Online Safety Bill

Baroness D'Souza Excerpts

2nd reading
Wednesday 1st February 2023 Lords Chamber

[Baroness D'Souza (CB)]

My Lords, this is indeed a huge, complex and courageous Bill which deserves widespread support. Despite some welcome government amendments during its passage in the other place, there are residual concerns about guarantees of freedom of expression and access to information, as well as the degree to which the regulator, Ofcom, is independent of government control.

It is widely acknowledged by the Government themselves and the majority of those who have spoken to the Bill that the right to free speech is a fundamental aspect of our democracy, and that any restriction must be fully justified in the public interest. Public interest includes the freedom to access unwelcome, unpopular and even offensive material, if only to be able to refute it. It is also accepted that a functioning democracy needs new ideas and robust debate. That said, it is a fine and difficult line to draw between offensive material and illegal content. In their efforts, the Government have sought to protect above all the safety of children.

I start with a presumption in favour of free speech and a multiplicity of voices. Clauses 18 and 28 state that providers must

“have particular regard to the … users’ right to freedom of expression”

and to protecting users from breaches of any laws relating to privacy. This would be achieved by rigorous impact assessments of safety measures and policies, any infringements of which must be made publicly available. However, the definition of democratically important material as information

“specifically intended to contribute to democratic political debate in the United Kingdom”

remains vague, and other strict requirements on protecting children in the Bill could condemn offensive but necessary democratic content.

Clause 160 refers to false information intended

“to cause non-trivial psychological or physical harm”.

It may, in many cases, be entirely obvious when such harm is intended, but not in all cases. On whom does the burden of proof lie and what recourse does an individual have to appeal false accusations?

The stricture that democratically important content be preserved is by no means fully guaranteed by the following powers set out in the Bill. There is a potential danger of undue restriction that lies in the degree of control from the Secretary of State and his or her relationship with Ofcom; the terms and conditions of service for category 1 providers; the options, or lack of them, for user control of online material; and the role of Parliament.

Draft codes of practice are to be submitted to the Secretary of State, who could require Ofcom to modify codes in the interests of national security or public safety. The Secretary of State will pass any statement on strategic priorities to Ofcom, but parliamentary approval would be by means only of the negative resolution procedure.

The Secretary of State can issue guidance and directions to Ofcom, which in turn has a crucial role in acting against a provider that is not complying with the requirement to fulfil duties under the Act, including the imposition of fines of up to £18 million and “business disruption measures”—in other words, outright censorship. Although such drastic action could occur only in the case of a breach of the terms of service, there would be no restriction on taking down content to comply with other duties—for example, if it was judged that the content might be “likely” to be accessed by children. This, it is feared, would encourage providers to play safe. Furthermore, the terms and conditions can be altered at will by the provider.

The age verification process would necessarily require the user to register with a provider, preventing any casual access by adults. Furthermore, to remove unnecessary barriers to information, the controls available to the user should be a genuine option and not imposed by default.

This is a truly important Bill and I congratulate the authors and campaigners, as well as the Government, on bringing it to this advanced stage. I nevertheless believe that it could be further improved to ensure that the most liberal interpretations of online freedom of expression remain at the heart of our democracy.

Public Service Broadcasting: BBC Centenary

Baroness D'Souza Excerpts

Thursday 3rd November 2022 Lords Chamber

[Baroness D'Souza (CB)]

My Lords, public service broadcasting works in the UK within a wide framework of duties and responsibilities. These include strict rules on content, range, outreach, implementation and funding. The BBC is also bound by the royal charter, which sets out its objectives, mission and purposes. While we have a free broadcast media, it is monitored and regulated by Ofcom.

The House of Commons Digital, Culture, Media and Sport Committee’s 2021 report The Future of Public Service Broadcasting identified three core principles within public service broadcasting: universality of access, accuracy and impartiality, and freedom from government interference or political pressure. In a subsequent report in 2021, the same committee considered that the Communications Act 2003 had been overtaken by huge changes in online digital broadcasting and should no longer be considered fit for purpose. There is a dilemma: how best to amend legislation which pre-dates the rise of streaming platforms and is therefore outdated, and how new funding models might enable relevant and accessible public service broadcasting to compete effectively with the giant online platforms that remain as yet largely unregulated.

The overall consensus is that new primary legislation is now required to replace the 2003 Act, if only to keep pace with broader industry and economic trends and hundreds of other competing channels and online services. However, all the existing safeguards must be retained and perhaps even strengthened. A media Bill, announced in the Queen’s Speech in May 2022 and foreshadowed in the Government’s White Paper, is likely to encompass the core principles of public service broadcasting—to be renamed public service media—through new regulatory powers to enforce codes for on-demand videos and stricter rules on potentially harmful material. When the Bill arrives, I am sure it will be much debated.

