Online Safety Bill

Report stage
Monday 10th July 2023 Lords Chamber

Report (2nd Day) (Continued)

21:01

Amendment 84

Moved by

[Lord Parkinson of Whitley Bay]

84: Clause 19, page 24, line 4, at end insert “, and (Disclosure of information about use of service by deceased child users) (deceased child users).”
Member’s explanatory statement
This amendment has the effect that OFCOM have a duty to review compliance by user-to- user service providers with the new duties imposed by the Clause proposed after Clause 67 in my name.

[The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)]

My Lords, as I set out in Committee, the Government are bringing forward a package of amendments to address the challenges that bereaved parents and coroners have faced when seeking to access data after the death of a child.

These amendments have been developed after consultation with those who, so sadly, have first-hand experience of these challenges. I thank in particular the families of Breck Bednar, Sophie Parkinson, Molly Russell, Olly Stephens and Frankie Thomas for raising awareness of the challenges they have faced when seeking access to information following the heartbreaking cases involving their children. I am also grateful to the noble Baroness, Lady Kidron, for championing this issue in Parliament and more widely. I am very happy to say that she is supporting the government amendments in this group.

The loss of any life is heartbreaking, but especially so when it involves a child. These amendments will create a more straightforward and humane process for accessing data and will help to ensure that parents and coroners receive the answers they need in cases where a child’s death may be related to online harms. We know that coroners have faced challenges in accessing relevant data from online service providers, including information about a specific child’s online activity, where that might be relevant to an investigation or inquest. It is important that coroners can access such information.

As such, I turn first to Amendments 246, 247, 249, 250, 282, 283 and 287, which give Ofcom an express power to require information from regulated services about a deceased child’s online activity following a request from a coroner. This includes the content the child had viewed or with which he or she had engaged, how the content came to be encountered by the child, the role that algorithms and other functionalities played, and the method of interaction. It also covers any content that the child generated, uploaded or shared on the service.

Crucially, this power is backed up by Ofcom’s existing enforcement powers, so that, where a company refuses to provide information requested by Ofcom, companies may be subject to enforcement action, including senior management liability. To ensure that there are no barriers to Ofcom sharing information with coroners, first, Amendment 254 enables Ofcom to share information with a coroner without the prior consent of a business to disclose such information. This will ensure that Ofcom is free to provide information it collects under its existing online safety functions to coroners, as well as information requested specifically on behalf of a coroner, where that might be useful in determining whether social media played a part in a child’s death.

Secondly, coroners must have access to online safety expertise, given the technical and fast-moving nature of the industry. As such, Amendment 273 gives Ofcom a power to produce a report dealing with matters relevant to an investigation or inquest, following a request from a coroner. This may include, for example, information about a company’s systems and processes, including how algorithms have promoted specific content to a child. To this end, the Chief Coroner’s office will consider issuing non-statutory guidance and training for coroners about social media as appropriate, subject to the prioritisation of resources. We are confident that this well-established framework provides an effective means to provide coroners with training on online safety issues.

It is also important that we address the lack of transparency from large social media services about their approach to data disclosure. Currently, there is no common approach to this issue, with some services offering memorialisation or contact-nomination processes, while others seemingly lack any formal policy. To tackle this, a number of amendments in this group will require the largest services—category 1, 2A and 2B services—to set out policies relating to the disclosure of data regarding the online activities of a deceased child in a clear, accessible and sufficiently detailed format in their terms of service. These companies will also be required to provide a written response to data requests in a timely manner and must provide a dedicated helpline, or similar means, for parents to communicate with the company, in order to streamline the process. This will address the painful radio silence experienced by many bereaved parents. The companies must also offer options so that parents can complain when they consider that a platform is not meeting its obligations. These must be easy to access, easy to use and transparent.

The package of amendments will apply not only to coroners in England and Wales but also to Northern Ireland and equivalent investigations in Scotland, where similar sad events have occurred.

The Government will also address other barriers which are beyond the scope of this Bill. For example, we will explore measures to introduce data rights for bereaved parents who wish to request information about their deceased children through the Data Protection and Digital Information Bill. We are also working, as I said in Committee, with our American counterparts to clarify and, where necessary, address unintended barriers to information sharing created by the United States Stored Communications Act. I beg to move.

[Baroness Kidron (CB)]

My Lords, I thank the Minister and indeed the Secretary of State for bringing forward these amendments in the fulsome manner that they have. I appreciate it, but I know that Bereaved Families for Online Safety also appreciates it. The Government committed to bringing forward these amendments on the last day in Committee, so they have been pre-emptively welcomed and discussed at some length. One need only read through Hansard of 22 June to understand the strength of feeling about the pain that has been caused to families and the urgent need to prevent others experiencing the horror faced by families already dealing with the loss of their child.

I will speak briefly on three matters only. First, I must once again thank bereaved families and colleagues in this House and in the other place for their tireless work in pressing this issue. This is one of those issues that does not allow for celebration. As I walked from the Chamber on 22 June, I asked one of the parents how they felt. They said: “It is too late for me”. It was not said in bitterness but in acknowledgement of their profound hurt and the failure of companies voluntarily to do what is obvious, moral and humane. I ask the Government to see the sense in the other amendments that noble Lords brought forward on Report to make children safer, and make the same, pragmatic, thoughtful solution to those as they have done on this group of amendments. It makes a huge difference.

