Online Safety Bill

Baroness Harding of Winscombe Excerpts

Committee stage
Thursday 27th April 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, I support this group of amendments, so ably introduced by my noble friend and other noble Lords this afternoon.

I am not a lawyer and I would not say that I am particularly experienced in this business of legislating. I found this issue incredibly confusing. I hugely appreciate the briefings and discussions—I feel very privileged to have been included in them—with my noble friend the Minister, officials and the Secretary of State herself in their attempt to explain to a group of us why these amendments are not necessary. I was so determined to try to understand this properly that, yesterday, when I was due to travel to Surrey, I took all my papers with me. I got on the train at Waterloo and started to work my way through the main challenges that officials had presented.

The first challenge was that, fundamentally, these amendments cut across the Bill’s definitions of “primary priority content” and “priority content”. I tried to find them in the Bill. Unfortunately, in Clause 54, there is a definition of primary priority content. It says that, basically, primary priority content is what the Secretary of State says it is, and that content that is harmful to children is primary priority content. So I was none the wiser on Clause 54.

One of the further challenges that officials have given us is that apparently we, as a group of noble Lords, were confusing the difference between harm and risk. I then turned to Clause 205, which comes out with the priceless statement that a risk of harm should be read as a reference to harm—so maybe they are the same thing. I am still none the wiser.

Yesterday morning, I found myself playing what I can only describe as a parliamentary game of Mornington Crescent, as I went round and round in circles. Unfortunately, it was such a confusing game of Mornington Crescent that I forgot that I needed to change trains, ended up in Richmond instead of Redhill, and missed my meeting entirely. I am telling the Committee this story because, as the debate has shown, it is so important that we put in the Bill a definition of the harms that we are intending to legislate for.

I want to address the points made by the noble Baroness, Lady Fox. She said that we might not all agree on what harms are genuinely harmful for children. That is precisely why Parliament needs to decide this, rather than abdicate it to a regulator who, as other noble Lords said earlier today, is then put into a political space. It is the job of Parliament to decide what is dangerous for our children and what is not. That is the approach that we take in the physical world, and it should be the approach that we take in the online world. We should do that in broad categories, which is why the four Cs is such a powerful framework. I know that we are all attempting to predict the known unknowns, which is impossible, but this framework, which gives categories of harm, is clear that it can be updated, developed and, as my noble friend Lord Bethell, said, properly consulted on. We as parliamentarians should decide; that is the purpose of voting in Parliament.

I have a couple of questions for my noble friend the Minister. Does he agree that Parliament needs to decide what the categories of online harms are that the Bill is attempting to protect our children from? If he does, why is it not the four Cs? If he really thinks it is not the four Cs, will he bring back an alternative schedule of harms?

[Lord Allan of Hallam (LD)]

My Lords, I will echo the sentiments of the noble Baroness, Lady Harding, in my contribution to another very useful debate, which has brought to mind the good debate that we had on the first day in Committee, in response to the amendment tabled by the noble Lord, Lord Stevenson, in which we were seeking to get into the Bill what we are actually trying to do.

I thought that the noble Baroness, Lady Fox, was also welcoming additional clarity, specifically in the area of psychological harm, which I agree with. Certainly in its earlier incarnations, the Bill was scattered throughout with references, some of which have been removed, but they are very much open to interpretation. I hope that we will come back to that.

I was struck by the point made by the noble Lord, Lord Russell, around what took place in that coroner’s hearing. You had two different platforms with different interpretations of what they thought that their duty of care would be. That is very much the point. In my experience, platforms will follow what they are told to follow. The challenge is when each of them comes to their own individual view around what are often complex areas. There we saw platforms presenting different views about their risk assessments. If we clarify that for them through amendments such as these, we are doing everyone a favour.

I again compliment my noble friend Lady Benjamin for her work in this area. Her speech was also a model of clarity. If we can bring some of that clarity to the legislation and to explaining what we want, that will be an enormous service.

The noble Lord, Lord Knight, made some interesting points around how this would add value to the Bill, teasing out some of the specific gaps that we have there. I look forward to hearing the response on that.

