Online Safety Bill

Debate between Baroness Finlay of Llandaff and Baroness Kidron

Report stage
Monday 17th July 2023 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I shall speak to my Amendment 275A in this group. It would place a duty on Ofcom to report annually on areas where our legal codes need clarification and revision to remain up to date as new technologies emerge—and that is to cover technologies, some of which we have not even thought of yet.

Government Amendments 206 and 209 revealed the need for an amendment to the Bill and how it would operate, as they clarify that reference to pornographic content in the Bill includes content created by a bot. However, emerging technologies will need constant scrutiny.

As the noble Lord, Lord Clement-Jones, asked, what about provider content, which forms the background to the user interaction and may include many harms. For example, would a game backdrop that includes anti-Semitic slurs, a concentration camp, a sex shop or a Ku Klux Klan rally be caught by the Bill?

The Minister confirmed that “content” refers to anything communicated by means of an internet service and the encounter includes any content that individuals read, view, hear or otherwise experience, making providers liable for the content that they publish. Is this liable under civil, regulatory or criminal law?

As Schedule 1 goes to some lengths to exempt some service-to-provider content, can the Minister for the record provide chapter and verse, as requested by the noble Lord, Lord Clement-Jones, on provider liability and, in particular, confirm whether such content would be dealt with by the Part 3 duties under the online safety regime or whether users would have to rely on similar law for claims at their own expense through the courts or the police carry the burden of further enforcement?

Last week, the Minister confirmed that “functionality” captures any feature enabling interactions of any description between service users, but are avatars or objects created by the provider of a service, not by an individual user, in scope and therefore subject to risk assessments and their mitigation requirements? If so, will these functionalities also be added to user empowerment tools, enabling users to opt out of exposure to them, or will they be caught only by child safety duties? Are environments provided by a service provider, such as a backdrop to immersive environments, in scope through the definition of “functionality”, “content” or both? When this is provider content and not user-generated content, will this still hold true?

All this points to a deeper issue. Internet services have become more complex and vivid, with extremely realistic avatars and objects indistinguishable from people and objects in the real world. This amendment avoids focusing on negatives associated with AI and new technologies but tries to ensure that the online world is as safe as the offline world should be. It is worth noting that Interpol is already investigating how to deal with criminals in the metaverse and anticipating crimes against children, data theft, money laundering, fraud and counterfeit, ransomware, phishing, sexual assault and harassment, among other things. Many of these behaviours operate in grey areas of the law where it is not clear whether legal definitions extend to the metaverse.

Ofcom has an enormous task ahead, but it is best placed to consider the law’s relationship to new technological developments and to inform Parliament. Updating our laws through the mechanisms proposed in Amendment 275A will provide clarity to the courts, judges, police and prosecution service. I urge the Minister to provide as full an answer as possible to the many questions I have posed. I am grateful to him for all the work he has been doing. If he cannot accept my amendment as worded, will he provide an assurance that he will return to this with a government amendment at Third Reading?

[Baroness Kidron (CB)]

My Lords, I will speak to Amendment 191A in my name. I also support Amendment 186A in the name of the noble Lord, Lord Moylan, Amendment 253 in the name of the noble Lord, Lord Clement-Jones, and Amendment 275A in the name of my noble friend Lady Finlay. I hope that my words will provide a certain level of reassurance to the noble Lord, Lord Moylan.

In Committee and on Report, the question was raised as to how to support the coronial system with information, education and professional development to keep pace with the impact of the fast-changing digital world. I very much welcome the Chief Coroner’s commitment to professional development for coroners but, as the Minister said, this is subject to funding. While it is right that the duty falls to the Chief Coroner to honour the independence and expert knowledge associated with his roles, this amendment seeks to support his duties with written guidance from Ofcom, which has no such funding issue since its work will be supported by a levy on regulated companies—a levy that I argue could usefully and desirably contribute to the new duties that benefit coroners and bereaved parents.