Secondly, I need to highlight just one gap; I have written to the Secretary of State and the Minister on this. I find it disappointing that the Government did not find a way to require senior management to attend an inquest to give evidence. Given that the Government have agreed that senior managers should be subject to criminal liability under some circumstances, I do not understand their objections to summoning them to co-operate with legal proceedings. If a company submits information in response to Ofcom and at the coroner’s request the company’s senior management is invited to attend the inquest, it makes sense that someone should be required to appear to answer and follow up those questions. Again, on behalf of the bereaved families and specifically their legal representatives, who are very clear on the importance of this part of the regime, I ask the Government to reconsider this point and ask the Minister to undertake to speak to the department and the MoJ, if necessary, to make sure that, if senior managers are asked to attend court, they are mandated to do so.

Thirdly, I will touch on the additional commitments the Minister made beyond the Bill, the first of which is the upcoming Data Protection and Digital Information Bill. I am glad to report that some of the officials working on the Bill have already reached out, so I am grateful to the Minister that this is in train, but I expect it to include guidance for companies that will, at a minimum, cover data preservation orders and guidance about the privacy of other users in cases where a child has died. I think that privacy for other users is central to this being a good outcome for everybody, and I hope we are able to include that.

I am pleased to hear about the undertaking with the US regarding potential barriers, and I believe—and I would love to hear from the Minister—that the objective is to make a bilateral agreement that would allow data to be shared between the two countries in the case of a child’s death. It is very specific requirement, not a wide-ranging one. I believe, if we can do it on a bilateral basis, it would be easier than a broad attempt to change the data storage Act.

I turn finally to training for coroners. I was delighted that the Chief Coroner made a commitment to consider issuing non-legislative guidance and training on social media for coroners and the offer of consultation with experts, including Ofcom, the ICO and bereaved families and their representatives, but this commitment was made subject to funding. I ask the Minister to agree to discuss routes to funding from the levy via Ofcom’s digital literacy duty. I have proposed an amendment to the government amendment that would make that happen, but I would welcome the opportunity to discuss it with the Minister. Coroners must feel confident in their understanding of the digital world, and I am concerned that giving this new route to regulated companies via Ofcom without giving them training on how to use it may create a spectre of failure or further frustration and distress for bereaved families. I know there is not a person in the House who would want that to be the outcome of these welcome government amendments.

[Lord Allan of Hallam (LD)]

My Lords, I also welcome this group of amendments. I remember a debate led by the noble Baroness, Lady Kidron, some time ago in the Moses Room, where we discussed this, and I said at the time I thought it would get fixed in the Online Safety Bill. I said that in a spirit of hope, not knowing any of the detail, and it is really satisfying to see the detail here today. As she said, it is testimony to the families, many of whom got in touch with me at that time, who have persisted in working to find a solution for other families—as the noble Baroness said, it is too late for them, but it will make a real difference to other families—and it is so impressive that, at a time of extreme grief and justifiable anger, people have been able to channel that into seeking these improvements.

The key in the amendments, which will make that difference, is that there will be a legal order to which the platforms know they have to respond. The mechanism that has been selected—the information notice—is excellent because it will become well known to every one of the 25,000 or so platforms that operate in the United Kingdom. When they get an information notice from Ofcom, that is not something that they will have discretion over; they will need to comply with it. That will make a huge difference.

21:15

The noble Baroness made an important point on this around privacy. Importantly, the platforms will be handing the data over to a public authority in the United Kingdom. So it will go to Ofcom and then, through Ofcom, to a coroner’s court. Again, legal order and public authority are quite critical and we have a mechanism that deals with that. If we want to test the amendments, we can look at the practical effect they will have in light of what the barriers have been to date. The companies have been stubborn in taking an extreme position on non-disclosure, to a point that seems completely irrational to anyone outside.

There have been three barriers. I will outline them briefly so that we understand how the amendments tackle them. The first barrier is legal concerns. This is not just the “I can’t give you the data because of data protection” type of limp excuse that we are all used to getting these days from different authorities. There are serious lawyers with genuine concerns that disclosure of data would lead a business into a risky area; businesses will tend to be risk-averse on data disclosures that they perceive to be optional or voluntary as opposed to those that they perceive to be mandatory. People may feel that they should feel the ethical or moral compulsion to disclose but, often, that has not been sufficient and legal concerns have been raised.

The second barrier concerns real fears about what may happen with the data. I come back to the point raised by the noble Baroness, Lady Kidron. I know that people have been through this stuff and they want to see what has been going on. Much of the content on social media sites is hard to fully anonymise without it failing to fulfil the purpose of helping people to understand what was going on. There is a difficult line to tread here. I know that people who work on this will sometimes find that the content they are being asked to disclose feels very sensitive. Their overwhelming fear is that, by disclosing that data, they will create a knock-on effect where, because of the disclosure, other individuals will become distressed and may even harm themselves. Again, that is a genuine fear.