Meanwhile, the BBC is the only major provider that relies entirely on the annual licence fee, which makes it uniquely vulnerable to political pressure. As we have heard, the BBC licence fee is currently frozen and remains under review, but it is 30% lower in real terms than it was a decade ago. The BBC has found savings approaching £1 billion over the past five years, but it will need to reduce its budget further, by approximately £300 million, before the end of this decade. However, reorganising and recreating models that satisfactorily relay public service broadcasting on both linear and online services will be very expensive.

While acknowledging the fall in listener and viewer numbers in the past five years, the BBC remains a key public service broadcasting provider around the world and the BBC director-general has announced plans to deal with competition and reduced budgets, staff and broadcasting hours while maintaining its crucial public service broadcasting role. These plans, which anticipate the closure of the BBC News channel and BBC World News, the latter funded by subscription and advertising, in favour of a rolling news service, will be fiercely resisted—not least because the new service will be a commercial venture and potentially therefore precluded from licence fee funding.

Colleagues in this Chamber have spoken, and no doubt will speak, with warmth and affection about the BBC World Service and its immense soft power. This is not, I would say, sentimentality; it is a hard, factual appreciation of the gem we have. I remember being extremely moved many years ago in Khartoum when that city simply went silent in order to listen to the 1 pm news, and not much has changed; I think that still happens the world over. In more recent times, the figures for listeners have shot up during world crises such as the Russian invasion of Ukraine. The reasons for this are obvious but worth restating: in an environment of disinformation, misinformation, half-truths and fantasy, the BBC is trusted.

The world’s most respected broadcaster and one of the UK’s key democratic institutions faces a bleak future in the absence of realistic funding. If public service broadcasting is to be given the importance to our democracy and to our culture that it deserves, together with the cost of maintaining linear broadcasting and expanding online on-demand services, it is vital that the Government provide sufficient funds. It is astonishing to me that the Government would even think of limiting or undermining such a powerful channel of UK influence. Instead, they should be ensuring its long-term security, to enable the BBC, including the World Service, to streamline its public service broadcasting for future decades.

Freedom of Speech

Baroness D'Souza Excerpts

Friday 10th December 2021 Lords Chamber

[Baroness D’Souza (CB)]

My Lords, we all agree that free speech is one of the most important of our individual rights and, some would argue, the cornerstone of democracy. However, it is increasingly hijacked by social media platforms to spread sensation, hate and disinformation, and by the so-called woke community to prevent views other than its own being expressed. The issue is how to balance much-needed regulation with the protection of free speech.

It is reliably reported that large sums of foreign money were invested in recent US and UK elections, as well as in the EU referendum. In 2019, political parties or leaders in some 45 democratic countries used computer propaganda tools to amass fake voter support, and a further 26 authoritarian states used social networks to control and/or supress public opinion and media freedoms.

Democratic public discourse is threatened by disinformation. It diminishes the quality of democracy by fostering confusion and disbelief. It distorts the electoral process, resulting in electoral instability, and limits the freedom of the individual to make informed choices and exercise their political rights. It encourages dangerous polarisation, making it easy to just tap into one’s preference, and it drowns out opinions that run counter to the prevailing wisdom. It was, after all, John Stuart Mill who said that Victorian liberalism would be destroyed by the conformity imposed by public opinion. We need dissident voices, unpopular views and robust debate but we absolutely do not need vicious trolling, often contributing to loss of employment and immense personal distress.

However, regulation is a tricky area and open to abuse by those who seek to control information. In 2019, a Russia-led and China-backed UN resolution on combating cybercrime by controlling information and supressing political dissidence was passed, despite opposition from several major western powers. Many would, for these reasons, rule out legal restrictions.

There is intense discussion at the moment in the context of the draft Online Safety Bill to find guaranteed safeguards, such as a statutory duty of care on the part of social media companies. It is hoped that self-regulation will itself become a market force as more people turn away from those sites that spread hate and disinformation. It is, perhaps, a vain hope, but it is a hope nevertheless. A proper code of practice on misinformation and annual reports from social media platforms on what content has been removed in other jurisdictions would inform the user about the degree of authoritarianism in other nations. It is also suggested that there be a Joint Committee in Parliament to consider the regulation of the digital environment and proper monitoring of compliance.

However, these mechanisms will prove effective only if the public are actively involved—for example, enabling choice as to which platforms to use, such as those that have verified their identity, or limiting any one platform from being the default search engine on mobile phones. Digital citizenship and media literacy at early school levels, kitemarks for responsible platforms and the sharing of best practice models would together create a culture of much-needed public and individual responsibility.

Finally, civil society has an important role to play. For example, Full Fact—an organisation that will be familiar to many noble Lords—is one of the first of a growing number of independent organisations whose sole purpose is to expose disinformation by forensically examining false claims and political coercion. The US civil society organisation Blackbird has identified a Twitter campaign in the US whose goal is to delegitimise the Democratic Party because of its early warnings on Covid. Increasingly devious mechanisms are constantly being uncovered and Parliaments around the world have a duty to monitor these threats and act, preferably at the international level.