Online Safety Bill

Baroness Harding of Winscombe Excerpts

Report stage
Wednesday 19th July 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, I promise I will be brief. I, too, welcome what the Minister has said and the amendments that the Government have proposed. This is the full package which we have been seeking in a number of areas, so I am very pleased to see it. My noble friend Lady Newlove and the noble Baroness, Lady Kidron, are not in their places, but I know I speak for both of them in wanting to register that, although the thoughtful and slow-and-steady approach has some benefits, there also some real costs to it. The UK Safer Internet Centre estimates that there will be some 340,000 individuals in the UK who will have no recourse for action if the platforms complaints mechanism does not work for them in the next two years. That is quite a large number of people, so I have one very simple question for the Minister: if I have exhausted the complaints procedure with an existing platform in the next two years, where do I go? I cannot go to Ofcom. My noble friend Lord Grade was very clear in front of the committee I sit on that it is not Ofcom’s job. Where do I go if I have a complaint that I cannot get resolved in the next two years?

[Lord Clement-Jones (LD)]

My Lords, I declare an interest as chair of Trust Alliance Group, which operates the energy and communications ombudsman schemes, so I have a particular interest in the operation of these ADR schemes. I thank the Minister for the flexibility that he has shown in the provision about the report by Ofcom and in having backstop powers for the Secretary of State to introduce such a scheme.

Of course, I understand that the noble Baroness, Lady Newlove, and the UK Safer Internet Centre are very disappointed that this is not going to come into effect immediately, but there are advantages in not setting out the scheme at this very early point before we know what some of the issues arising are. I believe that Ofcom will definitely want to institute such a scheme, but it may be that, in the initial stages, working out the exact architecture is going to be necessary. Of course, I would have preferred to have a mandated scheme, in the sense that the report will look not at the “whether” but the “how”, but I believe that at the end of the day it will absolutely obvious that there needs to be such an ADR scheme in order to provide the kind of redress the noble Baroness, Lady Harding, was talking about.

I also agree with noble Baroness, Lady Morgan, that the kinds of complaints that this would cover should include fraudulent adverts. I very much hope that the Minister will be able to answer the questions that both noble Baronesses asked. As my noble friend said, will he reassure us that the department and Ofcom will not take their foot off the pedal, whatever the Bill may say?

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Moved by

[Baroness Harding of Winscombe]

240: Clause 82, page 74, line 25, leave out “presented by content”
Member’s explanatory statement
This amendment ensures that Ofcom is empowered to consider harms presented by features, functionalities, behaviours and the design and operation of services not just by content.

[Baroness Harding of Winscombe (Con)]

My Lords, if I may, I shall speak very briefly, in the absence of my noble friend Lady Kidron, and because I am one of the signatories of this amendment, alongside the noble Lord, Lord Stevenson, and the right reverend Prelate the Bishop of Oxford. Amendment 240, together with a number of amendments that we will be debating today, turns on a fundamental issue that we have not yet resolved.

I came in this morning being told that we would be voting on this amendment and that other amendments later today would be consequential—I am a novice at this level of parliamentary procedure, so forgive me if I have got myself confused during the day—but I now understand that my noble friend considers this amendment to be consequential but, strangely, the amendments right at the end of the day are not. I just wanted to flag to the House that they all cover the same fundamental issue of whether harms can be unrelated to content, whether the harms of the online world can be to do with functionality—the systems and processes that drive the addiction that causes so much harm to our children.

It is a fundamental disagreement. I pay tribute to the amount of time the department, the Secretary of State and my noble friend have spent on it, but it is not yet resolved and, although I understand that I should now say that I beg leave to move the amendment formally, I just wanted to mark, with apologies, the necessity, most likely, of having to bring the same issue back to vote on later today.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, His Majesty’s Government indeed agree that this is consequential on the other amendments, including Amendment 35, which the noble Baroness, Lady Kidron, previously moved at Report. We disagreed with them, but we lost that vote; this is consequential, and we will not force a Division on it.

We will have further opportunity to debate the fundamental issues that lie behind it, to which my noble friend Lady Harding just referred. Some of the amendments on which we may divide later, the noble Baroness, Lady Kidron, tabled after defeating the Government the other day, so we cannot treat them as consequential. We look forward to debating them; I will urge noble Lords not to vote for them, but we will have opportunity to discuss them later.

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[Lord Kamall (Con)]

My Lords, I rise to speak in favour of my noble friend Lord Moylan’s amendment. Given that I understand he is not going to press it, and while I see Amendment 255 as the ideal amendment, I thank the noble Lords, Lord Stevenson and Lord Clement- Jones, for their Amendments 256, 257 and 259, and the noble Lords, Lord Clement-Jones and Lord Allan of Hallam, for Amendments 258 and 258ZA.

I will try to be as brief as I can. I think about two principles—unintended consequences and the history of technology transfer. The point about technology transfer is that once a technology is used it becomes available to other people quickly, even bad guys, whether that was intended or not. There is obviously formal technology transfer, where you have agreement or knowledge transfer via foreign investment, but let us think about the Cold War and some of the great technological developments—atomic secrets, Concorde and the space shuttle. In no time at all, the other side had that access, and that was before the advent of the internet.

If we are to open a door for access to encrypted messages, that technology will be available to the bad guys in no time at all, and they will use it against dissidents, many of whom will be in contact with journalists and human rights organisations in this country and elsewhere. Therefore, the unintended consequence may well be that in seeking to protect children in this country by accessing encrypted messages or unencrypted messages, we may well be damaging the childhoods of children in other countries when their parents, who are dissidents, are suddenly taken away and maybe the whole family is wiped out. Let us be careful about those unintended consequences.

I also welcome my noble friend Lord Parkinson’s amendments about ensuring journalistic integrity, such as Amendment 257D and others. They are important. However, we must remember that once these technologies are available, everyone has a price and that technology will be transferred to the bad guys.

Given that my noble friend Lord Moylan will not press Amendment 255, let us talk about some of the other amendments—I will make some general points rather than go into specifics, as many noble Lords have raised these points. These amendments are sub-optimal, but at least there is some accountability for Ofcom being able to use this power and using it sensibly and proportionately. One of the things that has run throughout this Bill and other Bills is “who regulates the regulators?” and ensuring that regulators are accountable. The amendments proposed by the noble Lords, Lord Stevenson and Lord Clement-Jones, and by the noble Lords, Lord Clement-Jones and Lord Allan of Hallam, go some way towards ensuring that safeguards are in place. If the Government are not prepared to have an explicit statement that they will not allow access to encrypted messages, I hope that there will be some support for the noble Lords’ amendments.

[Baroness Harding of Winscombe (Con)]

My Lords, I promise to speak very briefly. I welcome the Government’s amendments. I particularly welcome that they appear to mirror partly some of the safeguards that are embedded in the Investigatory Powers Act 2016.

I have one question for my noble friend the Minister about the wording, “a skilled person”. I am worried that “a skilled person” is a very vague term. I have been taken all through the course of this Bill by the comparison with the Investigatory Powers Act and the need to think carefully about how we balance the importance of privacy with the imperative of protecting our children and being able to track down the most evil and wicked perpetrators online. That is very similar to the debates that we had here several years ago on the Investigatory Powers Act.

The IPA created the Technical Advisory Board. It is not a decision-making body. Its purpose is to advise the Investigatory Powers Commissioner and judicial commissioners on the impact of changing technology and the development of techniques to use investigatory powers while maintaining privacy. It is an expert panel constituted to advise the regulator—in this case, the judicial commissioner—specifically on technology interventions that must balance this really difficult trade-off between privacy and child protection. Why have we not followed the same recipe? Rather than having a skilled person, why would we not have a technology advisory panel of a similar standing where it is clear to all who the members are. Those members would be required to produce a regular report. It might not need to be as regular as the IPA one, but it would just take what the Government have already laid one step further towards institutionalising the independent check that is really important if these Ofcom powers were ever to be used.

[Baroness Stowell of Beeston (Con)]

My Lords, I added my name to some amendments on this issue in Committee. I have not done so on Report, not least because I have been so occupied with other things and have not had the time to focus on this. However, I remain concerned about this part of the Bill. I am sympathetic to my noble friend Lord Moylan’s Amendment 255, but listening to this debate and studying all the amendments in this group, I am a little confused and so have some simple questions.

First, I heard my noble friend the Minister say that the Government have no intention to require the platforms to carry out general monitoring, but is that now specific in any of the amendments that he has tabled? Regarding the amendments which would bring further safeguards around the oversight of Ofcom’s use of this power, like my noble friend Lady Harding, I have always been concerned that the oversight approach should be in line with that for the Investigatory Powers Act and could never understand why it was not in the original version of the Bill. Like her, I am pleased that the Government have tabled some amendments, but I am not yet convinced that they go far enough.

That leads me to the amendments that have been tabled by the noble Lords, Lord Stevenson and Lord Clement-Jones, and particularly that in the name of the noble Lord, Lord Allan of Hallam. As his noble friend Lord Clement-Jones has added his name to it, perhaps he could answer my question when he gets up. Would the safeguards that are outlined there—the introduction of the Information Commissioner—meet the concerns of the big tech companies? Do we know whether it would meet their needs and therefore lead them not to feel it necessary to withdraw their services from the UK? I am keen to understand that.

There is another thing that might be of benefit for anyone listening to this debate who is not steeped in the detail of this Bill, and I look to any of those winding up to answer it—including my noble friend the Minister. Is this an end to end-to-end encryption? Is that what is happening in this Bill? Or is this about ensuring that what is already permissible in terms of the authorities being able to use their powers to go after suspected criminals is somehow codified in this Bill to make sure it has proper safeguards around it? That is still not clear. It would be very helpful to get that clarity from my noble friend, or others.

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Moved by

[Baroness Harding of Winscombe]

281BA: Clause 208, page 175, line 5, at end insert—
“(3A) In this Act “functionality”, in relation to a regulated service, includes the design of systems and processes that engage or impact on users, particularly algorithms.”Member’s explanatory statement
This amendment clarifies the role that system design can impact on outcomes on users in light of the requirement for systems to be safe by design.

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[Baroness Harding of Winscombe (Con)]

My Lords, I note that the noble Lord, Lord Stevenson, is no longer in his place, but I promise to still try to live by his admonition to all of us to speak briefly.

I will speak to Amendments 281BA, 281FA, 286A and 281F, which has already been debated but is central to this issue. These amendments aim to fix a problem we repeatedly raised in Committee and on Report. They are also in the name of the noble Baroness, Lady Kidron, and the noble Lords, Lord Stevenson and Lord Clement-Jones, and build on amendments in Committee laid by the noble Lord, Lord Russell, my noble friend Lord Bethell and the right reverend Prelate the Bishop of Oxford. This issue has broad support across the whole House.