The third barrier is embarrassment or shame at what has been going on and the platform not wanting to give transparency. I will not shy away from that; it is of course there as a strong motivation. People are sitting there defending their organisation and thinking, “Oh my goodness, we can’t disclose this”. So all three of these barriers exist at once. There are genuine legal fears, genuine fears about what may happen down the track—which is unknown—and then this corporate defensiveness which says, “Let’s not disclose”.

If we look at the orders here and the mechanisms that have been proposed, the legal barriers are overcome, at least in relation to the basic compulsion to disclose. There are some interesting issues about the Stored Communications Act, and when you look at the history of the Cloud Act, which was an attempt to reform the Stored Communications Act, you see that it is all quite messy when you are dealing with disclosing personal data from the United States to Europe. It becomes particularly problematic if the data is about Americans; of course, if you are using a social media platform, it may be that some of the content that people or families want to see is associated with an American. So it is gratifying to hear from the Minister that the Government are going to look at that.

Essentially, at least for much of the data, we will now have a straightforward legal mechanism that works. It cannot altogether fix this question of what happens with the data downstream. For that we have to trust Ofcom, working with the Information Commissioner’s Office and the coroners, to do the right thing and, when they get the data, to look after it. Then, if a platform is handing data over to agents of the British state with that kind of authority, it will feel that it can trust them. Let us hope that nothing happens and the trust will be there to move the data over and rely on their professionalism. The third issue of corporate embarrassment then becomes irrelevant, because they have no choice; that is then resolved and no longer a sufficient barrier to disclosure.

I have a few questions on the specifics of this. The first is on Amendment 190, on platforms declaring in their terms how they will handle the data of deceased children. Again, I lived through this, and most of the stuff to do with memorialisation and bereavement was entirely ad hoc. Platforms were built in an incredibly optimistic fantasy California world where no one died, so they did not think about that. But then a friend of someone did, and they got in touch and said, “What should we do?” and they replied, “Oh, we’ll come up with something”. That is literally the origin story of a lot of these memorialisation policies and things like that. Someone then said, “Well, that doesn’t work very well”, and someone else asked, “Who constitutes a family member who can make the request?” It all happened in this very ad hoc way, so Amendment 190 is welcome in making sure that that is more consistent.

It would be interesting if the Minister has any thoughts on how that extends to other people. Clearly, we are focused on deceased children, but some of the same considerations, certainly around transparency, apply to any deceased family member, whatever their age. Having a dedicated hotline specifically for children is right, but there is something interesting in Amendment 190 about filling the gaps around disclosure, transparency and memorialisation more generally, and making that consistent.

The second question is on Amendment 273, on reports into a death. My understanding is that this relates to a death of anyone of any age and that it is not limited to children specifically. Again, it would be interesting to hear more about how the Government see that working because, as I understand it, the volume through that channel could be much greater if we are talking about any death at any age, which is how I read Amendment 273, unless I have misunderstood it.

I have another question, on Amendment 249, which is on information notices specifically about child deaths. I do not want to broaden this out, but we need to flag that we will need some clarity around what assistance can be given to people where the death is of someone who is not a child. There will be situations that are important to families and where everyone has a huge amount of sympathy but where we are not dealing with a child. Again, it is right that we have this specific set of measures around deceased children, but we should expect that Ofcom will be asked, “What about other circumstances?” We need a reasonable answer to that: that other things are in place. I hope that the answer will be that, if it is a serious enough case, without the information notice powers Ofcom could still, under Amendment 273 as I read it, look into other deaths that involve adults, as well as the specific powers it has in relation to children. I would appreciate clarification from the Minister.

[Baroness Harding of Winscombe (Con)]

My Lords, given the hour, I will be brief. I wanted to thank my noble friend the Minister and the Secretary of State, and to congratulate my friend the noble Baroness, Lady Kidron, on such an important group. It is late at night and not many of us are left in the Chamber, but this is an important thing that they have succeeded in doing together, and it is important that we mark that. It is also a hugely important thing that the bereaved families for justice have achieved, and I hope that they have achieved a modicum of calm from having made such a big difference for future families.

I will make one substantive point, referencing where my noble friend the Minister talked about future Bills. In this House and in this generation, we are building the legal scaffolding for a digital world that already exists. The noble Lord, Lord Allan of Hallam, referenced the fact that much of this was built without much thought—not maliciously but just without thinking about the real world, life and death. In Committee, I was taken by the noble Lord, Lord Knight, mentioning the intriguing possibility of using the Data Protection and Digital Information Bill to discuss data rights and to go beyond the dreadful circumstances that these amendments cover to make the passing on of your digital assets something that is a normal part of our life and death. So I feel that this is the beginning of a series of discussions, not the end.

I hope that my noble friend the Minister and whichever of his and my colleagues picks up the brief for the forthcoming Bill can take to heart how we have developed all this together. I know that today has perhaps not been our most wholly collaborative day, but, in general, I think we all feel that the Bill is so much the better for the collaborative nature that we have all brought to it, and on no more important a topic than this amendment.

[Lord Clement-Jones (LD)]

My Lords, I will be extremely brief. We have come a very long way since the Joint Committee made its recommendations to the Government, largely, I think, as a result of the noble Baroness, Lady Kidron. I keep mistakenly calling her “Baroness Beeban”; familiarity breeds formality, or something.