I was interested in the comments from the noble Lord, Lord Bethell, on mobile phone penetration. We should all hold in common that we are not going back to a time BC—before connection. Our children will be connected, which creates the imperative for us to get this right. There has perhaps been a tendency for us to bury our heads in the sand, and occasionally you hear that still—it is almost as if we would wish this world away. However, the noble Baroness, Lady Kidron, is at the other end of the spectrum; she has come alive on this subject, precisely because she recognises that that will not happen. We are in a world where our children will be connected, so it is on us to figure out how we want those connections to work and to instruct the people who provide those connective services on what they should do. It is certainly not for us to imagine that somehow they will all go away. We will come to that in later groups when we talk about minimum ages; if younger children are online, there is a real issue around how we are going to deal with that.

The right reverend Prelate the Bishop of Oxford highlighted some really important challenges based on real experiences that families today are suffering—let us use the word as it should be—and made the case for clarity. I do not know how much we are allowed to talk in praise of EU legislation, but I am looking at the Digital Services Act—I have looked at a lot of EU legislation—and this Bill, and there is a certain clarity to EU regulation, particularly the process of adding recitals, which are attached to the law and explain what it is meant to do. That is sometimes missing here. I know that there are different legal traditions, but you can sometimes look at an EU regulation and the UK law and the former appears to be much clearer in its intent.

That brings me to the substance of my comments in response to this group, so ably introduced by the noble Baroness, Lady Kidron. I hope that the Government heed and recognise that, at present, no ordinary person can know what is happening in the Bill—other than, perhaps, the wife of the noble Lord, Lord Stevenson, who will read it for fun—and what we intend to do.

I was thinking back to the “2B or not 2B” debate we had earlier about the lack of clarity around something even as simple as the classification of services. I was also thinking that, if you ask what the Online Safety Bill does to restrict self-harm content, the answer would be this: if it is a small social media platform, it will probably be categorised as a 2B service, then we can look at Schedule 7, where it is prohibited from assisting suicide, but we might want to come back to some of the earlier clauses with the specific duties—and it will go on and on. As the noble Baroness, Lady Harding, described, you are leaping backwards and forwards in the Bill to try to understand what we are trying to do with the legislation. I think that is a genuine problem.

In effect, the Bill is Parliament setting out the terms of service for how we want Ofcom to regulate online services. We debated terms of service earlier. What is sauce for the goose is sauce for the gander. We are currently failing our own tests of simplicity and clarity on the terms of service that we will give to Ofcom.

As well as platforms, if ordinary people want to find out what is happening, then, just like those platforms with the terms of service, we are going to make them read hundreds of pages before they find out what this legislation is intended to do. We can and should make this simpler for children and parents. I was able to meet Ian Russell briefly at the end of our Second Reading debate. He has been an incredibly powerful and pragmatic voice on this. He is asking for reasonable things. I would love to be able to give a Bill to Ian Russell, and the other families that the right reverend Prelate the Bishop of Oxford referred to, that they can read and that tells them very clearly how Parliament has responded to their concerns. I think we are a long way short of that simple clarity today.

It would be extraordinarily important for service providers, as I already mentioned in response to the noble Lord, Lord Russell. They need that clarity, and we want to make sure that they have no reason to say, “I did not understand what I was being asked to do”. That should be from the biggest to the smallest, as the noble Lord, Lord Moylan, keeps rightly raising with us. Any small service provider should be able to very clearly and simply understand what we are intending to do, and putting more text into the Bill that does that would actually improve it. This is not about adding a whole load of new complications and the bells and whistles we have described but about providing clarity on our intention. Small service providers would benefit from that clarity.

The noble Baroness, Lady Ritchie, rightly raised the issue of the speed of the development of technology. Again, we do not want the small service provider in particular to think it has to go back and do a whole new legal review every time the technology changes. If we have a clear set of principles, it is much quicker and simpler for it to say, “I have developed a new feature. How does it match up against this list?”, rather than having to go to Clause 12, Clause 86, Clause 94 and backwards and forwards within the Bill.

It will be extraordinarily helpful for enforcement bodies such as Ofcom to have a yardstick—again, this takes us back to our debate on the first day—for its prioritisation, because it will have to prioritise. It will not be able to do everything, everywhere, all at once. If we put that prioritisation into the legislation, it will, frankly, save potential arguments between Parliament, the Government and Ofcom later on, when they have decided to prioritise X and we wanted them to prioritise Y. Let us all get aligned on what we are asking them to do up front.

