Thursday 22nd June 2023
(10 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)-X Tenth marshalled list for Committee - (20 Jun 2023)
Lord Knight of Weymouth (Lab)
My Lords, I am all that is left between us and hearing from the Minister with his good news, so I will constrain my comments accordingly.
The noble Baroness, Lady Kidron, begin by paying tribute to the parents of Olly, Breck, Molly, Frankie and Sophie. I very much join her in doing that; to continually have to come to this place and share their trauma and experience comes at a great emotional cost. We are all very grateful to them for doing it and for continuing to inform and motivate us in trying to do the right thing. I am grateful to my noble friend Lady Healy and in particular to the noble Baroness, Lady Newlove, for amplifying that voice and talking about the lost opportunity, to an extent, of our failure to find a way of imposing a general duty of care on the platforms, as was the original intention when the noble Baroness, Lady Morgan, was the Secretary of State.
I also pay a big tribute to the noble Baroness, Lady Kidron. She has done the whole House, the country and the world a huge service in her campaigning around this and in her influence on Governments—not just this one—on these issues. We would not be here without her tireless efforts, and it is important that we acknowledge that.
We need to ensure that coroners can access the information they need to do their job, and to have proper sanctions available to them when they are frustrated in being able to do it. This issue is not without complication, and I very much welcome the Government’s engagement in trying to find a way through it. I too look forward to the good news that has been trailed; I hope that the Minister will be able to live up to his billing. Like the noble Baroness, Lady Harding, I would love to see him embrace, at the appropriate time, the “safety by design” amendments and some others that could complete this picture. I also look forward to his answers on issues such as data preservation, which the noble Lord, Lord Allan, covered among the many other things in his typically fine speech.
I very much agree that we should have a helpline and do more about that. Some years ago, when my brother-in-law sadly died in his 30s, it fell to me to try to sort out his social media accounts. I was perplexed that the only way I could do it was by fax to these technology companies in California. That was very odd, so to have proper support for bereaved families going through their own grief at that moment seems highly appropriate.
As we have discussed in the debates on the Bill, a digital footprint is an asset that is exploited by these companies. But it is an asset that should be regarded as part of one’s estate that can be bequeathed to one’s family; then some of these issues would perhaps be lessened. On that basis, and in welcoming a really strong and moving debate, I look forward to the Minister’s comments.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, this has been a strong and moving debate, and I am grateful to the noble Baroness, Lady Kidron, for bringing forward these amendments and for the way she began it. I also echo the thanks that the noble Baroness and others have given to the families of Breck Bednar, Sophie Parkinson, Molly Russell, Olly Stephens, Frankie Thomas and all the young people whose names she rightly held in remembrance at the beginning of this debate. There are too many others who find themselves in the same position. The noble Lord, Lord Knight, is right to pay tribute to their tirelessness in campaigning, given the emotional toll that we know it has on them. I know that they have followed the sometimes arcane processes of legislation and, as my noble friend Lady Morgan said, we all look forward to the Bill becoming an Act of Parliament so that it can make a difference to families who we wish to spare from the heartache they have had.
Every death is sorrowful, but the death of a child is especially heartbreaking. The Government take the issues of access to information relating to a deceased child very seriously. We have undertaken extensive work across government and beyond to understand the problems that parents, and coroners who are required to investigate such deaths, have faced in the past in order to bring forward appropriate solutions. I am pleased to say that, as a result of that work, and thanks to the tireless campaigning of the noble Baroness, Lady Kidron, and our discussions with those who, very sadly, have first-hand experience of these problems, we will bring forward a package of measures on Report to address the issues that parents and coroners have faced. Our amendments have been devised in close consultation with the noble Baroness and bereaved families. I hope the measures will rise to the expectations they rightly have and that they will receive their support.
The package of amendments will ensure that coroners have access to the expertise and information they need to conduct their investigations, including information held by technology companies, regardless of size, and overseas services such as Wattpad, mentioned by the noble Baroness, Lady Healy of Primrose Hill, in her contribution. This includes information about how a child interacted with specific content online as well as the role of wider systems and processes, such as algorithms, in promoting it. The amendments we bring forward will also help to ensure that the process for accessing data is more straightforward and humane. The largest companies must ensure that they are transparent with parents about their options for accessing data and respond swiftly to their requests. We must ensure that companies cannot stonewall parents who have lost a child and that those parents are treated with the humanity and compassion they deserve.