I thank the Minister and the Secretary of State for what they have done, and the bereaved families for having identified these issues. My noble friend Lord Allan rightly identified the sentiments as grief and anger at what has transpired. All we can do is try to do, in a small way, what we can to redress the harm that has already been done. I was really interested in his insights into how a platform will respond and how this will help them through the process of legal order and data protection issues with a public authority.

My main question to the Minister is in that context—the relationship with the Information Commissioner’s Office—because there are issues here. There is, if you like, an overlap of jurisdiction with the ICO, because the potential or actual disclosure of personal data is involved, and therefore there will necessarily have to be co-operation between the ICO and Ofcom to ensure the most effective regulatory response. I do not know whether that has emerged on the Minister’s radar, but it certainly has emerged on the ICO’s radar. Indeed, in the ideal world, there probably should be some sort of consultation requirement on Ofcom to co-operate with the Information Commissioner in these circumstances. Anything that the Minister can say on that would be very helpful.

Again, this is all about reassurance. We must make sure that we have absolutely nailed down all the data protection issues involved in the very creative way the Government have responded to the requests of the bereaved families so notably championed by the noble Baroness, Lady Kidron.

[Lord Knight of Weymouth (Lab)]

My Lords, first, I associate myself with the excellent way in which the noble Baroness, Lady Harding, paid tribute to the work of the noble Baroness, Lady Kidron, on behalf of Bereaved Families for Online Safety, and with the comments she made about the Minister and the Secretary of State in getting us to this point, which were echoed by others.

I have attached my name, on behalf of the Opposition, to these amendments on the basis that if they are good enough for the noble Baroness, Lady Kidron, it ought to be good enough for me. We should now get on with implementing them. I am also hopeful to learn that the Minister has been liaising with the noble Baroness, Lady Newlove, to ensure that the amendments relating to coroners’ services, and the equivalent procurator fiscal service in Scotland, will satisfy her sense of what will work for victims. I am interested, also, in the answer to the question raised by the noble Baroness, Lady Kidron, regarding a requirement for senior managers to attend inquests. I liked what she had to say about the training for coroners being seeing as media literacy and therefore fundable from the levy.

All that remains is for me to ask three quick questions to get the Minister’s position clear regarding the interpretation of the new Chapter 3A, “Deceased Child Users”. First, the chapter is clear that terms of service must clearly and easily set out policy for dealing with the parents of a deceased child, and must provide a dedicated helpline and a complaints procedure. In subsection (2), does a helpline or similar—the “similar” being particularly important—mean that the provider must offer an accessible, responsive and interactive service? Does that need to be staffed by a human? I think it would be helpful for the Minister to confirm that is his intention that it should be, so that parents are not fobbed off with solely an automated bot-type service.

21:30

Secondly, the requirement to provide a complaints service is clear. The duties on Ofcom in the group are also clear enough. Can he make sure he has summarised on the record the consequences for the provider if they fail in their duties and, in particular, if the platform’s complaints service is insufficient.

Finally, in the circumstance of a complaints service failing a parent, what should they then do? Do they have direct recourse to Ofcom? Will the regulator need to offer individual parents a channel to report problems if they have satisfied all the provider’s own processes, as set out in these clauses?

Again, I repeat my thanks to all across the House who have worked so hard to get substantial progress on this key issue.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful for the recognition of the work that has been done here, led by the noble Baroness, Lady Kidron, but involving many others, including officials who have worked to bring this package forward.

Noble Lords took the opportunity to ask a number of questions. The noble Baroness, Lady Kidron, asked about senior management liability. Ofcom will have extensive enforcement powers at its disposal if service providers do not comply with its information requests issued on behalf of a coroner. The powers will include the ability to hold senior managers criminally liable for non-compliance. Those powers are in line with Ofcom’s existing information-gathering powers in the Bill. Where Ofcom has issued an information request to a company, that company may be required to name a senior manager who is responsible for ensuring compliance with the requirements of the notice. If the named senior manager is found to have failed to comply with that information notice, or has failed to take all reasonable steps to prevent a failure to comply with the notice, that individual will be held personally liable and could be subject to imprisonment.

On the point about them not appearing in court, coroners have well-established powers to require senior managers to attend court. The enforcement powers available to Ofcom are in line with Ofcom’s existing information-gathering powers in the Bill. They do not extend to Ofcom requiring senior managers to appear in court as part of a coronial investigation. We do not think that would be appropriate for Ofcom, given that the coroner’s existing remit already covers this. The noble Baroness raised many specific instances that had come to her attention, and if she has specific examples of people not attending court that she would like to share with us and the Ministry of Justice, of course we would gladly follow those up.

The noble Lord, Lord Knight, rightly mentioned my noble friend Lady Newlove. I can reassure him that I have discussed this package of amendments with her, and had the benefit of her experience as a former Victims’ Commissioner.

On the training for coroners, which is an issue she raised, as did the noble Baroness, Lady Kidron, in her remarks just now, the Chief Coroner for England and Wales has statutory responsibility for maintaining appropriate arrangements for the training of coroners. That is of course independent of government, and exercised through the Judicial College, but the training is mandatory and the Chief Coroner is aware of the issues we are debating now.

