to children in different age groups; the different ways in which the service is used, and the impact of such use on the level of risk of harm; and how the design and operation of the service may increase the risks identified.
The child safety duties in clause 11 apply across all areas of the service, including the way it is operated and used by children, as well as the content present on the service. For the reasons I have set out, I am not able to accept the amendments, but I hope that the hon. Member for Aberdeen North will take on board my assurances.
Kirsty Blackman
That was quite helpful. I am slightly concerned about the Minister’s focus on reducing children’s access to the service or to parts of it. I appreciate that is part of what the clause is intended to do, but I would also expect platforms to be able to reduce the ability of adults to access parts of the service or content in order to protect children. Rather than just blocking children, blocking adults from accessing some features—whether that is certain adults or adults as a group—would indeed protect children. My reading of clause 11(4) was that users could be prevented from accessing some of this stuff, rather than just child users. Although the Minister has given me more questions, I do not intend to push the amendment to a vote.
May I ask a question of you, Sir Roger? I have not spoken about clause stand part. Are we still planning to have a clause stand part debate?
Paul Scully
I beg to move amendment 4, in clause 11, page 11, line 9, at end insert—
“(6A) If a provider takes or uses a measure designed to prevent access to the whole of the service or a part of the service by children under a certain age, a duty to—
(a) include provisions in the terms of service specifying details about the operation of the measure, and
(b) apply those provisions consistently.”
This amendment requires providers to give details in their terms of service about any measures they use which prevent access to a service (or part of it) by children under a certain age, and to apply those terms consistently.
The Chair
With this it will be convenient to discuss the following:
Government amendment 5.
Amendment 100, in clause 11, page 11, line 15, after “accessible” insert “for child users.”
This amendment makes clear that the provisions of the terms of service have to be clear and accessible for child users.
Paul Scully
Although the previous version of the Bill already focused on protecting children, as I have said, the Government are clear that it must do more to achieve that and to ensure that requirements for providers are as clear as possible. That is why we are making changes to strengthen the Bill. Amendments 4 and 5 will require providers who already have a minimum age requirement for access to their service, or parts of it, to give details in their terms of services of the measures that they use to ensure that children below the minimum age are prevented access. Those terms must be applied consistently and be clear and accessible to users. The change will mean that providers can be held to account for what they say in their terms of service, and will no longer do nothing to prevent underage access.
The Government recognise the intent behind amendment 100, which is to ensure that terms of service are clear and accessible for child users, but the Bill as drafted sets an appropriate standard for terms of service. The duty in clause 11(8) sets an objective standard for terms of service to be clear and accessible, rather than requiring them to be clear for particular users. Ofcom will produce codes of practice setting out how providers can meet that duty, which may include provisions about how to tailor the terms of service to the user base where appropriate.
The amendment would have the unintended consequence of limiting to children the current accessibility requirement for terms of service. As a result, any complicated and detailed information that would not be accessible for children—for example, how the provider uses proactive technology—would probably need to be left out of the terms of service, which would clearly conflict with the duty in clause 11(7) and other duties relating to the terms of service. It is more appropriate to have an objective standard of “clear and accessible” so that the terms of service can be tailored to provide the necessary level of information and be useful to other users such as parents and guardians, who are most likely to be able to engage with the more detailed information included in the terms of service and are involved in monitoring children’s online activities.
Ofcom will set out steps that providers can take to meet the duty and will have a tough suite of enforcement powers to take action against companies that do not meet their child safety duties, including if their terms of service are not clear and accessible. For the reasons I have set out, I am not able to accept the amendment tabled by the hon. Member for Aberdeen North and I hope she will withdraw it.
Kirsty Blackman
As I said, I will also talk about clause 11. I can understand why the Government are moving their amendments. It makes sense, particularly with things like complying with the provisions. I have had concerns all the way along—particularly acute now as we are back in Committee with a slightly different Bill from the one that we were first presented with—about the reliance on terms of service. There is a major issue with choosing to go down that route, given that providers of services can choose what to put in their terms of service. They can choose to have very good terms of service that mean that they will take action on anything that is potentially an issue and that will be strong enough to allow them to take the actions they need to take to apply proportionate measures to ban users that are breaking the terms of service. Providers will have the ability to write terms of service like that, but not all providers will choose to do that. Not all providers will choose to write the gold standard terms of service that the Minister expects everybody will write.
We have to remember that these companies’ and organisations’ No. 1 aim is not to protect children. If their No. 1 aim was to protect children, we would not be here. We would not need an Online Safety Bill because they would be putting protection front and centre of every decision they make. Their No. 1 aim is to increase the number of users so that they can get more money. That is the aim. They are companies that have a duty to their shareholders. They are trying to make money. That is the intention. They will not therefore necessarily draw up the best possible terms of service.