I take the point that the noble Baroness, Lady Kidron, rightly makes: small does not mean safe. All platforms will be required to comply with Ofcom’s requests for information about a deceased child’s online activity. That will be backed by Ofcom’s existing enforcement powers, so that where a company refuses to provide information without a valid excuse it may be subject to enforcement action, including sanctions on senior managers. Ofcom will also be able to produce reports for coroners following a Schedule 5 request on matters relevant to an investigation or inquest. This could include information about a company’s systems and processes, including how algorithms have promoted specific content to a child. This too applies to platforms of any size and will ensure that coroners are provided with information and expertise to assist them in understanding social media.
Where this Bill cannot solve an issue, we are exploring alternative avenues for improving outcomes as well. For example, the Chief Coroner has committed to consider issuing non-legislative guidance and training for coroners about social media, with the offer of consultation with experts.
Baroness Newlove (Con)
I am sorry to interrupt my noble friend. On the coroners’ training and national guidelines, the Chief Coroner has no powers across the nation over all the coroners. How is he or she going to check that the coroners are keeping up with their training and are absolutely on the ball? The Chief Coroner has no powers across the country and everything happens in London; we are talking about outside London. How can we know that no other family has to suffer, considering that we have this legislation?
Lord Parkinson of Whitley Bay (Con)
My noble friend rightly pulled me up for not responding to her letter as speedily as we have been dealing with the questions raised by the noble Baroness, Lady Kidron. We have had some useful meetings with Ministers at the Ministry of Justice, which the noble Baroness has attended. I would be very happy to provide some detail on this to my noble friend—I am conscious of her experience as Victims’ Commissioner—either in writing or to organise a briefing if she would welcome that.
The noble Lord, Lord Allan of Hallam, rightly raised data protection. Where Ofcom and companies are required to respond to coroners’ requests for information, they are already required to comply with personal data protection legislation, which protects the privacy of other users. This may include the redaction of information that would identify other users. We are also exploring whether guidance from the Information Commissioner's Office could support technology companies to understand how data protection law applies in such cases.
The noble Lord mentioned the challenges of potential conflicts of law around the world. Where there is a conflict of laws—for example, due to data protection laws in other jurisdictions—Ofcom will need to consider the best way forward on a case-by-case basis. For example, it may request alternative information which could be disclosed, and which would provide insight into a particular issue. We will seek to engage our American counterparts to understand any potential and unintended barriers created by the US Stored Communications Act. I can reassure the noble Lord that these matters are in our mind.
We are also aware of the importance of data preservation to both coroners and bereaved parents. The Government agree with the principle of ensuring that these are preserved. We will be working towards solving this in the Data Protection and Digital Information Bill. In addition, we will explore whether there are further options to improve outcomes for parents in that Bill as well. I want to assure noble Lords and the families watching this debate closely that we will do all we can to deliver the necessary changes to give coroners and parents the information that they seek and to ensure a more straightforward and humane process in the future.
I turn in detail to the amendments the noble Baroness, Lady Kidron, brought forward. First, Amendments 215 and 216 include new requirements on Ofcom, seeking to ensure that coroners and parents can obtain data from social media companies after the death of a child. Amendment 215 would give Ofcom the ability to impose senior management liability on an individual in cases where a coroner has issued a notice requiring evidence to be provided in an inquest into the death of a child. Amendment 216 would put Ofcom’s powers at the disposal of a coroner or close relatives of a deceased child so that Ofcom would be obliged to require information from platforms or other persons about the social media activity of a deceased child. It also requires service providers to provide a point of contact. Amendments 198 and 199 are consequential to this.
As I said, we agree with the intent of the noble Baroness’s amendments and we will deal with it in the package that we will bring forward before Report. Our changes to the Bill will seek to ensure that Ofcom has the powers it needs to support coroners and their equivalents in Scotland, so that they have access to the information they need to conduct investigations into a child’s death where social media may have played a part.