The role of a coroner is fundamental. They must know what preliminary questions to ask and how to triage the possibility that a child’s digital life is relevant. They must know that Ofcom is there as a resource and ally and how to activate its powers and support. They must know what to ask Ofcom for, how to analyse information they receive and what follow-up questions might be needed. Importantly, they must feel confident in making a determination and describing the way in which the use of a regulated service has contributed to a child’s death, in the case that that is indeed their finding. They must be able to identify learnings that might prevent similar tragedies happening in the future. Moreover, much of the research and information that Ofcom will gather in the course of its other duties could be usefully directed at coroners. All Amendment 191A would do is add to the list of reports that Ofcom has to produce with these issues in mind. In doing so, it would do the Chief Coroner the service of contributing to his own needs and plans for professional development.

I turn to Amendment 186A in the name of the noble Lord, Lord Moylan, who makes a very significant point in bringing it forward. Enormous effort goes into creating an aura of exceptionality for the tech sector, allowing it to avoid laws and regulations that routinely apply to other sectors. These are businesses that benefit from our laws, such as intellectual copyright or international tax law. However, they have negotiated a privileged position in which they have privatised the benefits of our attention and data while outsourcing most of the costs of their service to the public purse or, indeed, their users.

Terms and conditions are a way in which a company enters into a clear agreement with its users, who then “pay” for access with their attention and their data: two of the most valuable commodities in today’s digital society. I am very sympathetic to the noble Lord’s wish to reframe people, both adults and children, from a series of euphemisms that the sector employs—such as “users”, “community members”, “creators” or “participants”—to acknowledge their status as consumers who have rights and, in particular, the right to expect the product they use to be safe and for providers to be held accountable if it is not. I join the noble Lord in asserting that there are now six weeks before Third Reading. This is a very valuable suggestion that is worthy of government attention.

Amendment 253 in the name of the noble Lord, Lord Clement-Jones, puts forward a very strong recommendation of the pre-legislative committee. We were a bit bewildered and surprised that it was not taken up at the time, so I will be interested to hear what argument the Minister makes to exclude it, if indeed he does so. I say to him that I have already experienced the frustration of being bumped from one regulator to another. Although my time as an individual or the organisational time of a charity is minor in the picture we are discussing, it is costly in time and resources. I point to the time, resources and potential effectiveness of the regulatory regime. However well oiled and well funded the regulatory regime of the Online Safety Bill is, I do not think it will be as well oiled and well funded as those that it seeks to regulate.

I make it clear that I accept the arguments of not wanting to create a super-regulator or slow down or confuse existing regulators which each have their own responsibilities, but I feel that the noble Lord, Lord Clement-Jones, has approached this with more of a belt-and-braces approach rather than a whole realignment of regulators. He simply seeks to make it explicit that regulators can, should and do have a legal basis on which to work singularly or together when it suits them. As I indicated earlier, I cannot quite understand why that would not be desirable.

Finally, in what is truly a miscellaneous group, I will refer to the amendment in the name of my noble friend Lady Finlay. I support the intent of this amendment and sincerely hope that the Minister will be able to reassure us that this is already in the Bill and will be done by Ofcom under one duty or another. I hope that he will be able to point to something that includes this. I thank my noble friend for raising it, as it harks back to an amendment in Committee in my name that sought to establish that content deemed harmful in one format would be deemed harmful in all formats—whether synthetic, such as AI, the metaverse or augmented reality. As my noble friend alluded to, it also speaks to the debate we had last week in relation to the amendment from the noble Lord, Lord Clement-Jones, about provider content in the metaverse.

Online Safety Bill

Debate between Baroness Finlay of Llandaff and Baroness Kidron

Report stage
Wednesday 12th July 2023 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I am most grateful to the noble Lord, Lord Clement-Jones, for tabling the amendment. If I had been quicker, I would have added my name to it, because he may— I use the word “may” advisedly, because I am not sure—have identified quite a serious gap in terms of future-proofing. As far as I understand it, in a somewhat naive way, the amendment probes whether there is a gap between provider-generated content and user-generated content and whether provider-generated content could lead to a whole lot of ghastly stuff on the metaverse without any way of tackling it because it is deemed to have fallen outside the scope of the Bill.