The problem these amendments seek to solve is that, while the Government have consistently asserted that this is a systems and processes Bill, the Bill is constructed in a manner that focuses on content. Because this is a rerun of previous debates, I will try to keep my remarks short, but I want to be clear about why this is a real issue.

I am expecting my noble friend the Minister to say, as he has done before, that this is all covered; we are just seeing shadows, we are reading the Bill wrong and the harms that we are most concerned about are genuinely in the Bill. But I really struggle to understand why, if they are in the Bill, stating them clearly on the face of the Bill creates the legal uncertainty that seems to be the Government’s favourite problem with each of the amendments we have been raising today.

My noble friend—sorry, my friend—the noble Baroness, Lady Kidron, commissioned a legal opinion that looked at the statements from the Government and compared it to the text in the Bill. That opinion, like that of the many noble Lords I have just mentioned, is that the current language in the Bill about features and functionalities only pertains as far as it relates to harmful content. All roads in this game of Mornington Crescent lead back to content.

Harmful content is set out in a schedule to the Bill, and this set of amendments ensures that the design of services, irrespective of content, is required to be safe by design. If the Government were correct in their assertion that this is already covered, then these amendments really should not pose any threat at all, and I have yet to hear the Government enunciate what the real legal uncertainty actually is in stating that harm can come from functionality, not just from content.

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, this is not just a content Bill. The Government have always been clear that the way in which a service is designed and operated, including its features and functionalities, can have a significant impact on the risk of harm to a user. That is why the Bill already explicitly requires providers to ensure their services are safe by design and to address the risks that arise from features and functionalities.

The Government have recognised the concerns which noble Lords have voiced throughout our scrutiny of the Bill, and those which predated the scrutiny of it. We have tabled a number of amendments to make it even more explicit that these elements are covered by the Bill. We have tabled the new introductory Clause 1, which makes it clear that duties on providers are aimed at ensuring that services are safe by design. It also highlights that obligations on services extend to the design and operation of the service. These obligations ensure that the consideration of risks associated with the business model of a service is a fundamental aspect of the Bill.

My noble friend Baroness Harding of Winscombe worried that we had made the Bill worse by adding this. The new clause was a collaborative one, which we have inserted while the Bill has been before your Lordships’ House. Let me reassure her and other noble Lords as we conclude Report that we have not made it worse by so doing. The Bill will require services to take a safety by design approach to the design and operation of their services. We have always been clear that this will be crucial to compliance with the legislation. The new introductory Clause 1 makes this explicit as an overarching objective of the Bill. The introductory clause does not introduce any new concepts; it is an accurate summary of the key provisions and objectives of the Bill and, to that end, the framework and introductory statement are entirely compatible.

We also tabled amendments—which we debated last Monday—to Clause 209. These make it clear that functionalities contribute to the risk of harm to users, and that combinations of functionality may cumulatively drive up the level of risk. Amendment 281BA would amend the meaning of “functionality” within the Bill, so that it includes any system or process which affects users. This presents a number of concerns. First, such a broad interpretation would mean that any service in scope of the Bill would need to consider the risk of any feature or functionality, including ones that are positive for users’ online experience. That could include, for example, processes designed for optimising the interface depending on the user’s device and language settings. The amendment would increase the burden on service providers under the existing illegal content and child safety duties and would dilute their focus on genuinely risky functionality and design.

Second, by duplicating the reference to systems, processes and algorithms elsewhere in the Bill, it implies that the existing references in the Bill to the design of a service or to algorithms must be intended to capture matters not covered by the proposed new definition of “functionality”. This would suggest that references to systems and processes, and algorithms, mentioned elsewhere in the Bill, cover only systems, processes or algorithms which do not have an impact on users. That risks undermining the effectiveness of the existing duties and the protections for users, including children.

Amendment 268A introduces a further interpretation of features and functionality in the general interpretation clause. This duplicates the overarching interpretation of functionality in Clause 208 and, in so doing, introduces legal and regulatory uncertainty, which in turn risks weakening the existing duties. I hope that sets out for my noble friend Lady Harding and others our legal concerns here.

Amendment 281FA seeks to add to the interpretation of harm in Clause 209 by clarifying the scenarios in which harm may arise, specifically from services, systems and processes. This has a number of concerning effects. First, it states that harm can arise solely from a system and process, but a design choice does not in isolation harm a user. For example, the decision to use algorithms, or even the algorithm itself, is not what causes harm to a user—it is the fact that harmful content may be pushed to a user, or content pushed in such a manner that is harmful, for example repeatedly and in volume. That is already addressed comprehensively in the Bill, including in the child safety risk assessment duties.

Secondly, noble Lords should be aware that the drafting of the amendment has the effect of saying that harm can arise from proposed new paragraphs (a) (b) and (c)—

[Baroness Harding of Winscombe (Con)]

Can I just double-check what my noble friend has just said? I was lulled into a possibly false sense of security until we got to the point where he said “harmful” and then the dreaded word “content”. Does he accept that there can be harm without there needing to be content?

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[Baroness Harding of Winscombe (Con)]

My Lords, being the understudy for the noble Baroness, Lady Kidron, is quite a stressful thing. I am, however, reliably informed that she is currently offline in the White House, but I know that she will scrutinise everything I say afterwards and that I will receive a detailed school report tomorrow.

I am extremely grateful to my noble friend the Minister for how he has just summed up, but I would point out two things in response. The first is the circularity of the legal uncertainty. What I think I have heard is that we are trying to insert into the Bill some clarity because we do not think it is clear, but the Government’s concern is that by inserting clarity, we then imply that there was not clarity in the rest of the Bill, which then creates the legal uncertainty—and round we go. I am not convinced that we have really solved that problem, but I may be one step further towards understanding why the Government think that it is a problem. I think we have to keep exploring that and properly bottom it out.

My second point is about what I think will for evermore be known as the marshmallow problem. We have just rehearsed across the House a really heartfelt concern that just because we cannot imagine it today, it does not mean that there will not be functionality that causes enormous harm which does not link back to a marshmallow, multiple marshmallows or any other form of content.

Those two big issues are the ones we need to keep discussing: what is really causing the legal uncertainty and how we can be confident that unimaginable harms from unimaginable functionality are genuinely going to be captured in the Bill. Provided that we can continue, maybe it is entirely fitting at the end of what I think has been an extraordinarily collaborative Report, Committee and whole process of the Bill going through this House—which I have felt incredibly proud and privileged to be a part of—that we end with a commitment to continue said collaborative process. With that, I beg leave to withdraw the amendment.

Amendment 281BA withdrawn.

Online Safety Bill

Baroness Harding of Winscombe Excerpts

Report stage
Monday 17th July 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, I will speak briefly on a couple of amendments and pick up from where the noble Lord, Lord Allan, just finished on Amendment 186A. I associate myself with all the comments that the noble Baroness, Lady Kidron, made on her Amendment 191A. As ever, she introduced the amendment so brilliantly that there is no need for me to add anything other than my wholehearted support.

I will briefly reference Amendment 253 from the noble Lord, Lord Clement-Jones. Both his amendment and my noble friend Lord Moylan’s point to one of the challenges about regulating the digital world, which is that it touches everything. We oscillate between wanting to compartmentalise the digital and recognising that it is interconnected to everything. That is the same challenge faced by every organisation that is trying to digitise: do you ring-fence or recognise that it touches everything? I am very supportive of the principles behind Amendment 253 precisely because, in the end, it does touch everything. It is hugely important that, even though this Bill and others still to come are creating an extraordinarily powerful single regulator in the form of Ofcom, we also recognise the interconnectivity of the regulatory landscape. The amendment is very well placed, and I hope my noble friend the Minister looks favourably on it and its heritage from the pre-legislative scrutiny committee.

I will briefly add my thoughts on Amendment 186A in this miscellaneous group. It feels very much as if we are having a Committee debate on this amendment, and I thank my noble friend Lord Moylan for introducing it. He raises a hugely important point, and I am incredibly sympathetic to the logic he set out.

In this area the digital world operates differently from the physical world, and we do not have the right balance at all between the powers of the big companies and consumer rights. I am completely with my noble friend in the spirit in which he introduced the amendment but, together with the noble Lord, Lord Allan, I think it would be better tackled in the Digital Markets, Competition and Consumers Bill, precisely because it is much broader than online safety. This fundamentally touches the issue of consumer rights in the digital world and I am worried that, if we are not careful, we will do something with the very best intentions that actually makes things slightly worse.

I worry that the terms and conditions of user-to-user services are incomprehensible to consumers today. Enshrining it as a contract in law might, in some cases, make it worse. Today, when user-to-user services have used our data for something, they are keen to tell us that we agreed to it because it was in their terms of service. My noble friend opens up a really important issue to which we should give proper attention when the Digital Markets, Competition and Consumers Bill arrives in the House. It is genuinely not too late to address that, as it is working its way through the Commons now. I thank my noble friend for introducing the amendment, because we should all have thought of the issue earlier, but it is much broader than online safety.

[Lord Clement-Jones (LD)]

My Lords, even by previous standards, this is the most miscellaneous of miscellaneous groups. We have ranged very broadly. I will speak first to Amendment 191A from the noble Baroness, Lady Kidron, which was so well spoken to by her and by the noble Baroness, Lady Harding. It is common sense, and my noble friend Lord Allan, as ever, put his finger on it: it is not as if coroners are going to come across this every day of the week; they need this kind of guidance. The Minister has introduced his amendments on this, and we need to reduce those to an understandable code for coroners and bereaved parents. I defy anybody, apart from about three Members of this House, to describe in any detail how the information notices will interlock and operate. I could probably name those Members off the top of my head. That demonstrates why we need such a code of practice. It speaks for itself.

I am hugely sympathetic to Amendment 275A in the name of the noble Baroness, Lady Finlay, who asked a series of important questions. The Minister said at col. 1773 that he would follow up with further information on the responsibility of private providers for their content. This is a real, live issue. The noble Baroness, Lady Kidron, put it right: we hope fervently that the Bill covers the issue. I do not know how many debates about future-proofing we have had on the Bill but each time, including in that last debate, we have not quite been reassured enough that we are covering the metaverse and provider content in the way we should be. I hope that this time the Minister can give us definitive chapter and verse that will help to settle the horses, so to speak, because that is exactly what the very good amendment in the name of the noble Baroness, Lady Finlay, was about.

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For that reason, I again ask the Government, as a minimum, to accept the shorter date that was proposed or perhaps to think again before Third Reading.