“Amendment of Criminal Justice and Police Act 2001
(1) The Criminal Justice and Police Act 2001 is amended as follows.(2) In section 57(1) (retention of seized items), after paragraph (t) insert—“(u) paragraph 8 of Schedule 12 to the Online Safety Act 2023.”(3) In section 65 (meaning of “legal privilege”)—(a) after subsection (8B) insert—“(8C) An item which is, or is comprised in, property which has been seized in exercise or purported exercise of the power of seizure conferred by paragraph 7(f), (j) or (k) of Schedule 12 to the Online Safety Act 2023 is to be taken for the purposes of this Part to be an item subject to legal privilege if, and only if, the seizure of that item was in contravention of paragraph 17(3) of that Schedule (privileged information or documents).”;(b) in subsection (9)—(i) at the end of paragraph (d) omit “or”;(ii) at the end of paragraph (e) insert “or”;(iii) before the closing words insert—“(g) paragraph 7(f), (j) or (k) of Schedule 12 to the Online Safety Act 2023.”(4) In Part 1 of Schedule 1 (powers of seizure to which section 50 of the Act applies), after paragraph 73U insert—“Online Safety Act 202373V Each of the powers of seizure conferred by paragraph 7(f), (j) and (k) of Schedule 12 to the Online Safety Act 2023.””Member’s explanatory statement
This amendment has the effect of providing that section 50 of the Criminal Justice and Police Act 2001 (additional powers of seizure from premises) applies to the powers of seizure under paragraph 7(f), (j) and (k) of Schedule 12 to the Bill; and makes related amendments to that Act.
Member’s explanatory statement
This amendment makes it clear that the requirement in clause 110(7) regarding which content is communicated publicly is relevant to user-to-user services and may apply in both the cases mentioned in clause 110(2)(a)(i) and (ii).
Baroness Merron (Lab)
My Lords, I am grateful to the noble Lords, Lord Bethell, Lord Curry and Lord Allan for introducing their amendments, to the noble Baroness, Lady Morgan, for her direct question, and to the noble Baroness, Lady Kidron, for her equally direct question. I am sure they will be of great assistance to the Minister when he replies. I will highlight the words of the noble Lord, Lord Allan, who said “We are looking for services to succeed”. I think that is right, but what is success? It includes compliance and enforcement, and that is what this group refers to.
The amendments introduced by the noble Lord, Lord Bethell, seek to strengthen what is already in the Bill about Ofcom’s Chapter 6 powers of enforcement, otherwise known as business disruption powers, and they focus on what happens in the event of a breach; they seek to be more prescriptive than what we already have. I am sure the Minister will remember that the same issue came up in the Digital Economy Bill, around the suggestion that the Government should take specific powers. There, the Government argued they had assurances from credit card companies that, if and when action was required, they would co-operate. In light of that previous discussion, it will be interesting to hear what the Minister has to say.
In respect of the amendments introduced by the noble Lord, Lord Curry, on the need to toughen up requirements on Ofcom to act, I am sure the Minister will say that these powers are not required and that the Bill already makes provision for Ofcom blocking services which are failing in their duties. I echo the concern of the noble Lord, Lord Clement-Jones, about being overly prescriptive and not allowing Ofcom to do its job. The truth is that Ofcom may need discretion but it also needs teeth, and I will be interested to hear what the Minister has to say about whether he feels, in the light of the debate today and other conversations, that there is sufficient toughness in the Bill and that Ofcom will be able to do the job it is required to do. There is an issue of the balance of discretion versus requirement, and I know he will refer to this. I will also be interested to hear from the Minister about the view of Ofcom with respect to what is in the Bill, and whether it feels that it has sufficient powers.
I will raise a final point about the amendments in the name of the noble Lord, Lord Curry. I think they ask a valid question about the level of discretion that Ofcom will have. I ask the Minister this: if, a few years down the line, we find that Ofcom has not used the powers suitably, despite clear failures, what would the Government seek to do? With that, I look forward to hearing from the Minister.
Lord Parkinson of Whitley Bay (Con)
My Lords, where necessary, the regulator will be able to apply to the courts for business disruption measures. These are court orders which will require third-party ancillary services and access facilities to withdraw their services from, or impede users’ access to, non-compliant regulated services. These are strong, flexible powers which will ensure that Ofcom can take robust action to protect users. At the same time, we have ensured that due process is followed. An application for a court order will have to specify the non-compliant provider, the grounds and evidence on which the application is based and the steps that third parties must take to withdraw services or block users’ access. Courts will consider whether business disruption measures are an appropriate way of preventing harm to users and, if an order is granted, ensure it is proportionate to the risk of harm. The court will also consider the interests of all relevant parties, which may include factors such as contractual terms, technical feasibility and the costs of the measures. These powers will ensure that services can be held to account for failure to comply with their duties under the Bill, while ensuring that Ofcom’s approach to enforcement is proportionate and upholds due process.