The noble Lords, Lord Allan of Hallam and Lord Knight of Weymouth, raised the helpline for parents. Yes, we expect our approach of requiring a dedicated helpline or similar means will involve a human. As we say, we want a more humane process for those who need to use it; we think it would be more effective than requiring a company to provide a named individual contact. We touched on this briefly in Committee, where the point was raised, understandably, about staff turnover or people being absent on leave—that a requirement for a named individual could hinder the contact which families need to see there.

The noble Lord, Lord Allan, also asked some questions about deaths of people other than a child. First, Ofcom’s report in connection with investigations into a death covers any coronial inquest, not just children. More broadly, of course, social media companies may have their own terms and conditions or policies in place setting out when they will share information after somebody has passed away. Companies based outside the UK may have to follow the laws of the jurisdiction in which they are based, which may limit the sharing of data without a court order. While we recognise the difficulty that refusing to disclose data may cause for bereaved relatives in other circumstances, the right to access must, of course, be balanced with the right to privacy. Some adult social media users may be concerned, for instance, about the thought of family members having access to information about their private life after their deaths, so there is a complexity here, as I know the noble Lord understands.

The noble Baroness, Lady Kidron, asked about data preservation orders. I am very glad that officials from another Bill team are already in touch with her, as they should be. As we set out in Committee, we are aware of the importance of data preservation to coroners and bereaved parents, and the Government agree with the principle of ensuring that those data are preserved. We will work towards a solution through the Data Protection and Digital Information Bill. My noble friend Lord Camrose—who is unable to be with us today, also for graduation reasons—and I will be happy to keep the House and all interested parties updated about our progress in resolving the issue of data preservation as we work through this complex problem.

The noble Lord, Lord Clement-Jones, asked about the Information Commissioner’s Office. We expect Ofcom to consult the ICO on all the guidance where its expertise will be relevant, including on providers’ new duties under these amendments. I am grateful, as I say, for the support that they have had and the recognition that this has been a long process since these issues were first raised in the pre-legislative committee. We believe that it is of the utmost importance that coroners and families can access information about a child’s internet use following a bereavement, and that companies’ responses are made in a humane and transparent way.

This group of amendments should be seen alongside the wider protections for children in the Bill, and I hope they will help bereaved parents to get the closure that they deserve. The noble Lord, Lord Allan, was right to pay tribute to how these parents, who have campaigned so bravely, have turned their grief and frustration into a determination to make sure that no other parents go through the sorts of ordeals that they have. That is both humbling and inspiring, and I am glad that the Bill can help to be a part of the change that they are seeking. I share my noble friend Lady Harding’s wish that it may bring them a modicum of calm. I beg to move.

Amendment 84 agreed.

Clause 25: Safety duties protecting children

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

Amendment 85 is consequential to Amendment 35, which was previously agreed.

Amendment 85

Moved by

[Baroness Kidron]

85: Clause 25, page 28, line 33, at end insert—
“(c) mitigate the impact of harm to children in different age groups presented by search functions that expose children to features, functionalities or behaviours that are harmful to children.”Member’s explanatory statement
This amendment ensures that Search services’ duty to protect children from harm includes the ways in which the design and operation of services may create harm separately and additionally to harm relating to the dissemination or encountering harmful content.

Amendment 85 agreed.

Amendment 86

Moved by

[Lord Parkinson of Whitley Bay]

86: Clause 25, page 29, line 28, leave out “this section” and insert “section 25”
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 25 into two Clauses.

Amendment 86 agreed.

Amendment 87 not moved.

Amendments 88 and 89

Moved by

[Lord Parkinson of Whitley Bay]

88: Clause 25, page 29, line 34, leave out “this section” and insert “section 25”
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 25 into two Clauses.

89: Clause 25, page 29, line 38, leave out “subsection (3)(b)” and insert “section 25(3)(b)”
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 25 into two Clauses.

Amendments 88 and 89 agreed.

Amendment 90 not moved.

Amendments 91 to 96

Moved by

[Lord Parkinson of Whitley Bay]

91: Clause 25, page 29, line 42, leave out “subsection (3)” and insert “section 25(3)”
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 25 into two Clauses.

92: Clause 25, page 30, line 1, leave out “this section” and insert “section 25”
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 25 into two Clauses.

93: Clause 25, page 30, line 4, leave out from “if” to “the” in line 6 and insert “age verification or age estimation is used on the service with”
Member’s explanatory statement
This amendment provides that a provider can only conclude that children cannot access a service if age verification or age estimation is used on the service with the result that children are not normally able to access it.

94: Clause 25, page 30, line 8, after “In” insert “section 25 and”
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 25 into two Clauses.

95: Clause 25, page 30, line 10, leave out “this section” and insert “section 25”
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 25 into two Clauses.

96: Clause 25, divide Clause 25 into two clauses, the first (Safety duties protecting children) to consist of subsections (1) to (9) and the second (Safety duties protecting children: interpretation) to consist of subsections (10) to (17)
Member’s explanatory statement
This amendment splits up Clause 25 into two Clauses.

Amendments 91 to 96 agreed.

Clause 27: Duties about complaints procedures

Amendment 97

Moved by

[Lord Parkinson of Whitley Bay]

97: Clause 27, page 32, line 2, leave out “25(3)” and insert “25(2) or (3)”
Member’s explanatory statement
This amendment is about complaints of content being blocked because of an incorrect assessment of a user’s age. A reference to Clause 25(2) is inserted, as the duty in that provision can also be complied with by using age verification or age estimation.