[Baroness Harding of Winscombe (Con)]

My Lords, I associate myself with my noble friend Lady Fraser of Craigmaddie’s incredibly well-made points. I learned a long time ago that, when people speak very softly and say they have a very small point to make, they are often about to deliver a zinger. She really did; it was hugely powerful. I will say no more than that I wholeheartedly agree with her; thank you for helping us to understand the issue properly.

I will speak in more detail about access to data for researchers and in support of my noble friend Lord Bethell’s amendments. I too am extremely grateful to the Minister for bringing forward all the government amendments; the direction of travel is encouraging. I am particularly pleased to see the movement from “may” to “must”, but I am worried that it is Ofcom’s rather than the regulated services’ “may” that moves to “must”. There is no backstop for recalcitrant regulated services that refuse to abide by Ofcom’s guidance. As the noble Baroness, Lady Kidron, said, in other areas of the Bill we have quite reasonably resorted to launching a review, requiring Ofcom to publish its results, requiring the Secretary of State to review the recommendations and then giving the Secretary of State backstop powers, if necessary, to implement regulations that would then require regulated companies to change.

I have a simple question for the Minister: why are we not following the same recipe here? Why does this differ from the other issues, on which the House agrees that there is more work to be done? Why are we not putting backstop powers into the Bill for this specific issue, when it is clear to all of us that it is highly likely that there will be said recalcitrant regulated firms that are not willing to grant access to their data for researchers?

Before my noble friend the Minister leaps to the hint he gave in his opening remarks—that this should all be picked up in the Data Protection and Digital Information Bill—unlike the group we have just discussed, this issue was discussed at Second Reading and given a really detailed airing in Committee. This is not new news, in the same way that other issues where we have adopted the same recipe that includes a backstop are being dealt with in the Bill. I urge my noble friend the Minister to follow the good progress so far and to complete the package, as we have in other areas.

[Lord Moylan (Con)]

My Lords, it is valuable to be able to speak immediately after my noble friend Lady Harding of Winscombe, because it gives me an opportunity to address some remarks she made last Wednesday when we were considering the Bill on Report. She suggested that there was a fundamental disagreement between us about our view of how serious online safety is—the suggestion being that somehow I did not think it was terribly important. I take this opportunity to rebut that and to add to it by saying that other things are also important. One of those things is privacy. We have not discussed privacy in relation to the Bill quite as much as we have freedom of expression, but it is tremendously important too.

Government Amendment 247A represents the most astonishing level of intrusion. In fact, I find it very hard to see how the Government think they can get away with saying that it is compatible with the provisions of the European Convention on Human Rights, which we incorporated into law some 20 years ago, thus creating a whole law of privacy that is now vindicated in the courts. It is not enough just to go around saying that it is “proportionate and necessary” as a mantra; it has to be true.

This provision says that an agency has the right to go into a private business with no warrant, and with no let or hindrance, and is able to look at its processes, data and equipment at will. I know of no other business that can be subjected to that without a warrant or some legal process in advance pertinent to that instance, that case or that business.

My noble friend Lord Bethell said that the internet has been abused by people who carry out evil things; he mentioned terrorism, for example, and he could have mentioned others. However, take mobile telephones and Royal Mail—these are also abused by people conducting terrorism, but we do not allow those communications to be intruded into without some sort of warrant or process. It does not seem to me that the fact that the systems can be abused is sufficient to justify what is being proposed.

My noble friend the Minister says that this can happen only offline. Frankly, I did not understand what he meant by that. In fact, I was going to say that I disagreed with him, but I am moving to the point of saying that I think it is almost meaningless to say that it is going to happen offline. He might be able to explain that. He also said that Ofcom will not see individual traffic. However, neither the point about being offline nor the point about not seeing individual traffic is on the face of the Bill.

When we ask ourselves what the purpose of this astonishing power is—this was referred to obliquely to some extent by the noble Baroness, Lady Fox of Buckley—we can find it in Clause 91(1), to which proposed new subsection (2A) is being added or squeezed in subordinate to it. Clause 91(1) talks about

“any information that they”—

that is, Ofcom—

“require for the purpose of exercising, or deciding whether to exercise, any of their online safety functions”.

The power could be used entirely as a fishing expedition. It could be entirely for the purpose of educating Ofcom as to what it should be doing. There is nothing here to say that it can have these powers of intrusion only if it suspects that there is criminality, a breach of the codes of conduct or any other offence. It is a fishing expedition, entirely for the purpose of

“exercising, or deciding whether to exercise”.

Those are the intrusions imposed upon companies. In some ways, I am less concerned about the companies than I am about what I am going to come to next: the intrusion on the privacy of individuals and users. If we sat back and listened to ourselves and what we are saying, could we explain to ordinary people—we are going to come to this when we discuss end-to-end encryption—what exactly can happen?

Two very significant breaches of the protections in place for privacy on the internet arise from what is proposed. First, if you allow someone into a system and into equipment, especially from outside, you increase the risk and the possibility that a further, probably more hostile party that is sufficiently well-equipped with resources—we know state actors with evil intent which are so equipped—can get in through that or similar holes. The privacy of the system itself would be structurally weakened as a result of doing this. Secondly, if Ofcom is able to see what is going on, the system becomes leaky in the direction of Ofcom. It can come into possession of information, some of which could be of an individual character. My noble friend says that it will not be allowed to release any data and that all sorts of protections are in place. We know that, and I fully accept the honesty and integrity of Ofcom as an institution and of its staff. However, we also know that things get leaked and escape. As a result of this provision, very large holes are being built into the protections of privacy that exist, yet there has been no reference at all to privacy in the remarks made so far by my noble friend.

I finish by saying that we are racing ahead and not thinking. Good Lord, my modest amendment in the last group to bring a well-established piece of legislation—the Consumer Rights Act—to bear upon this Bill was challenged on the grounds that there had not been an impact assessment. Where is the impact assessment for this? Where is even the smell test for this in relation to explaining it to the public? If my noble friend is able to expatiate at the end on the implications for privacy and attempt to give us some assurance, that would be some consolation. I doubt that he is going to give way and do the right thing and withdraw this amendment.

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, we have had some productive discussions on application stores, commonly known as “app stores”, and their role as a gateway for children accessing online services. I am grateful in particular to my noble friend Lady Harding of Winscombe for her detailed scrutiny of this area and the collaborative approach she has taken in relation to it and to her amendments, to which I will turn in a moment. These share the same goals as the amendments tabled in my name in seeking to add evidence-based duties on app stores to protect children.

The amendments in my name will do two things. First, they will establish an evidence base on the use of app stores by children and the role that app stores play in children encountering harmful content online. Secondly, following consideration of this evidence base, the amendments also confer a power on the Secretary of State to bring app stores into scope of the Bill should there be a material risk of significant harm to children on or through them.

On the evidence base, Amendment 272A places a duty on Ofcom to publish a report on the role of app stores in children accessing harmful content on the applications of regulated services. To help build a greater evidence base about the types of harm available on and through different kinds of app stores, the report will consider a broad range of these stores, which could include those available on various devices, such as smartphones, gaming devices and smart televisions. The report will also assess the use and effectiveness of age assurance on app stores and consider whether the greater use of age assurance or other measures could protect children further.

Publication of the report must be two to three years after the child safety duties come into force so as not to interfere with the Bill’s implementation timelines. This timing will also enable the report to take into account the impact of the regulatory framework that the Bill establishes.

Amendment 274A is a consequential amendment to include this report in the Bill’s broader confidentiality provisions, meaning that Ofcom will need to exclude confidential matters—for example, commercially sensitive information—from the report’s publication.

Government Amendments 236A, 236B and 237D provide the Secretary of State with a delegated power to bring app stores into the scope of regulation following consideration of Ofcom’s report. The power will allow the Secretary of State to make regulations putting duties on app stores to reduce the risks of harm presented to children from harmful content on or via app stores. The specific requirements in these regulations will be informed by the outcome of the Ofcom report I have mentioned.

As well as setting out the rules for app stores, the regulations may also make provisions regarding the duties and functions of Ofcom in regulating app stores. This may include information-gathering and enforcement powers, as well as any obligations to produce guidance or codes of practice for app store providers.

By making these amendments, our intention is to build a robust evidence base on the potential risks of app stores for children without affecting the Bill’s implementation more broadly. Should it be found that duties are required, the Secretary of State will have the ability to make robust and comprehensive duties, which will provide further layers of protection for children. I beg to move.

[Baroness Harding of Winscombe (Con)]

My Lords, before speaking to my Amendment 239A, I thank my noble friend the Minister, the Secretary of State and the teams in both the department and Ofcom for their collaborative approach in working to bring forward this group of amendments. I also thank my cosignatories. My noble friend Lady Stowell cannot be in her place tonight but she has been hugely helpful in guiding me through the procedure, as have been the noble Lords, Lord Stevenson, Lord Clement-Jones and Lord Knight, not to mention the noble Baroness, Lady Kidron. It has been a proper cross-House team effort. Even the noble Lord, Lord Allan, who started out quite sceptical, has been extremely helpful in shaping the discussion.

I also thank the NSPCC and Barnardo’s for their invaluable advice and support, as well as Snap and Match—two companies which have been willing to stick their heads above the parapet and challenge suppliers and providers on which they are completely dependent in the shape of the current app store owners, Apple and Google.

I reassure my noble friend the Minister—and everyone else—that I have no intention of dividing the House on my amendment, in case noble Lords were worried. I am simply seeking some reassurance on a number of points where my amendments differ from those tabled by the Government—but, first, I will highlight the similarities.

As my noble friend the Minister has referred to, I am delighted that we have two packages of amendments that in both cases recognise that this was a really significant gap in the Bill as drafted. Ignoring the elements of the ecosystem that sell access to regulated services, decide age guidelines and have the ability to do age assurance was a substantial gap in the framing of the Bill. But we have also recognised together that it is very important that this is an “and” not an “or”—it is not instead of regulating user-to-user services or search but in addition to. It is an additional layer that we can bring to protect children online, and it is very important that we recognise that—and both packages do.

Online Safety Bill

Baroness Harding of Winscombe Excerpts

Report stage
Wednesday 12th July 2023 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, the codes of practice are among the most important documents that Ofcom will produce as a result of the Bill—in effect, deciding what content we, the users of the internet, will see. The Government’s right to modify these drafts affects us all, so it is absolutely essential that the codes are trusted.

I, too, welcome the Government’s Amendments 134 to 138, which are a huge improvement on the Clause 39 that was presented in Committee. I am especially grateful that the Government have not proceeded with including economic conditions as a reason for the Secretary of State to modify draft codes, which the noble Baroness, Lady Harding, pointed out in Committee would be very damaging. But I would like the Minister to go further, which is why I put my name to Amendments 139, 140, 144 and 145.

