Online Safety Bill

Debate between Baroness Fraser of Craigmaddie and Baroness Kidron

Committee stage
Tuesday 16th May 2023 Lords Chamber

[Baroness Kidron (CB)]

I put on record that the withdrawal of Part 3 of the Digital Economy Act 2017 will be greeted with happiness only should the full schedule of AV and harms be put into the Bill. I must say that because the noble Baroness, Lady Benjamin, is not in her place. She worked very hard for that piece of legislation.

[Baroness Fraser of Craigmaddie (Con)]

My Lords, I thank the Minister for his response. I take it as a win that we have been offered a meeting and further discussion, and the noble Lord, Lord Foulkes, agreeing with every word I said. I hope we can continue in this happy vein in my time in this House.

The suggestion from the noble Lord, Lord Stevenson, of a table is a welcome one. Something that has interested me is that some of the offences the Minister mentioned were open goals: there were holes leaving it open in Northern Ireland and not in England and Wales, or whatever. For example, epilepsy trolling is already a criminal offence in Scotland, but I am not sure that was appreciated when we started this discussion.

I look forward to the meeting and I thank the Minister for his response. I am still unconvinced that we have the right consultation process for any devolved authority wanting to apply for a subordinate devolved Administration to be included under this regime.

It concerns me that the Minister talked about leaving requesting data that Ofcom deemed to be appropriate. The feeling on the ground is that Ofcom, which is based in London, may not understand what is or is not necessarily appropriate in the devolved Administrations. The fact that in other legislation—for example, on broadcasting—it is mandated that it is broken down nation by nation is really important. It is even more important because of the interplay between the devolved and the reserved matters. The fact that there is no equivalent Minister in the Scottish Government to talk about digital and online safety things with means that a whole raft of different people will need to have relationships with Ofcom who have not hitherto.

I thank the Minister. On that note, I withdraw my amendment.

Online Safety Bill

Debate between Baroness Fraser of Craigmaddie and Baroness Kidron

Committee stage
Tuesday 9th May 2023 Lords Chamber

[Baroness Kidron (CB)]

My Lords, I thank the noble Lord, Lord Moylan, for his words—I thought I was experiencing time travel there—and am sympathetic to many of the issues that he has raised, although I think that some of the other amendments in the group tackle those issues in a slightly different way.

I support Amendments 44 and 158 in the name of the right reverend Prelate the Bishop of Oxford. Requiring a post-rollout assessment to ensure that the triple shield acts as we are told it will seems to be a classic part of any regulatory regime that is fit for purpose: it needs to assess whether the system is indeed working. The triple shield is an entirely new concept, and none of the burgeoning regulatory systems around the world is taking this approach, so I hope that both the Government and Ofcom welcome this very targeted and important addition to the Bill.

I will also say a few words about Amendments 154 and 218. It seems to me that, in moving away from legal but harmful—which as a member of the pre-legislative committee I supported, under certain conditionality that has not been met, but none the less I did support it—not enough time and thought have been given to the implications of that. I do not understand, and would be grateful to the Minister if he could help me understand, how Ofcom is to determine whether a company has met its own terms and conditions—and by any means, not only by the means of a risk assessment.

I want to make a point that the noble Baroness, Lady Healy, made the other day—but I want to make it again. Taking legal but harmful out and having no assessment of whether a company has met its general safety duties leaves the child safety duties as an island. They used to be something that was added on to a general system of safety; now they are the first and only port of call. Again, because of the way that legal but harmful fell out of the Bill, I am not sure whether we have totally understood how the child risk assessments sit without a generally cleaned up or risk-assessed digital environment.

Finally, I will speak in support of Amendment 160, which would have Ofcom say what “adequate and appropriate” terms are. To a large degree, that is my approach to the problem that the noble Lord, Lord Moylan, spoke about: let Parliament and the regulator determine what we want to see—as was said on the data protection system, that is how it is—and let us have minimum standards that we can rightly expect, based on UK law, as the noble Lord suggested.

I am not against the triple shield per se, but it radically replaced an entire regime of assessment, enforcement and review. I think that some of the provisions in this group really beg the Government’s attention, in order to make sure that there are no gaping holes in the regime.

