Thursday 25th May 2023
(11 months, 1 week ago)
Lords ChamberOnline Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Watch Debate Amendment Paper: HL Bill 87(Rev)-IX(a) Amendments for Committee (Supplementary to the Ninth Marshalled List) - (24 May 2023)
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, this has been a grim but important debate to open the Committee’s proceedings today. As my noble friend Lady Harding of Winscombe and others have set out, some of the issues and materials about which we are talking are abhorrent indeed. I join other noble Lords in thanking my noble friend Lord Harlech for his vigilance and consideration for those who are watching our proceedings today, to allow us to talk about them in the way that we must in order to tackle them, but to ensure that we do so sensitively. I thank noble Lords for the way they have done that.
I pay tribute also to those who work in this dark corner of the internet to tackle these harms. I am pleased to reassure noble Lords that the Bill has been designed in a way that responds to emerging and new technologies that may pose a risk of harm. In our previous debates, we have touched on explicitly naming certain technologies and user groups or making aspects of the legislation more specific. However, one key reason why the Government have been resistant to such specificity is to ensure that the legislation remains flexible and future-proofed.
The Bill has been designed to be technology-neutral in order to capture new services that may arise in this rapidly evolving sector. It confers duties on any service that enables users to interact with each other, as well as search services, meaning that any new internet service that enables user interaction will be caught by it.
Amendment 125, tabled by the noble Baroness, Lady Kidron—whose watchful eye I certainly feel on me even as she takes a rare but well-earned break today—seeks to ensure that machine-generated content, virtual reality content and augmented reality content are regulated content under the Bill. I am happy to confirm to her and to my noble friend Lady Harding who moved the amendment on her behalf that the Bill is designed to regulate providers of user-to-user services, regardless of the specific technologies they use to deliver their service, including virtual reality and augmented reality content. This is because any service that allows its users to encounter content generated, uploaded or shared by other users is in scope unless exempt. “Content” is defined very broadly in Clause 207(1) as
“anything communicated by means of an internet service”.
This includes virtual or augmented reality. The Bill’s duties therefore cover all user-generated content present on the service, regardless of the form this content takes, including virtual reality and augmented reality content. To state it plainly: platforms that allow such content—for example, the metaverse—are firmly in scope of the Bill.
The Bill also ensures that machine-generated content on user-to-user services created by automated tools or machine bots will be regulated by the Bill where appropriate. Specifically, Clause 49(4)(b) means that machine-generated content is regulated unless the bot or automated tool producing the content is controlled by the provider of the service. This approach ensures that the Bill covers scenarios such as malicious bots on a social media platform abusing users, or when users share content produced by new tools, such as ChatGPT, while excluding functions such as customer service chatbots which are low risk. Content generated by an artificial intelligence bot and then placed by a user on a regulated service will be regulated by the Bill. Content generated by an AI bot which interacts with user-generated content, such as bots on Twitter, will be regulated by the Bill. A bot that is controlled by the service provider, such as a customer service chatbot, is out of scope; as I have said, that is low risk and regulation would therefore be disproportionate. Search services using AI-powered features will be in scope of the search duties.
The Government recognise the need to act both to unlock the opportunities and to address the potential risks of this technology. Our AI regulation White Paper sets out the principles for the responsible development of AI in the UK. These principles, such as safety and accountability, are at the heart of our approach to ensuring the responsible development and use of artificial intelligence. We are creating a horizon-scanning function and a central risk function which will enable the Government to monitor future risks.
The Bill does not distinguish between the format of content present on a service. Any service that allows its users to encounter content generated, uploaded or shared by other users is in scope unless exempt, regardless of the format of that content. This includes virtual and augmented reality material. Platforms that allow such content, such as the metaverse, are firmly in scope of the Bill and must take the required steps to protect their users from harm. I hope that gives the clarity that my noble friend and others were seeking and reassurance that the intent of Amendment 125 is satisfied.
The Bill will require companies to take proactive steps to tackle all forms of online child sexual abuse, including grooming, live streaming, child sexual abuse material and prohibited images of children. If AI-generated content amounts to a child’s sexual exploitation or abuse offence in the Bill, it will be subject to the illegal content duties. Regulated providers will need to take steps to remove this content. We will shortly bring forward, and have the opportunity to debate in Committee, a government amendment to address concerns relating to the sending of intimate images. This will cover the non-consensual sharing of manufactured images—more commonly known as deepfakes. The possession and distribution of altered images that appear to be indecent photographs of children is ready covered by the indecent images of children offences, which are very serious offences with robust punishment in law.