Amendment 139 is so important at the moment. My fear is about the opt-out from publishing these directions from the Secretary of State for Ofcom to modify the draft codes, which will then allow them to be made behind closed doors between the Government and the regulator. This should not be allowed to happen. It would happen at a time when trust in the Government is low and there is a feeling that so many decisions affecting us all are taken without our knowledge. Surely it is right that there should be as much transparency as possible in exposing the pressure that the Minister is placing on the regulator. I hope that, if this amendment is adopted, it will allow Parliament to impose the bright light of transparency on the entire process, which is in danger of becoming opaque.

I am sure that no one wants a repeat of what happened under Section 94 of the Telecommunications Act 1984, which gave the Secretary of State power to give directions of a “general character” to anyone, in the “interests of national security” or international relations, as long as they did not disclose important information to Parliament. The Minister’s power to operate in total secrecy, without any accountability to Parliament, was seen by many as wrong and undemocratic. It was subsequently repealed. Amendments 139 and 140 will prevent the creation of a similar problem.

Likewise, I support Amendment 144, which builds on the previous amendments, as another brake on the control of the Secretary of State over this important area of regulations. Noble Lords in this House know how much the Government dislike legislative ping-pong—which we will see later this evening, I suspect. I ask the Minister to transfer this dislike to limiting ping-pong between the Government and the regulator over the drafting of codes of practice. It would also prevent the Secretary of State or civil servants expanding their control of the draft codes of practice from initial parameters to slightly wider sets of parameters each time that they are returned to the Minister for consideration. It will force the civil servants and the Secretary of State to make a judgment on the limitation of content and ensure that they stick to it. As it is, the Secretary of State has two bites of the cherry. They are involved in the original shaping of the draft codes of practice and then they can respond to Ofcom’s formulation. I hope the Minister would agree that it is sensible to stop this process from carrying on indefinitely. I want the users of the digital world to have full faith that the control of online content they see is above board —and not the result of secretive government overreach.

[Baroness Harding of Winscombe (Con)]

My Lords, not for the first time I find myself in quite a different place from my noble friend Lord Moylan. Before I go through some detailed comments on the amendments, I want to reflect that at the root of our disagreement is a fundamental view about how serious online safety is. The logical corollary of my noble friend’s argument is that all decisions should be taken by Secretaries of State and scrutinised in Parliament. We do not do that in other technical areas of health and safety in the physical world and we should not do that in the digital world, which is why I take such a different view—

[Lord Moylan (Con)]

My Lords—

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[Baroness Harding of Winscombe (Con)]

Perhaps the noble Lord will allow me to make my point. I really welcome the government amendments in this group. I thank my noble friend the Minister for bringing them forward and for listening hard to the debates that we had at Second Reading and in Committee. I am very pleased to see the removal of economic policy and the burdens to business as one of the reasons that a Secretary of State could issue directions. I firmly believe that we should not be putting Secretaries of State in the position of having to trade off safety for economic growth. The reality is that big tech has found it impossible to make those trade-offs too. People who work in these companies are human beings. They are looking for growth in their businesses. Secretaries of State are rightly looking for economic growth in our countries. We should not be putting people in the position of trying to make that trade-off. The right answer is to defer to our independent regulator to protect safety. I thank my noble friend and the Government very much for tabling these amendments.

I also support my noble friend Lady Stowell, as a member of the Communications and Digital Committee that she chairs so ably. She has brought forward a characteristically thoughtful and detailed set of amendments in an attempt to look around the corners of these powers. I urge my noble friend the Minister to see whether he can find a way in the specific issues of infinite and secretive ping-pong. Taking the secretive, my noble friend Lady Stowell has found a very clever way of making sure that it is not possible for future Governments to obscure completely any direction that they are giving, while at the same time not putting at risk any national secrets. It is a very thoughtful and precise amendment. I very much hope that my noble friend the Minister can support it.

On the infinite nature of ping-pong, which I feel is quite ironic today—I am not sure anyone in this House welcomes the concept of infinite ping-pong right now, whatever our views on business later today—friends of mine in the business world ask me what is different about working in government versus working in the business world; I have worked in both big and small businesses. Mostly it is not different: people come to work wanting to do a good job and to further the objectives of the organisation that they are part of, but one of the biggest differences in government is that doing nothing and continuing to kick the can down the road is a much more viable option in the body politic than it is in the business world. Rarely is that for the good.

One of the things you learn in business is that doing nothing is often the very worst thing you can do. My worry about the infinite nature of the ping-pong is that it refers to a technical business world that moves unbelievably fast. What we do not need is to enshrine a system that enables government essentially to avoid doing anything. That is a particularly business and pragmatic reason to support my noble friend’s amendment. I stress that it is a very mild amendment. My noble friend Lady Stowell has been very careful and precise not to put unreasonable burdens on a future Secretary of State. In “Yes Minister”-speak, the bare minimum could be quite a lot. I urge my noble friend the Minister to look positively on what are extremely constructive amendments, delivered in a very thoughtful way.

Online Safety Bill

Baroness Harding of Winscombe Excerpts

Report stage
Monday 10th July 2023 Lords Chamber

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.

Online Safety Bill

Baroness Harding of Winscombe Excerpts

Report stage
Monday 10th July 2023 Lords Chamber

[Baroness Kidron (CB)]

My Lords, I rise to speak to all the amendments in this group. It is a cause of great regret that, despite many private meetings with officials, government lawyers and Ministers, we have not yet come to an agreement that would explicitly include in the Bill harm that does not derive from content. I will be listening very carefully to the Minister, if he should change his mind during the debate.

The amendments in this group fall into three categories. First, there is a series of amendments in my name and those of the noble Lord, Lord Stevenson, the noble Baroness, Lady Harding, and the right reverend Prelate the Bishop of Oxford: Amendments 35, 36, 37A and 85. I hope the Government will accept them as consequential because, in meetings last week, they would not accept that harm to children can arise from the functionality and design of services and not just from the content. Each of these amendments simply makes it clear that harm can arise absent from content: nothing more, nothing less. If the Minister agrees that harm may derive from the design of products and services, can he please explain, when he responds, why these amendments are not acceptable? Simply put, it is imperative that the features, functionalities or behaviours that are harmful to children, including those enabled or created by the design or operation of the service, are in scope of the Bill. This would make it utterly clear that a regulated company has a duty to design its service in a manner that does not harm children.

The Government have primary priority harmful content, priority content or non-designated harmful content, the latter being a category that is yet to be defined, but not the harm that emerges from how the regulated company designs its service. For example, there are the many hundreds of small reward loops that make up a doomscroll or make a game addictive; commercial decisions such as Pokémon famously did for a time, which was to end every game in a McDonald’s car park; or, more sinister still, the content-neutral friend recommendations that introduce a child to other children like them, while pushing children into siloed groups. For example, they deliberately push 13 year-old boys towards Andrew Tate—not for any content reason, but simply on the basis that 13 year-old boys are like each other and one of them has already been on that site.

The impact of a content-neutral friend recommendation has rocked our schools as female teachers and girls struggle with the attitudes and actions of young boys, and has torn through families, who no longer recognise their sons and brothers. To push hundreds of thousands of children towards Andrew Tate for no reason other than to benefit commercially from the network effect is a travesty for children and it undermines parents.

The focus on content is old-fashioned and looks backwards. The Bill is drafted as if it has particular situations and companies in mind but does not think about how fast the business moves. When we started the Bill, none of us thought about the impact of TikTok; last week, we saw a new service, Threads, go from zero to 70 million users in a single day. It is an act of stunning hubris to be so certain of the form of harm. To be unprepared to admit that some harm is simply design means that, despite repeated denials, this is just a content Bill. The promise of systems and processes being at the heart of the Bill has been broken.

The second set of amendments in this group are in the name of my noble friend Lord Russell. Amendments 46 and 90 further reveal the attitude of the Government, in that they are protecting the companies rather than putting them four-square in the middle of their regime. The Government specifically exempt the manner of dissemination from the safety duties. My noble friend Lord Russell’s amendment would leave that out and ensure that the manner of dissemination, which is fundamental to the harm that children experience, is included. Similarly, Amendment 240 would take out “presented by content” so that harm that is the result of the design decisions is included in the Bill.

The third set are government Amendments 281C and 281D, and Amendment 281F, in my name. For absence of doubt, I am totally supportive of government Amendments 281C to 281E, which acknowledge the cumulative harms; for example, those that Molly Russell experienced as she was sent more and more undermining and harmful content. In as far as they are a response to my entreaties, and those of other noble Lords, that we ensure that cumulative harmful content is the focus of our concerns, I am grateful to the Government for tabling them. However, I note that the Government have conceded only the role of cumulative harm for content. Amendments 281D and 281E once again talk about content as the only harm to children.

The noble Lord, Lord Stevenson, the noble Baroness, Lady Harding, and the right reverend Prelate the Bishop of Oxford have added their names to Amendment 281F, and I believe I am right in saying that if there were not a limit to four names, there were a great many Peers who would have added their names also. For the benefit of the House, I will quote directly from the amendment:

“When in relation to children, references to harm include the potential impact of the design and operation of a regulated service separately and additionally from harms arising from content, including the following considerations … the potential cumulative impact of exposure to harm or a combination of harms … the potential for harm to result from features, functionalities or behaviours enabled or created by the design and operation of services … the potential for some features and functionalities within a service to be higher risk than other aspects of the service … that a service may, when used in conjunction with other services, facilitate harm to a child on a different service … the potential for design strategies that exploit a child’s developmental vulnerabilities to create harm, including validation metrics and compulsive reward loops … the potential for real time services, features and functionalities such as geolocation, livestream broadcasts or events, augmented and virtual environments to put children at immediate risk … the potential for content neutral systems that curate or generate environments, content feeds or contacts to create harm to children … that new and emerging harms may arise from artificial intelligence, machine generated and immersive environments”.


Before I continue, I ask noble Lords to consider which of those things they would not like for their children, grandchildren or, indeed, other people’s children. I have accepted that the Government will not add the schedule of harms as I first laid it: the four Cs of content, conduct, contact and commercial harms. I have also accepted that the same schedule, written in the less comfortable language of primary priority, priority and non-designated harms, has also been rejected. However, the list that I just set out, and the amendment to the duties that reflect those risks, would finally put the design of the system at the heart of the Bill. I am afraid that, in spite of all our conversations, I cannot accept the Government’s argument that all harm comes from content.