Amendment 97 agreed.

Clause 29: Record-keeping and review duties

Amendment 98

Moved by

[Lord Parkinson of Whitley Bay]

98: Clause 29, page 33, line 41, at end insert “,
and for the purposes of subsection (6), also includes the duties set out in section (Disclosure of information about use of service by deceased child users) (deceased child users).”Member’s explanatory statement
This amendment has the effect that OFCOM have a duty to review compliance by search service providers with the new duties imposed by the Clause proposed after Clause 67 in my name.

Amendment 98 agreed.

Clause 30: Children’s access assessments

Amendment 99

Moved by

[Lord Parkinson of Whitley Bay]

99: Clause 30, page 34, line 12, leave out from “if” to “the” in line 13 and insert “age verification or age estimation is used on the service with”
Member’s explanatory statement
This amendment provides that a provider can only conclude that children cannot access a service if age verification or age estimation is used on the service with the result that children are not normally able to access it.

Amendment 99 agreed.

Amendment 100

Moved by

[Baroness Kidron]

100: Clause 30, page 34, line 23, after “significant” insert “in itself or”
Member’s explanatory statement
This amendment aligns the definition of “significant” with the ICO’s Age Appropriate Design Code and draft guidance to ensure regulatory alignment and to ensure the protection of the greatest number of children.

[Baroness Kidron (CB)]

My Lords, I apologise for speaking once more today. I shall introduce Amendments 100 and 101 on the child user condition. They are very technical in nature and simply align the definition of “significant” in the Bill with the ICO’s age-appropriate design code to ensure regulatory alignment and to ensure the protection of the greatest number of children.

The Minister has stated on the record that the child-user condition is the same as the age-appropriate design code; however, in Clause 30(3) of the Bill, a service is “likely to be accessed” by children if

“(a) there is a significant number of children who are users of the service or of that part of it, or (b) the service, or that part of it, is of a kind likely to attract a significant number of users who are children”.

At Clause 30(4),

“the reference to a ‘significant’ number includes a reference to a number which is significant in proportion to the total number of United Kingdom users of a service or … part of a service”.

That is a key issue: “in proportion”. Because, by contrast, the ICO’s age-appropriate design code states that a service is “likely to be accessed” if

“children form a substantive and identifiable user group”.

That is quite a different threshold.

In addition, the ICO’s draft guidance on “likely to be accessed” sets out a list of factors that should be taken into consideration when making this assessment. These factors are far more extensive than Clause 30(4) and specifically state:

“‘Significant’ in this context does not mean that a large number of children must be using the service or that children form a substantial proportion of your users. It means that there are more than a de minimis or insignificant number of children using the service”.


In other words, it is possibly quite a small group, or a stand-alone group, that is not in proportion to the users. I will stop here to make the point that sometimes users are in their millions or tens of millions, so a small proportion could be many hundreds of thousands of children—just to be really clear that this matters and I am not quite dancing on the head of a pin here.

Amendment 101 mirrors the ICO’s draft guidance on age assurance on this point. I really struggle to see, if the intention of the Government is that these two things align, why this would not be just a technical amendment that they can just say yes to and we can move on.

I finish by reminding the House that the legal opinion of my noble and learned friend Lord Neuberger, the former head of the Supreme Court, which I shared with the Government, highlights the importance of regulatory alignment, clarity and consistency, particularly in new areas of law where concepts such as “likely to be accessed” are becoming a phrase that is in more than one Act.

My noble and learned friend states:

“As the Minister rightly says, simplicity and clarity are desirable in a statute, and it serves both simplicity and clarity if the same expression is used in the two statutes, and it is made clear that the same meaning is intended … The currently drafted reference in the Bill to ‘a significant number of children’ appears to me to be something of a recipe for uncertainty, especially when compared with the drafting of section 123 of the DPA”.


With that, I beg to move.

21:45

[Lord Clement-Jones (LD)]

My Lords, very briefly, I commend these two amendments. Again, the provenance is very clear; the Joint Committee said:

“This regulatory alignment would simplify compliance for businesses, whilst giving greater clarity to people who use the service, and greater protection to children.”


It suggested that the Information Commissioner’s Office and Ofcom should issue a joint statement on how these two regulatory systems will interact once the Online Safety Bill has been enacted. That still sounds eminently sensible, a year and a half later.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, Amendments 100 and 101 seek further to define the meaning of “significant” in the children’s access assessment, with the intention of aligning this with the meaning of “significant” in the Information Commissioner’s draft guidance on the age-appropriate design code.

I am grateful to the noble Baroness, Lady Kidron, for the way in which she has set out the amendments and the swiftness with which we have considered it. The test in the access assessment in the Bill is already aligned with the test in the code, which determines whether a service is likely to be accessed by children in order to ensure consistency for all providers. The Information Commissioner’s Office has liaised with Ofcom on its new guidance on the likely to access test for the code, with the intention of aligning the two regulatory regimes while reflecting that they seek to do different things. In turn, the Bill will require Ofcom to consult the ICO on its guidance to providers, which will further support alignment between the tests. So while we agree about the importance of alignment, we think that it is already catered for.