I am grateful to Carnegie UK for having tried to talk me through this—it is pretty complicated. As a specific example, I understand that a “Decentraland” avatar pops up on gaming sites, and it is useful because it warns you about the dangers of gambling and what it can lead to. But then there is the problem about the backdrop to this avatar: at the moment, it seems to be against gambling, but you can see how those who have an interest in gambling would be quite happy to have the avatar look pretty hideous but have a backdrop of a really enticing casino with lots of lights and people streaming in, or whatever. I am not sure where that would fit, because it seems that this type of content would be provider-generated. When it comes to the metaverse and these new ways of interacting with 3D immersion, I am not clear that we have adequately caught within the Bill some of these potentially dangerous applications. So I hope that the Minister will be able to clarify it for us today and, if not, possibly to write between now and the next time that we debate this, because I have an amendment on future-proofing, but it is in a subsequent group.

[Baroness Kidron (CB)]

My Lords, I am interested to hear what the Minister says, but could he also explain to the House the difference in status of this sort of material in Part 5 versus Part 3? I believe that the Government brought in a lot of amendments that sorted it out and that many of us hoped were for the entire Bill, although we discovered, somewhat to our surprise, that they were only in Part 5. I would be interested if the Minister could expand on that.

Online Safety Bill

Debate between Baroness Finlay of Llandaff and Baroness Kidron

Committee stage
Tuesday 25th April 2023 Lords Chamber

[Baroness Kidron (CB)]

Far be it for me to suggest that all the amendments tabled by the noble Lord, Lord Moylan, are in the wrong place, but I think that Amendment 26 might have been better debated with the other amendments on age assurance.

On community moderation, I underscore the point that Ofcom must have a risk profile as part of its operations. When we get to that subject, let us understand what Ofcom intends to do with it—maybe we should instruct Ofcom a little about what we would like it to do with it for community moderation. I have a lot of sympathy—but do not think it is a get-out clause—with seeing some spaces as less risky, or, at least, for determining what risky looks like in online spaces, which is a different question. This issue belongs in the risk profile: it is not about taking things out; we have to build it into the Bill we have.

On age assurance and AV, I do not think that today is the day to discuss it in full. I disagree with the point that, because we are checking kids, we have to check ourselves—that is not where the technology is. Without descending into technical arguments, as the noble Lord, Lord Moylan, asked us not to, we will bring some of those issues forward.

The noble Lords, Lord Bethell and Lord Stevenson, and the right reverend Prelate the Bishop of Oxford have a package of amendments which are very widely supported across the Committee. They have put forward a schedule of age assurance that says what the rules of the road are. We must stop pretending that age assurance is something that is being invented now in this Bill. If you log into a website with your Facebook login, it shares your age—and that is used by 42% of people online. However, if you use an Apple login, it does not share your age, so I recommend using Apple—but, interestingly, it is harder to find that option on websites, because websites want to know your age.

So, first, we must not treat age assurance as if it has just been invented. Secondly, we need to start to have rules of the road, and ask what is acceptable, what is proportionate, and when we will have zero tolerance. Watching faces around the Committee, I say that I will accept zero tolerance for pornography and some other major subjects, but, for the most part, age assurance is something that we need to have regulated. Currently, it is being done to us rather than in any way that is transparent or agreed, and that is very problematic.

[Baroness Finlay of Llandaff (CB)]

My Lords, I hesitated to speak to the previous group of amendments, but I want to speak in support of the issue of risk that my noble friend Lady Kidron raised again in this group of amendments. I do not believe that noble Lords in the Committee want to cut down the amount of information and the ability to obtain information online. Rather, we came to the Bill wanting to avoid some of the really terrible harms promoted by some websites which hook into people’s vulnerability to becoming addicted to extremely harmful behaviours, which are harmful not only to themselves but to other people and, in particular, to children, who have no voice at all. I also have a concern about vulnerable people over the age of 18, and that may be something we will come to later in our discussions on the Bill.