Even if we are wrong today—which we are most definitely not—in a world of AI, immersive tech and augmented reality, is it not dangerous and, indeed, foolish, to exclude harm that might come from a source other than content? I imagine that the Minister will make the argument that the features are covered in the risk assessment duties and that, unlike content, features may be good or bad so they cannot be characterised as harmful. To that I say: if the risk assessment is the only process that matters, why do the Government feel it necessary to define the child safety duties and the interpretation of harm? The truth is, they have meaning. In setting out the duty of a company to a child, why would the Government not put the company’s design decisions right at the centre of that duty?

As for the second part of the argument, a geolocation feature may of course be great for a map service but less great if it shows the real-time location of a child to a predator, and livestreaming from a school concert is very different from livestreaming from your bedroom. Just as the noble Lord, Lord Allan, explained on the first day on Report, there are things that are red lines and things that are amber; in other words, they have to be age-appropriate. This amendment does not seek—nor would it mean—that individual features or functionalities would be prevented, banned or stopped. It would mean that a company had a duty to make sure that their features and functionalities were age-appropriate and did not harm children—full stop. There would be no reducing this to content.

Finally, I want to repeat what I have said before. Sitting in the court at Molly Russell’s inquest, I watched the Meta representative contest content that included blood cascading down the legs of a young woman, messages that said, “You are worthless”, and snippets of film of people jumping off buildings. She said that none of those things met the bar of harmful content according to Meta’s terms and conditions.

Like others, I believe that the Online Safety Bill could usher in a new duty of care towards children, but it is a category error not to see harm in the round. Views on content can always differ but the outcome on a child is definitive. It is harm, not harmful content, that the Bill should measure. If the Minister does not have the power to accede, I will, with great regret, be testing the opinion of the House. I beg to move.

[Baroness Harding of Winscombe (Con)]

My Lords, as so often in the course of the Bill, I associate myself wholeheartedly with the comments that the noble Baroness, Lady Kidron, just made. I, too, thank my noble friend the Minister and the Secretary of State for listening to our debates in Committee on the need to be explicit about the impact of cumulative harmful content. So I support Amendments 281C, 281D and 281E, and I thank them for tabling them.

--- Later in debate ---

[Baroness Harding of Winscombe (Con)]

My Lords, as somebody who is only five feet and two inches, I have felt that size does not matter for pretty much all my life and have long wanted to say that in a speech. This group of amendments is really about how size does not matter; risk does. I will briefly build on the speech just given by the noble Lord, Lord Allan, very eloquently as usual, to describe why risk matters more than size.

First, there are laws for which size does matter—small companies do not need to comply with certain systems and processes—but not those concerned with safety. I have in my mind’s eye the small village fête, where we expect a risk assessment if we are to let children ride on rides. That was not the case 100 years ago, but is today because we recognise those dangers. One of the reasons why we stumbled into thinking that size should matter in this Bill is that we are not being honest about the scale of the risk for our children. If the risk is large enough, we should not be worrying about size; we should be worrying about that risk. That is the first reason why we have to focus on risk and not size.

The second reason is subsequent to what I have just said—the principles of the physical world should apply to the online world. That is one of the core tenets of this Bill. That means that if you recognise the real and present risks of the digital world you have to say that it does not matter whether a small number of people are affected. If it is a small business, it still has an obligation not to put people in harm’s way.

Thirdly, small becomes big very quickly—unfortunately, that has not been true for me, but it is true in the digital world as Threads has just shown us. Fourthly, we also know that in the digital world re-engineering something once it has got very big is really difficult. There is also a practical reason why you want engineers to think about the risks before they launch services rather than after the event.

We keep being told, rightly, that this is a Bill about systems and processes. It is a Bill where we want not just the outcomes that the noble Lord, Lord Allan, has referred to in terms of services in the UK genuinely being safer; we are trying to effect a culture change. I would argue one of the most important culture changes is that any bright, young tech entrepreneur has to start by thinking about the risks and therefore the safety procedures they need to put in place as they build their tech business from the ground up and not once they have reached some artificial size threshold.

[Baroness Kidron (CB)]

My Lords, I have to admit that it was incompetence rather than lack of will that meant I did not add my name to Amendment 39 in the name of the noble Lord, Lord Bethell, and I would very much like the Government to accept his argument.

In the meantime, I wonder whether the Minister would be prepared to make it utterly clear that proportionality does not mean a little bit of porn to a large group of children or a lot of porn to a small group of children; rather, it means that high-risk situations require effective measures and low-risk situations should be proportionate to that. On that theme, I say to the noble Lord, Lord Allan, whose points I broadly agree with, that while we would all wish to see companies brought into the fold rather than being out of the fold, it rather depends on their risk.

This brings me neatly to Amendments 43 and 87 from the noble Lord, Lord Russell, to which I managed to add my name. They make a very similar point to Amendment 39 but across safety duties. Amendment 242 in my name, to which the noble Lord, Lord Stevenson, the noble Baroness, Lady Harding, and the right reverend Prelate the Bishop of Oxford have added their names, makes the same point—yet again—in relation to Ofcom’s powers.

All these things are pointing in the same direction as Amendment 245 in the name of the noble Baroness, Lady Morgan, which I keep on trumpeting from these Benches and which offers an elegant solution. I urge the Minister to consider Amendment 245 before day four of Report because if the Government were to accept it, it would focus company resources, focus Ofcom resources and, as we discussed on the first day of Report, permit companies which do not fit the risk profile of the regime and are unable to comply with something that does not fit their model yet leaves them vulnerable to enforcement also to be treated in an appropriate way.

Collectively, the ambition is to make sure that we are treating things in proportion to the risk and that proportionate does not start meaning something else.

Online Safety Bill

Baroness Harding of Winscombe Excerpts

Report stage
Thursday 6th July 2023 Lords Chamber

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

My Lords, the Government are committed to protecting children against accessing pornography online. As technology evolves, it is important that the regulatory framework introduced by the Bill keeps pace with emerging risks to children and exposure to pornography in new forms, such as generative artificial intelligence.

Part 5 of the Bill has been designed to be future-proof, and we assess that it would already capture AI-generated pornography. Our Amendments 206 and 209 will put beyond doubt that content is “provider pornographic content” where it is published or displayed on a Part 5 service by means of an automated tool or algorithm, such as a generative AI bot, made available on the service by a provider. Amendments 285 and 293 make clear that the definition of an automated tool includes a bot. Amendment 276 clarifies the definition of a provider of a Part 5 service, to make clear that a person who controls an AI bot that generates pornography can be regarded as the provider of a service.

Overall, our amendments provide important certainty for users, providers and Ofcom on the services and content in scope of the Part 5 duties. This will ensure that the new, robust duties for Part 5 providers to use age verification or age estimation to prevent children accessing provider pornographic content will also extend to AI-generated pornography. I beg to move.

[Baroness Harding of Winscombe (Con)]

My Lords, the noble Baroness, Lady Kidron, has unfortunately been briefly detained. If you are surprised to see me standing up, it is because I am picking up for her. I start by welcoming these amendments. I am grateful for the reaction to the thought-provoking debate that we had in Committee. I would like to ask a couple of questions just to probe the impact around the edges.

Amendment 27 looks as if it implies that purely content-generating machine-learning or AI bots could be excluded from the scope of the Bill, rather than included, which is the opposite of what we were hoping to achieve. That may be us failing to understand the detail of this large body of different amendments, but I would welcome my noble friend the Minister’s response to make sure that in Amendment 27 we are not excluding harm that could be generated by some form of AI or machine-learning instrument.

Maybe I can give my noble friend the Minister an example of what we are worried about. This is a recent scenario that noble Lords may have seen in the news, of a 15 year-old who asked, “How do I have sex with a 30 year-old?”. The answer was given in forensic detail, with no reference to the fact that it would in fact be statutory rape. Would the regulated service, or the owner of the regulated service that generated that answer, be included or excluded as a result of Amendment 27? That may be my misunderstanding.

This group is on AI-generated pornography. My friend, the noble Baroness, Lady Kidron, and I are both very concerned that it is not just about pornography, and that we should make sure that AI is included in the Bill. Specifically, many of us with teenage children will now be learning how to navigate the Snap AI bot. Would harm generated by that bot be captured in these amendments, or is it only content that is entirely pornographic? I hope that my noble friend the Minister can clarify both those points, then we will be able to support all these amendments.

[Lord Allan of Hallam (LD)]

My Lords, I rise briefly to welcome the fact that there is a series of amendments here where “bot” is replaced by

“bot or other automated tool”.

I point out that there is often a lot of confusion about what a bot is or is not. It is something that was largely coined in the context of a particular service—Twitter—where we understand that there are Twitter bots: accounts that have been created to pump out lots of tweets. In other contexts, on other services, there is similar behaviour but the mechanism is different. It seems to me that the word “bot” may turn out to be one of those things that was common and popular at the end of the 2010s and in the early 2020s, but in five years we will not be using it at all. It will have served its time, it will have expired and we will be using other language to describe what it is that we want to capture: a human being has created some kind of automated tool that will be very context dependent, depending on the nature of the service, and they are pumping out material. It is very clear that we want to make sure that such behaviour is in scope and that the person cannot hide behind the fact that it was an automated tool, because we are interested in the mens rea of the person sitting behind the tool.

I recognise that the Government have been very wise in making sure that whenever we refer to a bot we are adding that “automated tool” language, which will make the Bill inherently much more future-proof.

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[Baroness Harding of Winscombe (Con)]

My Lords, I also speak in support of Amendments to 281, 281A and 281B, to which I have added my name, tabled by the noble Lord, Lord Russell. He and, as ever, the noble Baroness Kidron, have spoken eloquently, I am not going to spend much time on these amendments but I wanted to emphasise Amendment 281A.

In the old world of direct marketing—I am old enough to remember that when I was a marketing director it was about sending magazines, leaflets and letters—one spent all of one’s time working out how to build loyalty: how to get people to engage longer as a result of one’s marketing communication. In the modern digital world, that dwell time has been transformed into a whole behavioural science of its own. It has developed a whole set of tools. Today, we have been using the word “activity” at the beginning of the Bill in the new Clause 1 but also “features” and “functionality”. The reason why Amendment 281A is important is that there is a danger that the Bill keeps returning to being just about content. Even in Clause 208 on functionality, almost every item in subsection (2) mentions content, whereas Amendment 281A tries to spell out the elements of addiction-driving functionality that we know exist today.

I am certain that brilliant people will invent some more but we know that these ones exist today. I really think that we need to put them in the Bill to help everyone understand what we mean because we have spent days on this Bill—some of us have spent years, if not decades, on this issue—yet we still keep getting trapped in going straight back to content. That is another reason why I think it is so important that we get some of these functionalities in the Bill. I very much hope that, if he cannot accept the amendment today, my noble friend the Minister will go back, reflect and work out how we could capture these specific functionalities before it is too late.