I heard an argument on Report that market forces will mean that companies that do not have strong enough terms of service, companies that have inherent risks in their platforms, will just not be used by people. If that were true, we would not be in the current situation. Instead, the platforms that are damaging people and causing harm—4chan, KiwiFarms or any of those places that cause horrendous difficulties—would not be used by people because market forces would have intervened. That approach does not work; it does not happen that the market will regulate itself and people will stay away from places that cause them or others harm. That is not how it works. I am concerned about the reliance on terms of service and requiring companies to stick to their own terms of service. They might stick to their own terms of service, but those terms of service might be utterly rubbish and might not protect people. Companies might not have in place what we need to ensure that children and adults are protected online.
Kirsty Blackman
It is absolutely the case that those companies still have to do a risk assessment, and a child risk assessment if they meet the relevant criteria. The largest platforms, for example, will still have to do a significant amount of work on risk assessments. However, every time a Minister stands up and talks about what they are requiring platforms and companies to do, they say, “Companies must stick to their terms of service. They must ensure that they enforce things in line with their terms of service.” If a company is finding it too difficult, it will just take the tough things out of their terms of service. It will take out transphobia, it will take out abuse. Twitter does not ban anyone for abuse anyway, it seems, but it will be easier for Twitter to say, “Ofcom is going to try to hold us for account for the fact that we are not getting rid of people for abusive but not illegal messages, even though we say in our terms of service, ‘You must act with respect’, or ‘You must not abuse other users’. We will just take that out of our terms of service so that we are not held to account for the fact that we are not following our terms of service.” Then, because the abuse is not illegal—because it does not meet that bar—those places will end up being even less safe than they are right now.
For example, occasionally Twitter does act in line with its terms of service, which is quite nice: it does ban people who are behaving inappropriately, but not necessarily illegally, on its platform. However, if it is required to implement that across the board for everybody, it will be far easier for Twitter to say, “We’ve sacked all our moderators—we do not have enough people to be able to do this job—so we will just take it all out of the terms of service. The terms of service will say, ‘We will ban people for sharing illegal content, full stop.’” We will end up in a worse situation than we are currently in, so the reliance on terms of service causes me a big, big problem.
Turning to amendment 100, dealing specifically with the accessibility of this feature for child users, I appreciate the ministerial clarification, and agree that my amendment could have been better worded and potentially causes some problems. However, can the Minister talk more about the level of accessibility? I would like children to be able to see a version of the terms of service that is age-appropriate, so that they understand what is expected of them and others on the platform, and understand when and how they can make a report and how that report will be acted on. The kids who are using Discord, TikTok or YouTube are over 13—well, some of them are—so they are able to read and understand, and they want to know how to make reports and for the reporting functions to be there. One of the biggest complaints we hear from kids is that they do not know how to report things they see that are disturbing.
A requirement for children to have an understanding of how reporting functions work, particularly on social media platforms where people are interacting with each other, and of the behaviour that is expected of them, does not mean that there cannot be a more in-depth and detailed version of the terms of service, laying out potential punishments using language that children may not be able to understand. The amendment would specifically ensure that children have an understanding of that.
We want children to have a great time on the internet. There are so many ace things out there and wonderful places they can access. Lego has been in touch, for example; its website is really pretty cool. We want kids to be able to access that stuff and communicate with their friends, but we also want them to have access to features that allow them to make reports that will keep them safe. If children are making reports, then platforms will say, “Actually, there is real problem with this because we are getting loads of reports about it.” They will then be able to take action. They will be able to have proper risk assessments in place because they will be able to understand what is disturbing people and what is causing the problems.
I am glad to hear the Minister’s words. If he were even more clear about the fact that he would expect children to be able to understand and access information about keeping themselves safe on the platforms, then that would be even more helpful.
Paul Scully
On terms and conditions, it is clearly best practice to have a different level of explanation that ensures children can fully understand what they are getting into. The hon. Lady talked about the fact that children do not know how to report harm. Frankly, judging by a lot of conversations we have had in our debates, we do not know how to report harm because it is not transparent. On a number of platforms, how to do that is very opaque.
A wider aim of the Bill is to make sure that platforms have better reporting patterns. I encourage platforms to do exactly what the hon. Member for Aberdeen North says to engage children, and to engage parents. Parents are well placed to engage with reporting and it is important that we do not forget parenting in the equation of how Government and platforms are acting. I hope that is clear to the hon. Lady. We are mainly relying on terms and conditions for adults, but the Bill imposes a wider set of protections for children on the platforms.
Amendment 4 agreed to.
Amendment made: 5, in clause 11, page 11, line 15, after “(5)” insert “, (6A)”.—(Paul Scully.)