With regard to Amendment 100, Clause 30(4)(a) already states that

“the reference to a ‘significant’ number includes a reference to a number which is significant in proportion to the total number of United Kingdom users of a service”.

There is, therefore, already provision in the Bill for this being a significant number in and of itself.

On Amendment 101, the meaning of “significant” must already be more than insignificant by its very definition. The amendment also seeks to define “significant” with reference to the number of children using a service rather than seeking to define what is a significant number.

I hope that that provides some reassurance to the noble Baroness, Lady Kidron, and that she will be content to withdraw the amendment.

[Baroness Kidron (CB)]

I am not sure that, at this late hour, I completely understood what the Minister said. On the basis that we are seeking to align, I will withdraw my amendment, but can we check that we are aligned as my speech came directly from a note from officials that showed a difference? On that basis, I am happy to withdraw.

Amendment 100 withdrawn.

Amendment 101 not moved.

Clause 31: Duties about children’s access assessments

Amendment 102

Moved by

[Lord Parkinson of Whitley Bay]

102: Clause 31, page 35, line 1, leave out from “of” to “as” in line 2 and insert “age verification or age estimation that is used on the service”
Member’s explanatory statement
This amendment is consequential on the amendment of clause 30 in my name.

Amendment 102 agreed.

Schedule 3: Timing of providers’ assessments

Amendments 103 to 122

Moved by

[Lord Parkinson of Whitley Bay]

103: Schedule 3, page 195, line 34, at end insert—
“5A (1) In this paragraph “the relevant day”, in relation to a regulated user-to- user service, means—(a) the first day on which the service is a Category 1 service, or (b) the first day on which the service again becomes a Category 1 service (following a period during which the service was not a Category 1 service).(2) If, on the relevant day, section 12(2) guidance is available, a section 12(2) assessment of the service must be completed within the period of three months beginning with that day.(3) Sub-paragraph (4) applies if—(a) on the relevant day, the first section 12(2) guidance has not yet been published, and(b) immediately before the publication of that guidance, the service is still a Category 1 service.(4) The first section 12(2) assessment of the service must be completed within the period of three months beginning with the day on which the first section 12(2) guidance is published.”Member’s explanatory statement
This amendment and the rest of the amendments of Schedule 3 in my name provide for the timing of the first assessments under the new Clause proposed after Clause 11 in my name.

104: Schedule 3, page 196, line 36, leave out “and 12” and insert “to 12A”
Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

105: Schedule 3, page 196, line 43, at end insert—
“(2A) If the effect of paragraph 5A is that the period within which the first section 12(2) assessment of the service must be completed begins on a day before the assessment start day, the time for carrying out that assessment is extended as set out in paragraph 12A.”Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

106: Schedule 3, page 196, line 44, leave out “and 12” and insert “to 12A”
Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

107: Schedule 3, page 197, line 14, at end insert—
“12A (1) If section 12(2) guidance is available on the assessment start day, the first section 12(2) assessment of the service must be completed within the period of three months beginning with that day.(2) If, on the assessment start day, the first section 12(2) guidance has not yet been published, the first section 12(2) assessment of the service must be completed within the period of three months beginning with the day on which the first section 12(2) guidance is published.”Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

108: Schedule 3, page 197, line 24, after “1” insert “or paragraph 5A”
Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

109: Schedule 3, page 197, line 25, leave out “or CAA” and insert “, CAA or section 12(2) assessment”
Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

110: Schedule 3, page 197, line 28, leave out “or 15” and insert “, 15 or 15A”
Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

111: Schedule 3, page 197, line 30, leave out “applies” and insert “and paragraph 5A apply”
Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

112: Schedule 3, page 198, line 8, at end insert—
“15A (1) If section 12(2) guidance is available on the assessment start day, a section 12(2) assessment of the Part 4B part must be completed within the period of three months beginning with that day.(2) If, on the assessment start day, the first section 12(2) guidance has not yet been published, a section 12(2) assessment of the Part 4B part must be completed within the period of three months beginning with the day on which the first section 12(2) guidance is published.”Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

113: Schedule 3, page 198, line 13, at end insert—
“(b) a section 12(2) assessment of the regulated service if a section 12(2) assessment is due to be carried out in relation to the Part 4B part of the service in accordance with paragraph 15A.”Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

114: Schedule 3, page 198, line 15, leave out “or a CAA” and insert “, a CAA or a section 12(2) assessment”
Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

115: Schedule 3, page 198, line 25, leave out “or a CAA” and insert “, a CAA or a section 12(2) assessment”
Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

116: Schedule 3, page 198, line 26, after “1” insert “or paragraph 5A”
Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

117: Schedule 3, page 198, line 37, at end insert—
“(c) a section 12(2) assessment is not required to be carried out at the time provided for by paragraph 5A.”Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

118: Schedule 3, page 198, line 38, leave out “or CAA” and insert “, CAA or section 12(2) assessment”
Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

119: Schedule 3, page 198, line 39, at end insert “or paragraph 5A.”
Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

120: Schedule 3, page 199, line 18, at end insert—
“section 12(2) assessment” means OFCOM’s assessment under section (Assessment duties: user empowerment) (assessments related to the adult user empowerment duty set out in section 12(2)); “section 12(2) guidance” means OFCOM’s guidance under section 47(A1).”Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

121: Schedule 3, page 200, line 6, after “CAA” insert “, a section 12(2) assessment”
Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

122: Schedule 3, page 200, line 12, after “CAAs” insert “, section 12(2) assessments”
Member’s explanatory statement
See the explanatory statement for the first amendment to Schedule 3 in the Minister’s name.