I speak briefly on Amendments 28 to 30. There is unanimity of desire here to make sure that organisations such as Wikipedia and Streetmap are not captured. Personally, I am very taken—as I often am—by the approach of the noble Baroness, Lady Kidron. We need to focus on risk rather than using individual examples, however admirable they are today. If Wikipedia chose to put on some form of auto-scroll, the risk of that service would go up; I am not suggesting that Wikipedia is going to do so today but, in the digital world, we should not assume that, just because organisations are charities or devoted to the public good, they cannot inadvertently cause harm. We do not make that assumption in the physical world either. Charities that put on physical events have to do physical risk assessments. I absolutely think that we should hold all organisations to that same standard. However, viewed through the prism of risk, Wikipedia—brilliant as it is—does not have a risk for child safety and therefore should not be captured by the Bill.

[The Lord Bishop of Oxford]

My Lords, I broadly support all the amendments in this group but I will focus on the three amendments in the names of the noble Lord, Lord Russell, and others; I am grateful for their clear exposition of why these amendments are important. I draw particular attention to Amendment 281A and its helpful list of functions that are considered to be harmful and to encourage addiction.

There is a very important dimension to this Bill, whose object, as we have now established, is to encourage safety by design. An important aspect of it is cleaning up, and setting right, 20 years or more of tech development that has not been safe by design and has in fact been found to be harmful by way of design. As the noble Baroness, Lady Harding, just said, in many conversations and in talking to people about the Bill, one of the hardest things to communicate and get across is that this is about not only content but functionality. Amendment 281A provides a useful summary of the things that we know about in terms of the functions that cause harm. I add my voice to those encouraging the Minister and the Government to take careful note of it and to capture this list in the text of the Bill in some way so that this clean-up operation can be about not only content for the future but functionality and can underline the objectives that we have set for the Bill this afternoon.

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

My Lords, interestingly, because I have not discussed this at all with the noble Lord, Lord Moylan, I have some similar concerns to his. I have always wanted this to be a children’s online safety Bill. My concerns generally have been about threats to adults’ free speech and privacy and the threat to the UK as the home of technological innovation. I have been happy to keep shtum on things about protecting children, but I got quite a shock when I saw the series of government amendments.

I thought what most people in the public think: the Bill will tackle things such as suicide sites and pornography. We have heard some of that very grim description, and I have been completely convinced by people saying, “It’s the systems”. I get all that. But here we have a series of amendments all about content—endless amounts of content and highly politicised, contentious content at that—and an ever-expanding list of harms that we now have to deal with. That makes me very nervous.

On the misinformation and disinformation point, the Minister is right. Whether for children or adults, those terms have been weaponised. They are often used to delegitimise perfectly legitimate if contrary or minority views. I say to the noble Baroness, Lady Kidron, that the studies that say that youth are the fastest-growing far-right group are often misinformation themselves. I was recently reading a report about this phenomenon, and things such as being gender critical or opposing the small boats arriving were considered to be evidence of far-right views. That was not to do with youth, but at least you can see that this is quite a difficult area. I am sure that many people even in here would fit in the far right as defined by groups such as HOPE not hate, whose definition is so broad.

My main concerns are around the Minister’s Amendment 172. There is a problem: because it is about protected characteristics—or apes the protected characteristics of the Equality Act—we might get into difficulty. Can we at least recognise that, even in relation to the protected characteristics as noted in the Equality Act, there are raging rows politically? I do not know how appropriate it is that the Minister has tabled an amendment dragging young people into this mire. Maya Forstater has just won a case in which she was accused of being opposed to somebody’s protected characteristics and sacked. Because of the protected characteristics of her philosophical views, she has won the case and a substantial amount of money.

I worry when I see this kind of list. It is not just inciting hatred—in any case, what that would mean is ambivalent. It refers to abuse based on race, religion, sex, sexual orientation, disability and so on. This is a minefield for the Government to have wandered into. Whether you like it or not, it will have a chilling effect on young people’s ability to debate and discuss. If you worry that some abuse might be aimed at religion, does that mean that you will not be able to discuss Charlie Hebdo? What if you wanted to show or share the Charlie Hebdo cartoons? Will that count? Some people would say that is abusive or inciteful. This is not where the Bill ought to be going. At the very least, it should not be going there at this late stage. Under race, it says that “nationality” is one of the indicators that we should be looking out for. Maybe it is because I live in Wales, but there is a fair amount of abuse aimed at the English. A lot of Scottish friends dole it out as well. Will this count for young people who do that? I cannot get it.

My final question is in relation to proposed subsection (11). This is about protecting children, yet it lists a person who

“has the characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.

Are the Government seriously accepting that children have not just proposed to reassign but have been reassigned? That is a breach of the law. That is not meant to be happening. Your Lordships will know how bad this is. Has the Department for Education seen this? As we speak, it is trying to untangle the freedom for people not to have to go along with people’s pronouns and so on.

This late in the day, on something as genuinely important as protecting children, I just want to know whether there is a serious danger that this has wandered into the most contentious areas of political life. I think it is very dangerous for a government amendment to affirm gender reassignment to and about children. It is genuinely irresponsible and goes against the guidance the Government are bringing out at the moment for us to avoid. Please can the Minister clarify what is happening with Amendment 172?

[Baroness Harding of Winscombe (Con)]

My Lords, I am not entirely sure how to begin, but I will try to make the points I was going to make. First, I would like to respond to a couple of the things said by the noble Baroness, Lady Fox. With the greatest respect, I worry that the noble Baroness has not read the beginning of the proposed new clause in Amendment 172, subsection (2), which talks about “Content which is abusive”, as opposed to content just about race, religion or the other protected characteristics.

One of the basic principles of the Bill is that we want to protect our children in the digital world in the same way that we protect them in the physical world. We do not let our children go to the cinema to watch content as listed in the primary priority and priority content lists in my noble friend the Minister’s amendments. We should not let them in the digital world, yet the reality is that they do, day in and day out.

I thank my noble friend the Minister, not just for the amendments that he has tabled but for the countless hours that he and his team have devoted to discussing this with many of us. I have not put my name to the amendments either because I have some concerns but, given the way the debate has turned, I start by thanking him and expressing my broad support for having the harms in the Bill, the importance of which this debate has demonstrated. We do not want this legislation to take people by surprise. The important thing is that we are discussing some fundamental protections for the most vulnerable in our society, so I thank him for putting those harms in the Bill and for allowing us to have this debate. I fear that it will be a theme not just of today but of the next couple of days on Report.

I started with the positives; I would now like to bring some challenges as well. Amendments 171 and 172 set out priority content and primary priority content. It is clear that they do not cover the other elements of harm: contact harms, conduct harms and commercial harms. In fact, it is explicit that they do not cover the commercial harms, because proposed new subsection (4) in Amendment 237 explicitly says that no amendment can be made to the list of harms that is commercial. Why do we have a perfect crystal ball that means we think that no future commercial harms could be done to our children through user-to-user and search services, such that we are going to expressly make it impossible to add those harms to the Bill? It seems to me that we have completely ignored the commercial piece.

I move on to Amendment 174, which I have put my name to. I am absolutely aghast that the Government really think that age-inappropriate sexualised content does not count as priority content. We are not necessarily talking here about a savvy 17 year-old. We are talking about four, five and six year-olds who are doomscrolling on various social media platforms. That is the real world. To suggest that somehow the digital world is different from the old-fashioned cinema, and a place where we do not want to protect younger children from age-inappropriate sexualised material, just seems plain wrong. I really ask my noble friend the Minister to reconsider that element.

I am also depressed about the discussion that we had about misinformation. As I said in Committee several times, I have two teenage girls. The reality is that we are asking today’s teenagers to try to work out what is truth and what is misinformation. My younger daughter will regularly say, “Is this just something silly on the internet?” She does not use the term “misinformation”; she says, “Is that just unreal, Mum?” She cannot tell about what appears in her social media feeds because of the degree of misinformation. Failing to recognise that misinformation is a harm for young people who do not yet know how to validate sources, which was so much easier for us when we were growing up than it is for today’s generations, is a big glaring gap, even in the content element of the harms.

I support the principle behind these amendments, and I am pleased to see the content harms named. We will come back next week to the conduct and contact harms—the functionality—but I ask my noble friend the Minister to reconsider on both misinformation and inappropriate sexualised material, because we are making a huge mistake by failing to protect our children from them.

--- Later in debate ---

[Lord Moylan (Con)]

My Lords, these words have obviously appeared in the Bill in one of those unverified sections; I have clicked the wrong button, so I cannot see them. Where does it say in Amendment 172 that it has to be a consistent flow?

[Baroness Harding of Winscombe (Con)]

May I attempt to assist the Minister? This is the “amber” point described by the noble Lord, Lord Allan: “priority content” is not the same as “primary priority content”. Priority content is our amber light. Even the most erudite and scholarly description of baby eating is not appropriate for five year-olds. We do not let it go into “Bod” or any of the other of the programmes we all grew up on. This is about an amber warning: that user-to-user services must have processes that enable them to assess the risk of priority content and primary priority content. It is not black and white, as my noble friend is suggesting; it is genuinely amber.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, we may be slipping back into a Committee-style conversation. My noble friend Lord Moylan rightly says that this is the first chance we have had to examine this provision, which is a concession wrung out of the Government in Committee. As the noble Lord, Lord Stevenson, says, sometimes that is the price your Lordships’ House pays for winning these concessions, but it is an important point to scrutinise in the way that my noble friend Lord Moylan and the noble Baroness, Lady Fox, have done.

I will try to reassure my noble friend and the noble Baroness. This relates to the definition of a characteristic with which we began our debates today. To be a characteristic it has to be possessed by a person; therefore, the content that is abusive and targets any of the characteristics has to be harmful to an individual to meet the definition of harm. Further, it has to be material that would come to the attention of children in the way that the noble Baronesses who kindly leapt to my defence and added some clarity have set out. So my noble friend would be able to continue to criticise the polytheistic religions of the past and their tendencies to his heart’s content, but there would be protections in place if what he was saying was causing harm to an individual—targeting them on the basis of their race, religion or any of those other characteristics—if that person was a child. That is what noble Lords wanted in Committee, and that is what the Government have brought forward.