This amendment ensures that the duty in clause 11(8) to have clear and accessible terms of service applies to the terms of service mentioned in the new subsection inserted by Amendment 4.
Clause 11, as amended, ordered to stand part of the Bill.
Clause 12
Adults’ risk assessment duties
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss 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.
Paul Scully
To protect free speech and remove any possibility that the Bill could cause tech companies to censor legal content, I seek to remove the so-called “legal but harmful” duties from the Bill. These duties are currently set out in clauses 12 and 13 and apply to the largest in-scope services. They require services to undertake risk assessments for defined categories of harmful but legal content, before setting and enforcing clear terms of service for each category of content.
I share the concerns raised by Members of this House and more broadly that these provisions could have a detrimental effect on freedom of expression. It is not right that the Government define what legal content they consider harmful to adults and then require platforms to risk assess for that content. Doing so may encourage companies to remove legal speech, undermining this Government’s commitment to freedom of expression. That is why these provisions must be removed.
At the same time, I recognise the undue influence that the largest platforms have over our public discourse. These companies get to decide what we do and do not see online. They can arbitrarily remove a user’s content or ban them altogether without offering any real avenues of redress to users. On the flip side, even when companies have terms of service, these are often not enforced, as we have discussed. That was the case after the Euro 2020 final where footballers were subject to the most appalling abuse, despite most platforms clearly prohibiting that. That is why I am introducing duties to improve the transparency and accountability of platforms and to protect free speech through new clauses 3 and 4. Under these duties, category 1 platforms will only be allowed to remove or restrict access to content or ban or suspend users when this is in accordance with their terms of service or where they face another legal obligation. That protects against the arbitrary removal of content.
Companies must ensure that their terms of service are consistently enforced. If companies’ terms of service say that they will remove or restrict access to content, or will ban or suspend users in certain circumstances, they must put in place proper systems and processes to apply those terms. That will close the gap between what companies say they will do and what they do in practice. Services must ensure that their terms of service are easily understandable to users and that they operate effective reporting and redress mechanisms, enabling users to raise concerns about a company’s application of the terms of service. We will debate the substance of these changes later alongside clause 18.
Clause 55 currently defines
“content that is harmful to adults”,
including
“priority content that is harmful to adults”
for the purposes of this legislation. As this concept would be removed with the removal of the adult safety duties, this clause will also need to be removed.
Damian Collins
My hon. Friend mentioned earlier that companies will not be able to remove content if it is not part of their safety duties or if it was not a breach of their terms of service. I want to be sure that I heard that correctly and to ask whether Ofcom will be able to risk assess that process to ensure that companies are not over-removing content.
Paul Scully
Absolutely. I will come on to Ofcom in a second and respond directly to his question.
The removal of clauses 12, 13 and 55 from the Bill, if agreed by the Committee, will require a series of further amendments to remove references to the adult safety duties elsewhere in the Bill. These amendments are required to ensure that the legislation is consistent and, importantly, that platforms, Ofcom and the Secretary of State are not held to requirements relating to the adult safety duties that we intend to remove from the Bill. The amendments remove requirements on platforms and Ofcom relating to the adult safety duties. That includes references to the adult safety duties in the duties to provide content reporting and redress mechanisms and to keep records. They also remove references to content that is harmful to adults from the process for designating category 1, 2A and 2B companies. The amendments in this group relate mainly to the process for the category 2B companies.
I also seek to amend the process for designating category 1 services to ensure that they are identified based on their influence over public discourse, rather than with regard to the risk of harm posed by content that is harmful to adults. These changes will be discussed when we debate the relevant amendments alongside clause 82 and schedule 11. The amendments will remove powers that will no longer be required, such as the Secretary of State’s ability to designate priority content that is harmful to adults. As I have already indicated, we intend to remove the adult safety duties and introduce new duties on category 1 services relating to transparency, accountability and freedom of expression. While they will mostly be discussed alongside clause 18, amendments 61 to 66, 68 to 70 and 74 will add references to the transparency, accountability and freedom of expression duties to schedule 8. That will ensure that Ofcom can require providers of category 1 services to give details in their annual transparency reports about how they comply with the new duties. Those amendments define relevant content and consumer content for the purposes of the schedule.
We will discuss the proposed transparency and accountability duties that will replace the adult safety duties in more detail later in the Committee’s deliberations. For the reasons I have set out, I do not believe that the current adult safety duties with their risks to freedom of expression should be retained. I therefore urge the Committee that clauses 12, 13 and 55 do not stand part and instead recommend that the Government amendments in this group are accepted.
The Chair
Before we proceed, I emphasise that we are debating clause 13 stand part as well as the litany of Government amendments that I read out.