[Baroness Fraser of Craigmaddie (Con)]

My Lords, I will speak to Amendments 44 and 158 in the name of the right reverend Prelate the Bishop of Oxford. I also note my support for the amendments in the name of the noble Lord, Lord Stevenson of Balmacara, to ensure the minimum standard for a platform’s terms of service. My noble friend Lord Moylan has just given an excellent speech on the reasons why these amendments should be considered.

I am aware that the next group of amendments relates to the so-called user empowerment tools, so it seems slightly bizarre to be speaking to Amendment 44, which seeks to ensure that these user empowerment tools actually work as the Government hope they will, and Amendment 158, which seeks to risk assess whether providers’ terms of service duties do what they say and report this to Ofcom. Now that the Government have watered down the clauses that deal with protection for adults, like other noble Lords, I am not necessarily against the Government’s replacement—the triple shield—but I believe that it needs a little tightening up to ensure that it works properly. These amendments seem a reasonable way of doing just that. They would ensure greater protection for adults without impinging on others’ freedom of expression.

The triple shield relies heavily on companies’ enforcement of terms of service and other vaguely worded duties, as the noble Viscount mentioned, that user empowerment tools need to be “easily accessible” and “effective”—whatever that means. Unlike with other duties in the Bill, such as those on illegal content and children’s duties, there is no mechanism to assess whether these new measures are working; whether the way companies are carrying out these duties is in accordance with the criteria set out; and whether they are indeed infringing freedom of expression. Risk assessments are vital to doing just that, because they are vital to understanding the environment in which services operate. They can reduce bureaucracy by allowing companies to rule out risks which are not relevant to them, and they can increase user safety by revealing new risks, thereby enabling the future-proofing of a regime. Can the Minister give us an answer today as to why risk assessment duties on these two strands of the triple shield—terms of service and user empowerment tools—were removed? If freedom of speech played a part in this, perhaps he could elaborate why he thinks undertaking a risk assessment is in any way a threat.

Without these amendments, the Bill cannot be said to be a complete risk management regime. Companies will, in effect, be marking their own homework when designing their terms of service and putting their finger in the air when it comes to user empowerment tools. There will be no requirement for them to explain either to Ofcom or indeed to service users the true nature of the harms that occur on their service, nor the rationale behind any decisions they might make in these two fundamental parts of their service.

Since the Government are relying so heavily on their triple shield to ensure protection for adults, to me, not reviewing two of the three strands that make up the triple shield seems like fashioning a three-legged stool with completely uneven legs: a stool that will not stand up to the slightest pressure when used. Therefore, I urge the Minister to look again and consider reinstating these protections in the Bill.

--- Later in debate ---

[Baroness Fraser of Craigmaddie (Con)]

My Lords, I contribute to this debate on the basis of my interests as laid out in the register: as chief executive of Cerebral Palsy Scotland; my work with the Scottish Government on people with neurological conditions; and as a trustee of the Neurological Alliance of Scotland. It is an honour to follow the right reverend Prelate, whose point about the inequality people experience in the online world is well made. I want to be clear that when I talk about ensuring online protection for people with disabilities, I do not assume that all adults with disabilities are unable to protect themselves. As the right reverend Prelate and the noble Lord, Lord Griffiths of Burry Port, pointed out, survey after survey demonstrates how offline vulnerabilities translate into the online world, and Ofcom’s own evidence suggests that people with physical disabilities, learning disabilities, autism, mental health issues and others can be classed as being especially vulnerable online.

The Government recognise that vulnerable groups are at greater risk online, because in its previous incarnations, this Bill included greater protection for such groups. We spoke in a previous debate about the removal of the “legal but harmful” provisions and the imposition of the triple shield. The question remains from that debate: does the triple shield provide sufficient protection for these vulnerable groups?

As I have said previously this afternoon, user empowerment tools are the third leg of the triple shield, but they put all the onus on users and no responsibility on the platforms to prevent individuals’ exposure to harm. Amendments 36, 37 and 38A, in the name of the noble Lord, Lord Clement-Jones, seek simply to make the default setting for the proposed user empowerment tools to be “on”. I do not pretend to understand how, technically, this will happen, but it clearly can, because the Bill requires platforms to ensure that this is the default position to ensure protection for children. The default position in those amendments protects all vulnerable people, and that is why I support them—unlike, I fear, Amendment 34 from my noble friend Lady Morgan, which lists specific categories of vulnerable adults. I would prefer that all vulnerable people be protected from being exposed to harm in the first place.