Lord Allan of Hallam (LD)
Will the review also cover an understanding of what has been happening in criminal cases where, in some of the examples that have been described, people have tried to take online activity to court? We will at that point understand whether the judges believe that existing offences cover some of these novel forms of activity. I hope the review will also extend not just to what Ofcom does as a regulator but to understand what the courts are doing in terms of the definitions of criminal activity and whether they are being effective in the new online spaces.
Lord Parkinson of Whitley Bay (Con)
I believe it will. Certainly, both government and Parliament will take into account judgments in the court on this Bill and in related areas of law, and will, I am sure, want to respond.
Baroness Berridge (Con)
It is not just the judgments of the courts; it is about how the criminal law as a very basic point has been framed. I invite my noble friend the Minister to please meet with the Dawes Centre, because it is about future crime. We could end up with a situation in which more and more violence, particularly against women and girls, is being committed in this space, and although it may be that the Bill has made it regulated, it may not fall within the province of the criminal law. That would be a very difficult situation for our law to end up in. Can my noble friend the Minister please meet with the Dawes Centre to talk about that point?
Lord Parkinson of Whitley Bay (Con)
I am happy to reassure my noble friend that the director of the Dawes Centre for Future Crime sits on the Home Office’s Science Advisory Council, whose work is very usefully fed into the work being done at the Home Office. Colleagues at the Ministry of Justice keep criminal law under constant review, in light of research by such bodies and what we see in the courts and society. I hope that reassures my noble friend that the points she raised, which are covered by organisations such as the Dawes Centre, are very much in the mind of government.
The noble Lord, Lord Allan of Hallam, explained very effectively the nuances of how behaviour translates to the virtual world. He is right that we will need to keep both offences and the framework under review. My noble friend Lady Berridge asked a good and clear question, to which I am afraid I do not have a similarly concise answer. I can reassure her that generated child sexual abuse and exploitation material is certainly illegal, but she asked about sexual harassment via a haptic suit; that would depend on the specific circumstances. I hope she will allow me to respond in writing, at greater length and more helpfully, to the very good question she asked.
Under Clause 56, Ofcom will also be required to undertake periodic reviews into the incidence and severity of content that is harmful to children on the in-scope services, and to recommend to the Secretary of State any appropriate changes to regulations based on its findings. Clause 141 also requires Ofcom to carry out research into users’ experiences of regulated services, which will likely include experiences of services such as the metaverse and other online spaces that allow user interaction. Under Clause 147, Ofcom may also publish reports on other online safety matters.
The questions posed by the noble Lord, Lord Russell of Liverpool, about international engagement are best addressed in a group covering regulatory co-operation, which I hope we will reach later today. I can tell him that we have introduced a new information-sharing gateway for the purpose of sharing information with overseas regulators, to ensure that Ofcom can collaborate effectively with its international counterparts. That builds on existing arrangements for sharing information that underpin Ofcom’s existing regulatory regimes.
The amendments tabled by the noble Lord, Lord Knight of Weymouth, relate to providers’ judgments about when content produced by bots is illegal content, or a fraudulent advertisement, under the Bill. Clause 170 sets out that providers will need to take into account all reasonably available relevant information about content when making a judgment about its illegality. As we discussed in the group about illegal content, providers will need to treat content as illegal when this information gives reasonable grounds for inferring that an offence was committed. Content produced by bots is in scope of providers’ duties under the Bill. This includes the illegal content duties, and the same principles for assessing illegal content will apply to bot-produced content. Rather than drawing inferences about the conduct and intent of the user who generated the content, the Bill specifies that providers should consider the conduct and the intent of the person who can be assumed to have controlled the bot at the point it created the content in question.
The noble Lord’s amendment would set out that providers could make judgments about whether bot-produced content is illegal, either by reference to the conduct or mental state of the person who owns the bot or, alternatively, by reference to the person who controls it. As he set out in his explanatory statement and outlined in his speech, I understand he has brought this forward because he is concerned that providers will sometimes not be able to identify the controller of a bot, and that this will impede providers’ duties to take action against illegal content produced by them. Even when the provider does not know the identity of the person controlling the bot, however, in many cases there will still be evidence from which providers can draw inferences about the conduct and intent of that person, so we are satisfied that the current drafting of the Bill ensures that providers will be able to make a judgment on illegality.
Lord Knight of Weymouth (Lab)
My concern is also whether or not the bot is out of control. Can the Minister clarify that issue?
Lord Parkinson of Whitley Bay (Con)
It depends on what the noble Lord means by “out of control” and what content the bot is producing. If he does not mind, this may be an issue which we should go through in technical detail and have a more free-flowing conservation with examples that we can work through.