Dare I say—the noble Baroness, Lady Harding, reminded me of this—that it may also be extraordinarily helpful for us as politicians so that we can understand the state of the law. I mean not just the people who are existing specialists or are becoming specialists in this area and taking part in this debate but the other hundreds of Members of both Houses, because this is interesting to everyone. I have experience of being in the other place, and every Member of the other place will have constituents coming to them, often with very tragic circumstances, and asking what Parliament has done. Again, if they have the Online Safety Bill as currently drafted, I think it is hard for any Member of Parliament to be able to say clearly, “This is what we have done”. With those words and that encouraging wind, I hope the Government are able to explain, if not in this way, that they have a commitment to ensuring that we have that clarity for everybody involved in this process.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

I am grateful to all noble Lords who have spoken on this group and for the clarity with which the noble Lord, Lord Stevenson, has concluded his remarks.

Amendments 20, 74, 93 and 123, tabled by the noble Baroness, Lady Kidron, would mean a significant revising of the Bill’s approach to content that is harmful to children. It would set a new schedule of harmful content and risk to children—the 4 Cs—on the face of the Bill and revise the criteria for user-to-user and search services carrying out child safety risk assessments.

I start by thanking the noble Baroness publicly—I have done so privately in our discussions—for her extensive engagement with the Government on these issues over recent weeks, along with my noble friends Lord Bethell and Lady Harding of Winscombe. I apologise that it has involved the noble Baroness, Lady Harding, missing her stop on the train. A previous discussion we had also very nearly delayed her mounting a horse, so I can tell your Lordships how she has devoted hours to this—as they all have over recent weeks. I would like to acknowledge their campaigning and the work of all organisations that the noble Baroness, Lady Kidron, listed at the start of her speech, as well as the families of people such as Olly Stephens and the many others that the right reverend Prelate the Bishop of Oxford mentioned.

I also reassure your Lordships that, in developing this legislation, the Government carried out extensive research and engagement with a wide range of interested parties. That included reviewing international best practice. We want this to be world-leading legislation, including the four Cs framework on the online risks of harm to children. The Government share the objectives that all noble Lords have echoed in making sure that children are protected from harm online. I was grateful to the noble Baroness, Lady Benjamin, for echoing the remarks I made earlier in Committee on this. I am glad we are on the same page, even if we are still looking at points of detail, as we should be.

As the noble Baroness, Lady Kidron, knows, it is the Government’s considered opinion that the Bill’s provisions already deliver these objectives. I know that she remains to be convinced, but I am grateful to her for our continuing discussions on that point, and for continuing to kick the tyres on this to make sure that this is indeed legislation of which we can be proud.

It is also clear that there is broad agreement across the House that the Bill should tackle harmful content to children such as content that promotes eating disorders, illegal behaviour such as grooming and risk factors for harm such as the method by which content is disseminated, and the frequency of alerts. I am pleased to be able to put on record that the Bill as drafted already does this in the Government’s opinion, and reflects the principles of the four Cs framework, covering each of those: content, conduct, contact and commercial or contract risks to children.

First, it is important to understand how the Bill defines content, because that question of definition has been a confusing factor in some of the discussions hitherto. When we talk in general terms about content, we mean the substance of a message. This has been the source of some confusion. The Bill defines “content”, for the purposes of this legislation, in Clause 207 extremely broadly as

“anything communicated by means of an internet service”.

Under this definition, in essence, all user communication and activity, including recommendations by an algorithm, interactions in the metaverse, live streams, and so on, is facilitated by “content”. So, for example, unwanted and inappropriate contact from an adult to a child would be treated by the Bill as content harm. The distinctions that the four Cs make between content, conduct and contact risks is therefore not necessary. For the purposes of the Bill, they are all content risks.

Secondly, I know that there have been concerns about whether the specific risks highlighted in the new schedule will be addressed by the Bill.

[Baroness Harding of Winscombe (Con)]

Where are the commercial harms? I cannot totally get my head around my noble friend’s definition of content. I can sort of understand how it extends to conduct and contact, but it does not sound as though it could extend to the algorithm itself that is driving the addictive behaviour that most of us are most worried about.

[Lord Knight of Weymouth (Lab)]

In that vein, will the noble Lord clarify whether that definition of content does not include paid-for content?