Amendments 103 to 122 agreed.

Amendment 123 not moved.

Schedule 4: Codes of practice under section 36: principles, objectives, content

Amendment 124

Moved by

[Lord Parkinson of Whitley Bay]

124: Schedule 4, page 203, line 23, at end insert—
“Content of codes of practice: age assurance
11A (1) This paragraph is about the inclusion of age assurance in a code of practice as a measure recommended for the purpose of compliance with any of the duties set out in section 11(2) or (3) or 25(2) or (3), and sub- paragraph (2) sets out some further principles, in addition to those in paragraphs 1 and 2 (general principles) and 10(2) (freedom of expression and privacy), which are particularly relevant.(2) In deciding whether to recommend the use of age assurance, or which kinds of age assurance to recommend, OFCOM must have regard to the following—(a) the principle that age assurance should be effective at correctly identifying the age or age-range of users;(b) relevant standards set out in the latest version of the code of practice under section 123 of the Data Protection Act 2018 (age- appropriate design code);(c) the need to strike the right balance between—(i) the levels of risk and the nature, and severity, of potential harm to children which the age assurance is designed to guard against, and(ii) protecting the right of users and (in the case of search services or the search engine of combined services) interested persons to freedom of expression within the law;(d) the principle that more effective kinds of age assurance should be used to deal with higher levels of risk of harm to children;(e) the principle that age assurance should be easy to use, including by children of different ages and with different needs;(f) the principle that age assurance should work effectively for all users regardless of their characteristics or whether they are members of a certain group;(g) the principle of interoperability between different kinds of age assurance. (3) In a code of practice that describes measures for the purpose of compliance with the duty set out in section 11(3)(a), OFCOM must recommend (among other things) age verification or age estimation which is such of a kind, and which is to be used in such a way, that it is highly effective at correctly determining whether or not a particular user is a child (see section 11(3C)).(4) In deciding which kinds and uses of age verification or age estimation to recommend for the purpose of compliance with the duty set out in section 11(3)(a), OFCOM must have regard to their guidance under section 73 that gives examples of kinds and uses of age verification and age estimation that are, or are not, highly effective at correctly determining whether or not a particular user is a child.(5) Nothing in sub-paragraph (2) is to be read as allowing OFCOM to recommend, for the purpose of compliance with the duty set out in section 11(3)(a) by providers subject to the requirement in section 11(3A), a kind or use of age verification or age estimation which does not meet the requirement to be highly effective as mentioned in section 11(3C).(6) A code of practice that recommends the use of age assurance for the purpose of compliance with the duties set out in section 11(2) or (3) must also describe measures recommended for the purpose of compliance with the duties set out in—(a) section 11(6), (8) and (10) (inclusion of clear information in terms of service), and(b) section 17(2) and (3)(see, in particular, section 17(5)(e) (complaints about age assurance)).(7) A code of practice that recommends the use of age assurance for the purpose of compliance with the duties set out in section 25(2) or (3) must also describe measures recommended for the purpose of compliance with the duties set out in—(a) section 25(5) and (8) (inclusion of clear information in publicly available statement), and(b) section 27(2) and (3)(see, in particular, section 27(5)(d) (complaints about age assurance)).(8) A code of practice may—(a) refer to industry or technical standards for age assurance (where they exist);(b) elaborate on the principles mentioned in paragraphs (a) and (c) to (g) of sub-paragraph (2).(9) In this paragraph “age assurance” means age verification or age estimation, and see in particular section (“Age verification” and “age estimation”) (4) (self-declaration of age not to be regarded as age verification or age estimation).”Member’s explanatory statement
This amendment contains provisions which relate to OFCOM’s recommendation of age assurance in codes of practice for the purposes of Part 3 of the Bill. It includes some relevant principles and makes it clear that OFCOM must recommend highly effective age assurance in connection with the duty in Clause 11(3)(a) (preventing children from encountering primary priority content that is harmful to children).

Amendment 125 (to Amendment 124) not moved.

Amendment 124 agreed.

Amendments 126 and 127

Moved by

[Lord Parkinson of Whitley Bay]

126: Schedule 4, page 204, line 10, leave out “existing”
Member’s explanatory statement
This amendment is a minor drafting change to omit a superfluous word.

127: Schedule 4, page 204, line 14, at end insert—
“(7) Sub-paragraph (6) does not apply in relation to proactive technology which is a kind of age verification or age estimation technology.”Member’s explanatory statement
This amendment carves out age assurance technologies from the paragraph of Schedule 4 which is about proactive technology, because age assurance principles etc are covered by new paragraph 11A proposed to be inserted by the amendment in my name above.

Amendments 126 and 127 agreed.

Clause 38: Procedure for issuing codes of practice

Amendment 128 not moved.

Consideration on Report adjourned.

House adjourned at 9.51 pm.