Baroness Finlay of Llandaff (CB)
This is a very interesting discussion; the noble Lord, Lord Knight, has hit on something really important. When somebody does an activity that we believe is criminal, we can interrogate them and ask how they came to do it and got to the conclusion that they did. The difficulty is that those of us who are not super-techy do not understand how you can interrogate a bot or an AI which appears to be out of control on how it got to the conclusion that it did. It may be drawing from lots of different places and there may be ownership of lots of different sources of information. I wonder whether that is why we are finding how this will be monitored in future so concerning. I am reassured that the noble Lord, Lord Knight of Weymouth, is nodding; does the Minister concur that this may be a looming problem for us?
Lord Parkinson of Whitley Bay (Con)
I certainly concur that we should discuss the issue in greater detail. I am very happy to do so with the noble Lord, the noble Baroness and others who want to do so, along with officials. If we can bring some worked examples of what “in control” and “out of control” bots may be, that would be helpful.
I hope the points I have set out in relation to the other issues raised in this group and the amendments before us are satisfactory to noble Lords and that they will at this point be content not to press their amendments.
Baroness Harding of Winscombe (Con)
My Lords, I thank all noble Lords who have contributed to a thought-provoking and, I suspect, longer debate than we had anticipated. At Second Reading, I think we were all taken aback when this issue was opened up by my noble friend Lord Sarfraz; once again, we are realising that this requires really careful thought. I thank my noble friend the Minister for his also quite long and thoughtful response to this debate.
I feel that I owe the Committee a small apology. I am very conscious that I talked in quite graphic detail at the beginning when there were still children in the Gallery. I hope that I did not cause any harm, but it shows how serious this is that we have all had to think so carefully about what we have been saying—only in words, without any images. We should not underestimate how much this has demonstrated the importance of our debates.
On the comments of the noble Baroness, Lady Fox, I am a huge enthusiast, like the noble Lord, Lord Knight, for the wonders of the tech world and what it can bring. We are managing the balance in this Bill to make sure that this country can continue to benefit from and lead the opportunities of tech while recognising its real and genuine harms. I suggest that today’s debate has demonstrated the potential harm that the digital world can bring.
I listened carefully—as I am certain the noble Baroness, Lady Kidron, has been doing in the digital world—to my noble friend’s words. I am encouraged by what he has put on the record on Amendment 125, but there are some specific issues that it would be helpful for us to talk about, as he alluded to, after this debate and before Report. Let me highlight a couple of those.
First, I do not really understand the technical difference between a customer service bot and other bots. I am slightly worried that we are defining in the specific one type of bot that would not be captured by this Bill. I suspect that there might be others in future. We must think carefully through whether we are getting too much into the specifics of the technology and not general enough in making sure we capture where it could go. That is one example.
Secondly, as my noble friend Lady Berridge would say, I am not sure that we have got to the bottom of whether this Bill, coupled with the existing body of criminal law, will really enable law enforcement officers to progress the cases as they see fit and protect vulnerable women—and men—in the digital world. I very much hope we can extend the conversation there. We perhaps risk getting too close to the technical specifics if we are thinking about whether a haptic suit is in or out of scope of the Bill; I am certain that there will be other technologies that we have not even thought about yet that we will want to make sure that the Bill can capture.
I very much welcome the spirit in which this debate has been held. When I said that I would do this for the noble Baroness, Lady Kidron, I did not realise quite what a huge debate we were opening up, but I thank everyone who has contributed and beg leave to withdraw the amendment.
(iii) is not a sanctioned entity (see subsection (3A)).”Member’s explanatory statement
The effect of this amendment, combined with the next amendment in the Minister’s name, is that any entity which is designated for the purposes of sanctions regulations is not a “recognised news publisher” under this Bill, with the result that the Bill’s protections which relate to “news publisher content” don’t apply.
“(3A) A “sanctioned entity” is an entity which—(a) is designated by name under a power contained in regulations under section 1 of the Sanctions and Anti-Money Laundering Act 2018 that authorises the Secretary of State or the Treasury to designate persons for the purposes of the regulations or of any provisions of the regulations, or (b) is a designated person under any provision included in such regulations by virtue of section 13 of that Act (persons named by or under UN Security Council Resolutions).”Member’s explanatory statement
The effect of this amendment, combined with the preceding amendment in the Minister’s name, is that any entity which is designated for the purposes of sanctions regulations is not a “recognised news publisher” under this Bill, with the result that the Bill’s protections which relate to “news publisher content” don’t apply.
Member’s explanatory statement
This amendment and the next amendment in the Minister’s name ensure that restrictions on a user’s access to content resulting from the user voluntarily activating any feature of a service do not count as restrictions on users’ access for the purposes of Part 3 of the Bill.