My noble friend and others asked why mis- and disinformation were not named as their own category of priority harmful content to children. Countering mis- and disinformation where it intersects with the named categories of primary priority or priority harmful content, rather than as its own issue, will ensure that children are protected from the mis- and disinformation narratives that present the greatest risk of harm to them. We recognise that mis- and disinformation is a broad and cross-cutting issue, and we therefore think the most appropriate response is to address directly the most prevalent and concerning harms associated with it; for example, dangerous challenges and hoax health advice for children to self-administer harmful substances. I assure noble Lords that any further harmful mis- and disinformation content will be captured as non-designated content where it presents a material risk of significant harm to an appreciable number of children.

In addition, the expert advisory committee on mis- and disinformation, established by Ofcom under the Bill, will have a wide remit in advising on the challenges of mis- and disinformation and how best to tackle them, including how they relate to children. Noble Lords may also have seen that the Government have recently tabled amendments to update Ofcom’s statutory media literacy duty. Ofcom will now be required to prioritise users’ awareness of and resilience to misinformation and disinformation online. This will include children and their awareness of and resilience to mis- and disinformation.

My noble friend Lady Harding of Winscombe talked about commercial harms. Harms exacerbated by the design and operation of a platform—that is, their commercial models—are covered in the Bill already through the risk assessment and safety duties. Financial harm, as used in government Amendment 237, is dealt with by a separate legal framework, including the Consumer Protection from Unfair Trading Regulations. This exemption ensures that there is no regulatory overlap.

The noble Lord, Lord Russell of Liverpool, elaborated on remarks made earlier by the noble Lord, Lord Stevenson of Balmacara, about their meeting looking at the incel movement, if it can be called that. I assure the noble Lord and others that Ofcom has a review and report duty and will be required to stay on top of changes in the online harms landscape and report to government on whether it recommends changes to the designated categories of content because of the emerging risks that it sees.

The noble Baroness, Lady Kidron, anticipated the debate we will have on Monday about functionalities and content. I am grateful to her for putting her name to so many of the amendments that we have brought forward. We will continue the discussions that we have been having on this point ahead of the debate on Monday. I do not want to anticipate that now, but I undertake to carry on those discussions.

In closing, I reiterate what I know is the shared objective across your Lordships’ House—to protect children from harmful content and activity. That runs through all the government amendments in this group, which cover the main categories of harmful content and activity that, sadly, too many children encounter online every day. Putting them in primary legislation enables children to be swiftly protected from encountering them. I therefore hope that noble Lords will be heartened by the amendments that we have brought forward in response to the discussion we had in Committee.

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Report stage
Thursday 6th July 2023 Lords Chamber

[Baroness Kidron (CB)]

My Lords, I will speak to Amendment 1, to which I was happy to add my name alongside that of the Minister. I too thank the noble Lord, Lord Stevenson, for tabling the original amendment, and my noble and learned friend Lord Neuberger for providing his very helpful opinion on the matter.

I am especially pleased to see that ensuring that services are safe by design and offer a higher standard of protection for children is foundational to the Bill. I want to say a little word about the specificity, as I support the noble Baroness, Lady Merron, in trying to get to the core issue here. Those of your Lordships who travel to Westminster by Tube may have seen TikTok posters saying that

“we’re committed to the safety of teens on TikTok. That’s why we provide an age appropriate experience for teens under 16. Accounts are set to private by default, and their videos don’t appear in public feeds or search results. Direct messaging is also disabled”.

It might appear to the casual reader that TikTok has suddenly decided unilaterally to be more responsible, but each of those things is a direct response to the age-appropriate design code passed in this House in 2018. So regulation does work and, on this first day on Report, I want to say that I am very grateful to the Government for the amendments that they have tabled, and “Please do continue to listen to these very detailed matters”.

With that, I welcome the amendment. Can the Minister confirm that having safety by design in this clause means that all subsequent provisions must be interpreted through that lens and will inform all the decisions of Report and those of Ofcom, and the Secretary of State’s approach to setting and enforcing standards?

[Baroness Harding of Winscombe (Con)]

My Lords, I too thank my noble friend the Minister for tabling Amendment 1, to which I add my support.

Very briefly, I want to highlight one word in it, to add to what the noble Baroness, Lady Kidron, has just said. The word is “activity”. It is extremely important that in Clause 1 we are setting out that the purpose is to

“require providers of services regulated by this Act to identify, mitigate and manage”

not just illegal or harmful content but “activity”.

I very much hope that, as we go through the few days on Report, we will come back to this and make sure that in the detailed amendments that have been tabled we genuinely live up to the objective set out in this new clause.

[The Lord Bishop of Manchester]

My Lords, I too support the Minister’s Amendment 1. I remember vividly, at the end of Second Reading, the commitments that we heard from both Front-Benchers to work together on this Bill to produce something that was collaborative, not contested. I and my friends on these Benches have been very touched by how that has worked out in practice and grateful for the way in which we have collaborated across the whole House. My plea is that we can use this way of working on other Bills in the future. This has been exemplary and I am very grateful that we have reached this point.

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Committee stage
Thursday 22nd June 2023 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, following on from the excellent points that the noble Baroness has made, I want to pursue the same direction. In this group of amendments we are essentially trying to reduce the incidence of tragedies such as those that the families there in the Gallery have experienced and trying to ensure that no one—that is probably unrealistic, but at least far fewer people—will have the same experience.

I particularly want to focus the Minister and the Bill team on trying to think through how to ensure that, as and when something tragic happens, what happens to the families faced with that—the experience that they have and the help that I hope in future they will be able to receive—will make it a less traumatic, lonely and baffling experience than it clearly has been to date.

At the heart of this, we are talking about communication; about the relationship between Ofcom and the platforms; probably about the relationships between platforms and other platforms, in sharing knowledge; about the relationship between Ofcom and government; about the relationship between Ofcom and regulators in other jurisdictions; and about the relationship between our Government and other Governments, including, most importantly, the Government in the US, where so many of these platforms are based. There is a network of communication that has to work. By its very nature, trying to capture something as all-encompassing as that in primary legislation will in some ways be out of date before it even hits the statute book. It is therefore incredibly important that there is a dynamic information-sharing and analytics process to understand what is going on in the online world, and what the experience is of individuals who are interacting with that world.

That brings me neatly back to an amendment that we have previously discussed, which I suspect the noble Viscount sitting on the Front Bench will remember in painful detail. When we were talking about the possibility of having an independent ombudsman to go to, what we heard from all around the House was, “Where do we go? If we have gone to the platforms and through the normal channels but are getting nowhere, where do we go? Are we on our own?”. The answer that we felt we were getting a few weeks ago was, “That’s it, you’ve got to lump it”. That is simply not acceptable.

I ask the Minister and the Bill team to ensure that there is recognition of the dynamic nature of what we are dealing with. We cannot capture it in primary legislation. I hope we cannot capture it in secondary instruments either; speaking as a member of the Secondary Legislation Scrutiny Committee, we have quite enough of them as it is so we do not want any more, thank you very much. However, it is incredibly important that the Government think about a dynamic form of having up-to-date information so that they and all the other parties in this area know what is going on.

[Baroness Harding of Winscombe (Con)]

My Lords, I support this group of amendments. I pay tribute to the families who I see are watching us as we debate this important group. I also pay tribute to my noble friend Lady Newlove, who has just given one of the most powerful speeches in the full 10 days of Committee.

The real sadness is that we are debating what happens when things go horribly wrong. I thank my noble friend the Minister and the Secretary of State, who is currently on leave, for the very collaborative way in which I know they have approached trying to find the right package—we are all waiting for him to stand up and speak to show us this. Very often, Governments do not want to give concessions early in the process of a Bill going through because they worry that those of us campaigning for concessions will then ask for more. In this case, as the noble Lord, Lord Russell, has just pointed to, all we are asking for in this Bill is to remember that a concession granted here helps only when things have gone horribly wrong.

As the noble Baroness, Lady Kidron, said, what we really want is a safer internet, where fewer children die. I reiterate the comments that she made at the end of her speech: as we have gone through Committee, we have all learned how interconnected the Bill is. It is fantastic that we will be able to put changes into it that will enable bereaved families not to have to follow the path that the Russells and all the other bereaved families campaigning for this had to follow—but that will not be enough. We also need to ensure that we put in place the safety-by-design amendments that we have been discussing. I argue that one of the most important is the one that the noble Lord, Lord Russell, has just referenced: when you already know that your child is in trouble but you cannot get help, unfortunately no one wants then to be able to say, “It’s okay. Bereaved families have what they need”. We need to do more than that.

[Lord Clement-Jones (LD)]

My Lords, this has been a very moving debate for a very important cause. I thank the noble Baroness, Lady Kidron, for introducing it in the way that she did, along with those who have spoken in the debate.

The good news is that this is very much a cross-party and cross-Bench debate. It clearly appears to be a concern that the Government share, and I appreciate that. I agree with the noble Baroness, Lady Harding, that it is not a weakness for the Government to concede here but very much the logic of where we have now got to. Compared with what is in the Joint Committee report on the draft Bill, what seems to be proposed—and I very much look forward to hearing what the Minister has to say—goes further than what we were proposing, so it may be that we have reached another milestone. However, we wait to hear the detail.

Like other noble Lords, I pay tribute to the bereaved parents. We heard from parents during our consideration of the draft Online Safety Bill and we have heard further since then, particularly as a result of the two notable inquests into the deaths of Frankie Thomas and Molly Russell, which highlighted the difficulties that families and coroners face. Both families talked about the additional toll on their mental health as they battle for information, and the impossibility of finding closure in the absence of answers.

The noble Baroness, Lady Newlove, said in her very moving speech that a humane process must be established for bereaved families and coroners to access data pertinent to the death of a child. That is what we have been seeking, and I pay tribute to the relentless way in which the noble Baroness, Lady Kidron, has pursued this issue on behalf of us all, supported by 5Rights and the NSPCC. We must have a transparent process in which bereaved families and coroners can access information from regulated services in cases where social media may have played a part in the death of a child.

My noble friend Lord Allan—who I am delighted is so plugged in to what could be the practical way of solving some of these issues—expertly described how Ofcom’s powers could and should be used and harnessed for this purpose. That very much goes with the grain of the Bill.

I shall repeat a phrase that the noble Baroness, Lady Kidron, used: the current situation is immoral and a failure of justice. We absolutely need to keep that in mind as we keep ourselves motivated to find the solution as soon as we possibly can. I look forward to good news from the Minister about the use of information notices for the purpose that has been heralded by the noble Baroness, Lady Kidron, but of course the devil is in the detail. We will obviously want to see the detail of the amendment well before Report.

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Committee stage
Thursday 22nd June 2023 Lords Chamber

[Baroness Kidron (CB)]

My Lords, I too want to support this group of amendments, particularly Amendment 234, and will make just a couple of brief points.