Nobody’s freedom of expression is affected in any way by this default setting, but the overall impact on vulnerable individuals in the online environment would, I assure your Lordships, be significant. Nobody’s ability to explore the internet or to go into those strange rooms at the back of bookshops that the noble Baroness, Lady Fox, was talking about would be curtailed. The Government have already stated that individuals will have the capacity to seek out these tools and turn them on and off, and that they must be easily accessible. So individuals with capacity will be able to find the settings and set them to explore whatever legal content they choose.

However, is it not our duty to remember those who do not have capacity? What about adults with learning difficulties and people at a point of crisis—the noble Baroness, Lady Parminter, movingly spoke about people with eating disorders—who might not be able to turn to those tools due to their affected mental state, or who may not realise that what they are seeing is intended to manipulate? Protecting those users from encountering such content in the first place surely tips the balance in favour of turning the tools on by default.

I am very sad that the noble Baroness, Lady Campbell of Surbiton, cannot be here, because her contribution to this debate would be powerful. But, from her enormous experience of work with disabled people, this is her top priority for the Bill.

In preparing to speak to these amendments, I looked back to the inquiry in the other place into online abuse and the experience of disabled people that was prompted by Katie Price’s petition after the shocking abuse directed at her disabled son Harvey. In April 2019 the Government responded to that inquiry by saying that they were

“aware of the disproportionate abuse experienced by disabled people online and the damage such abuse can have on people’s lives, career and health”—

and the Government pledged to act.

The internet is a really important place for disabled people, and I urge the Government to ensure that it remains a safe place for all of us and to accept these amendments that would ensure the default settings are set to on.

[Baroness Kidron (CB)]

My Lords, I rise to support the amendments in the name of the noble Baroness, Lady Morgan. I do so somewhat reluctantly, not because I disagree with anything that she said but because I would not necessarily start from here. I want to briefly say three very quick things about that and then move on to Amendments 42 and 45, which are also in this group.

We already have default settings, and we are pretending that this is a zero-sum game. The default settings at the moment are profiling us, filtering us and rewarding us; and, as the right reverend Prelate said in his immensely powerful speech, we are not starting at zero. So I do share the concerns of the noble Baroness, Lady Fox, about who gets to choose—some of us on this side of the debate are saying, “Can we define who gets to choose? Can Parliament choose? Can Ofcom choose? Can we not leave this in the hands of tech companies?” So on that I fully agree. But we do have default settings already, and this is a question of looking at some of the features as well as the content. It is a weakness of the Government’s argument that it keeps coming back to the content rather than the features, which are the main driver of what we see.

The second thing I want to say—this is where I am anxious about the triple shield—is: does not knowing you are being abused mean that you are not abused? I say that as someone with some considerable personal abuse. I have my filter on and I am not on social media, but my children, my colleagues and some of the people I work with around the world do see what is said about me—it is a reputational thing, and for some of them it is a hurtful thing, and that is why I am reluctant in my support. However, I do agree with all the speakers who have said that our duty is to start with those people who are most vulnerable.

I want to mention the words of one of the 5Rights advisers—a 17 year-old girl—who, when invited to identify changes and redesign the internet, said, “Couldn’t we do all the kind things first and gradually get to the horrible ones?” I think that this could be a model for us in this Chamber. So, I do support the noble Baroness.

I want to move briefly to Amendment 42, which would see an arbitrary list of protected characteristics replaced by the Equality Act 2010. This has a lot to do with a previous discussion we had about human rights, and I want to say urgently to the Minister that the offer of the Online Safety Bill is not to downgrade human rights, children’s rights and UK law, but rather to bring forward a smart and comprehensive regime to hold companies accountable for human rights, children’s rights and UK law. We do not want to have a little list of some of our children’s rights or of some of our legislation; we would like our legislation and our rights embedded in the Bill.

I have to speak for Amendment 45. I express my gratitude to the noble Lord, Lord Stevenson, for tabling it. It would require Ofcom, six months after the event, to ask whether children need these user empowerment tools. It is hugely important. I remind the Committee that children have not only rights but an evolving capacity to be out there in the world. As I said earlier, the children’s safety duties have a cliff-edge feel to them. As children go out into the world on the cusp of adulthood, maybe they would like to have some of these user empowerment tools.