Lord Allan of Hallam (LD)
I am reminded by my noble friend Lord Foster of Bath, particularly relating to the gambling sector, that some of these issues may run across various regulators that are all seeking business disruption. He reminded me that if you type into a search engine, which would be regulated and subject to business disruption measures here, “Casinos not regulated by GAMSTOP”, you will get a bunch of people who are evading GAMSTOP’s regulation. Noble Lords can imagine similar for financial services—something that I know the noble Baroness, Lady Morgan of Cotes, is also very interested in. It may not be for answer now, but I would be interested to understand what thinking the Government have on how all the different business disruption regimes—financial, gambling, Ofcom-regulated search services, et cetera—will all mesh together. They could all come before the courts under slightly different legal regimes.
Lord Parkinson of Whitley Bay (Con)
When I saw the noble Lord, Lord Foster of Bath, and the noble Baroness, Lady Armstrong of Hill Top, in their places, I wondered whether they were intending to raise these points. I will certainly take on board what the noble Lord says and, if there is further information I can furnish your Lordships with, I certainly will.
The noble Baroness, Lady Kidron, asked whether the powers can be used on out-of-scope services. “No” is the direct answer to her direct question. The powers can be used only in relation to regulated services, but if sites not regulated by the Bill are publishing illegal content, existing law enforcement powers—such as those frequently deployed in cases of copyright infringement—can be used. I could set out a bit more in writing if that would be helpful.
My noble friend Lord Bethell’s amendments seek to set out in the Bill that Ofcom will be able to make a single application to the courts for an order enabling business disruption measures that apply against multiple platforms and operators. I must repeat, as he anticipated, the point made by my right honourable friend Chris Philp that the civil procedure rules allow for a multi-party claim to be made. These rules permit any number of claimants or defendants and any number of claims to be covered by one claim form. The overriding objective of the civil procedure rules is that cases are dealt with justly and proportionately. I want to reassure my noble friend that the Government are confident that the civil procedure rules will provide the necessary flexibility to ensure that services can be blocked or restricted.
The amendment in the name of the noble Lord, Lord Allan of Hallam, seeks to clarify what services might be subject to access restriction orders by removing the two examples provided in the Bill: internet access services and application stores. I would like to reassure him that these are simply indicative examples, highlighting two kinds of service on which access restriction requirements may be imposed. It is not an exhaustive list. Orders could be imposed on any services that meet the definition—that is, a person who provides a facility that is able to withdraw, adapt or manipulate it in such a way as to impede access to the regulated service in question. This provides Ofcom with the flexibility to identify where business disruption measures should be targeted, and it future-proofs the Bill by ensuring that the power remains functional and effective as technologies develop.
As the noble Lord highlighted, these are significant powers that can require that services be blocked in the UK. Clearly, limiting access to services in this way substantially affects the business interests of the service in question and the interests of the relevant third-party service, and it could affect users’ freedom of expression. It is therefore essential that appropriate safeguards are included and that due process is followed. That is why Ofcom will be required to seek a court order to be able to use these powers, ensuring that the courts have proper oversight.
To ensure that due process is upheld, an application by the regulator for a court order will have to specify the non-compliant provider, the grounds of the order and the steps that Ofcom considers should be imposed on the third parties in order to withdraw services and block users’ access. These requirements will ensure that the need to act quickly to tackle harm is appropriately balanced against upholding fundamental rights.
It might be useful to say a little about how blocking works—
Lord Clement-Jones (LD)
Before the Minister does that, can he say whether he envisages that operating against VPNs as well?
Lord Parkinson of Whitley Bay (Con)
If I may, I will take advice on that and write to the noble Lord.
Lord Parkinson of Whitley Bay (Con)
Yes; he made a helpful point, and I will come back on it.
Lord Allan of Hallam (LD)
We share a common interest in understanding whether it would be used against VPNs, but we may not necessarily have the same view about whether it should be. Do not take that as an encouragement—take it as a request for information.
Lord Parkinson of Whitley Bay (Con)
I thank the noble Lord.
The term “blocking” is used to describe measures that will significantly impede or restrict access to non-compliant services—for example, internet service providers blocking websites or app stores blocking certain applications. These measures will be used only in exceptional circumstances, where the service has committed serious failures in meeting its duties and where no other action would reasonably prevent online harm to users in the UK.
My noble friend Lord Bethell’s Amendments 218F and 218L seek to ensure that Ofcom can request that an interim service or access restriction order endures for a period of six months in cases where a service hosts pornographic content. I reassure him that the court will already be able to make an order which can last up to six months. Indeed, the court’s interim order can have effect until either the date on which the court makes a service or access restriction order, or an expiry date specified by the court in the order. It is important that sanctions be determined on a case-by-case basis, which is why no limitations are set for these measures in the Bill.
As my noble friend knows, in the Bill there are clear duties on providers to ensure that children are not able to access pornography, which Ofcom will have a robust set of powers to enforce. It is important, however, that Ofcom’s powers and its approach to enforcement apply equally and consistently across the range of harms in scope of the Bill, rather than singling out one form of content in particular.
I hope that that is useful to noble Lords, along with the commitment to write on the further points which were raised. With that, I urge my noble friend to withdraw his amendment.
Lord Bethell (Con)
My Lords, to be honest, this debate has been an incredible relief to me. Here we have been taking a step away from some of the high-level conversations we had about what we mean by the internet and safety, looking at the far horizon, and instead looking at the moment when the Bill has real traction to try to change behaviours and improve the environment of the internet. I am extremely grateful to the Minister for his fulsome reply on a number of the issues.
The reason why it is so important is the two big areas where enforcement and compliance are going to be really tricky. First, there is Ofcom’s new relationship with the really big behemoths of the internet. It has a long tradition of partnership with big companies such as ITV, the radio sector—with the licensed authorities. However, of course it has licences, and it can pull them. I have worked for some of those companies, and it is quite a thing to go to see your regulator when you know that it can pull your licence. Obviously, that is within legal reason, but at the end of the day it owns your licence, and that is different to having a conversation where it does not.
The second class is the Wild West: the people living in open breach of regular societal norms who care not for the intentions of either the regulator, the Government or even mainstream society. Bringing those people back into reasonable behaviour will be a hell of a thing. My noble friend Lord Grade spoke, reasonably but with a degree of trepidation, about the challenge faced by Ofcom there. I am extremely grateful to the Minister for addressing those points.
Ofcom will step up to having a place next to the FCA and the MHRA. The noble Lord, Lord Curry, spoke about some of the qualities needed of one of the big three regulators. Having had some ministerial oversight of the MHRA, I can tell your Lordships that it has absolutely no hesitation about tackling big pharmaceutical companies and is very quick, decisive and clear. It wields a big stick—or, to use the phrase of the noble Baroness, Lady Merron, big teeth—in order to conduct that. That is why I ask the Minister just to keep in mind some of the recommendations embedded in these amendments.
The noble Baroness, Lady Kidron, mentioned illegal content, and I appreciate the candour of the Minister’s reply. However, business disruption measures offer an opportunity to address the challenge of illegal content, which is something that I know the Secretary of State has spoken about very interestingly, in terms of perhaps commissioning some kind of review. If such a thing were to happen, I ask that business disruption measures and some way of employing them might be brought into that.
We should look again at enforcement and compliance. I appreciate the Minister saying that it is important to let the regulator make some of these decisions, but the noble Lord, Lord Allan, was right: the regulator needs to know what the Government’s intentions are. I feel that we have opened the book on this, but there is still a lot more to be said about where the Government see the impact of regulation and compliance ending up. In all the battles in other jurisdictions—France, Germany, the EU, Canada, Louisiana and Utah—it all comes down to enforcement and compliance. We need to know more of what the Government hope to achieve in that area. With that, I beg leave to withdraw my amendment.
“Confirmation decisions: offence
(1) A person to whom a confirmation decision is given commits an offence if, without reasonable excuse, the person fails to comply with a requirement imposed by the decision which—(a) is of a kind described in section 121(1), and(b) relates (whether or not exclusively) to a children’s online safety duty.(2) A “children’s online safety duty” means a duty set out in—(a) section 11(3)(a),(b) section 11(3)(b),(c) section 72(2), or(d) section 72(3).(3) A person who commits an offence under this section is liable—(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);(b) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both);(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both).”Member’s explanatory statement
This amendment creates a new offence of failure to comply with requirements of a confirmation decision that relate to specified duties to protect children’s online safety.