First, one of the important qualities of the online safety regime is transparency, and this really speaks to that point. It is beyond clear that we are going to need all hands on deck, and again, this speaks to that need. I passionately agree with the noble Baroness, Lady Fox, on this issue and ask, when does an independent researcher stop being independent? I have met quite a lot on my journey who suddenly find ways of contributing to the digital world other than their independent research. However, the route described here offers all the opportunities to put those balancing pieces in place.

Secondly, I am very much aware of the fear of the academics in our universities. I know that a number of them wrote to the Secretary of State last week saying that they were concerned that they would be left behind their colleagues in Europe. We do not want to put up barriers for academics in the UK. We want the UK to be at the forefront of governance of the digital world, this amendment speaks to that, and I see no reason for the Government to reject it.

Finally, I want to emphasise the importance of research. Revealing Reality did research for 5Rights called Pathways, in which it built avatars for real children and revealed the recommendation loops in action. We could see how children were being offered self-harm, suicide, extreme diets and livestream porn within moments of them arriving online. Frances Haugen has already been mentioned. She categorically proved what we have been asserting for years, namely that Instagram impacts negatively on teenage girls. As we put this regime in place, it is not adequate to rely on organisations that are willing to work in the grey areas of legality to get their research or on whistleblowers—on individual acts of courage—to make the world aware.

One of the conversations I remember happened nearly five years ago, when the then Secretary of State asked me what the most important thing about the Bill was. I said, “To bring a radical idea of transparency to the sector”. This amendment goes some way to doing just that.

[Baroness Harding of Winscombe (Con)]

My Lords, I, too, support Amendments 233 and 234, and Amendment 233A, from the noble Lord, Lord Allan. As the noble Baroness, Lady Kidron, said, it has been made clear in the past 10 days of Committee that there is a role for every part of society to play to make sure that we see the benefits of the digital world but also mitigate the potential harms. The role that researchers and academics can play in helping us understand how the digital world operates is critical—and that is going to get ever more so as we enter a world of large language models and AI. Access to data in order to understand how digital systems and processes work will become even more important—next week, not just in 10 years’ time.

My noble friend Lord Bethell quite rightly pointed out the parallels with other regulators, such as the MHRA and the Bank of England. A number of people are now comparing the way in which the MHRA and other medical regulators regulate the development of drugs with how we ought to think about the emergence of regulation for AI. This is a very good read-across: we need to set the rules of the road for researchers and ensure, as the noble Baroness, Lady Kidron, said—nailing it, as usual—that we have the most transparent system possible, enabling people to conduct their research in the light, not in the grey zone.

[Lord Clement-Jones (LD)]

My Lords, as the noble Baroness, Lady Kidron, said, clearly, transparency is absolutely one of the crucial elements of the Bill. Indeed, it was another important aspect of the Joint Committee’s report. Like the noble Lord, Lord Knight—a fellow traveller on the committee—and many other noble Lords, I much prefer the reach of Amendments 233 and 234, tabled by the noble Lord, Lord Bethell, to Amendment 230, the lead amendment in this group.

We strongly support amendments that aim to introduce a duty for regulated platforms to enable access by approved independent researchers to information and data from regulated services, under certain conditions. Of course, there are arguments for speeding up the process under Clause 146, but this is really important because companies themselves currently decide who accesses data, how much of it and for what purposes. Only the companies can see the full picture, and the effect of this is that it has taken years to build a really solid case for this Online Safety Bill. Without a greater level of insight, enabling quality research and harm analysis, policy-making and regulatory innovation will not move forward.

I was very much taken by what the noble Baroness, Lady Harding, had to say about the future in terms of the speeding up of technological developments in AI, which inevitably will make the opening up of data, and research into it, of greater and greater importance. Of course, I also take extremely seriously my noble friend’s points about the need for data protection. We are very cognisant of the lessons of Cambridge Analytica, as he mentioned.

It is always worth reading the columns of the noble Lord, Lord Hague. He highlighted this issue last December, in the Times. He said:

“Social media companies should be required to make anonymised data available to third-party researchers to study the effect of their policies. Crucially, the algorithms that determine what you see—the news you are fed, the videos you are shown, the people you meet on a website—should not only be revealed to regulators but the choices made in crafting them should then be open to public scrutiny and debate”.


Those were very wise words. The status quo leaves transparency in the hands of big tech companies with a vested interest in opacity. The noble Lord, Lord Knight, mentioned Twitter announcing in February that it would cease allowing free research access to its application programming interface. It is on a whim that a billionaire owner can decide to deny access to researchers.

I much prefer Amendment 233, which would enable Ofcom to appoint an approved independent researcher. The Ofcom code of practice proposed in Amendment 234 would be issued for researchers and platforms, setting out the procedures for enabling access to data. I take the point made by the noble Baroness, Lady Fox, about who should be an independent accredited researcher, but I hope that that is exactly the kind of thing that a code of practice would deal with.

Just as a little contrast, Article 40 of the EU’s Digital Services Act gives access to data to a broad range of researchers—this has been mentioned previously—including civil society and non-profit organisations dedicated to public interest research. The DSA sets out in detail the framework for vetting and access procedures, creating an explicit role for new independent supervisory authorities. This is an example that we could easily follow.

The noble Lord, Lord Bethell, mentioned the whole question of skilled persons. Like him, I do not believe that this measure is adequate as a substitute for what is contained in Amendments 233 and 234. It will be a useful tool for Ofcom to access external expertise on a case-by-case basis but it will not provide for what might be described as a wider ecosystem of inspection and analysis.

The noble Lord also mentioned the fact that internet companies should not regard themselves as an exception. Independent scrutiny is a cornerstone of the pharmaceutical, car, oil, gas and finance industries. They are open to scrutiny from research; we should expect that for social media as well. Independent researchers are already given access in many other circumstances.

The case for these amendments has been made extremely well. I very much hope to see the Government, with the much more open approach that they are demonstrating today, accept the value of these amendments.

Online Safety Bill

Baroness Harding of Winscombe Excerpts

Committee stage
Thursday 25th May 2023 Lords Chamber

Moved by

[Baroness Harding of Winscombe]

125: Clause 49, page 47, line 22, at end insert—
“(c) machine-generated content is to be regarded as user-generated content of a service if—(i) the creation or use of the machine-generated content involves interacting with user-generated content,(ii) it takes the form or identity of a user,(iii) it provides content that constitutes illegal, primary priority content or priority content, or would constitute it if created in another format, or(iv) a user has in any way facilitated any element of the generation by way of a command, prompt, or any other instruction, however minimal.”Member’s explanatory statement
This amendment would add machine-generated content to regulated content in the bill and gives meaning to how it could be regarded as ‘user-generated content’ of the service, and allows virtual and augmented reality material to be treated on an equal basis as on other formats.

[Baroness Harding of Winscombe (Con)]

My Lords, I rise to introduce this group. On Tuesday in Committee, I said that having reached day 8 of the Committee we had all found our roles; now, I find myself in a different role. The noble Baroness, Lady Kidron, is taking an extremely well-earned holiday and was never able to be in the House today. She has asked me to introduce this group and specifically to speak to Amendment 125 in her name.

I strongly support all the amendments in the group, particularly those that would result in a review, but will limit my words to Amendment 125. I also thank the other co- signatories, the noble Baroness, Lady Finlay, who is in her place, and my noble friend Lord Sarfraz, who made such a compelling speech at Second Reading on the need for the Bill to consider emerging technologies but who is also, sadly, abroad, on government business.

I start with something said by Lord Puttnam, and I paraphrase: that we were forbidden from incorporating the word “digital” throughout the whole process of scrutiny of the communications Act in 2002. As a number of us observed at the time, he said, it was a terrible mistake not to address or anticipate these issues when it was obvious that we would have to return to it all at some later date. The Online Safety Bill is just such a moment: “Don’t close your eyes and hope”, he said, “but look to the future and make sure that it is represented in the Bill”.

With that in mind, this amendment is very modest. I will be listening carefully, as I am sure the noble Baroness, Lady Kidron, will from a distance, to my noble friend the Minister because if each aspect of this amendment is already covered in the Bill, as I suspect he will want to say, then I would be grateful if he could categorically explain how that is the case at the Dispatch Box, in sufficient detail that a future court of law can clearly understand it. If he cannot state that then I will be asking the House, as I am sure the noble Baroness, Lady Kidron, would, to support the amendment’s inclusion in the Bill.

There are two important supporters of this amendment. If the Committee will forgive me, I want to talk briefly about each of them because of the depth of understanding of the issues they have. The first is an enforcement officer who I shall not name, but I and the noble Baroness, Lady Kidron, want to thank him and his team for the extraordinary work that they do, searching out child sexual abuse in the metaverse. The second, who I will come to in a little bit, is Dr Geoff Hinton, the inventor of the neural network and most often referred to as “the godfather of AI”, whom the noble Baroness, Lady Kidron, met last week. Both are firm supporters of this amendment.

The amendment is part of a grouping labelled future-proofing but, sadly, this is not in the future. It is with us now. The rise of child sexual abuse in the metaverse is growing phenomenally. Two months ago, at the behest of the Institution of Engineering and Technology, the noble Baroness, Lady Kidron, hosted a small event at which members of a specialist police unit explained to colleagues from both Houses that what they were finding online was amongst the worst imaginable, but was not adequately caught by existing laws. I should just warn those listening to or reading this—I am looking up at the Public Gallery, where I see a number of young people listening to us—that I am about to briefly recount some really horrific stuff from what we saw and heard.

The quality of AI imagery is now at the point where a realistic AI image of a child can be produced. Users are able to produce or order indecent AI images, based on a child known to them. Simply by uploading a picture of a next door neighbour’s child or a family member, or taking a child’s image from social media and putting that face on existing abuse images, they can create a body for that picture or, increasingly, make it 3D and take it into an abuse room. The type of imagery produced can vary from suggestive or naked to penetrative sex; for the most part, I do not think I should be repeating in this Chamber the scenarios that play out.

VR child avatars can be provided with a variety of bespoke abuse scenarios, which the user can then interact with. Tailor-made VR experiences are being advertised for production on demand. They can be made to meet specific fetishes or to feature a specific profile of a child. The production of these VR abuse images is a commercial venture. Among the many chilling facts we learned was that the Oculus Meta Quest 2, which is the best-selling VR headset in the UK, links up to an app that is downloaded on to the user’s mobile phone. Within that app, the user can search for other users to follow and engage with—either through the VR headset or via instant messaging in their mobile app. A brief search through the publicly viewable user profiles on this app shows a huge number of profiles with usernames indicative of a sexual interest in children.

Six weeks after the event, the noble Baroness, Lady Kidron, spoke to the same officer. He said that already the technology was a generation on—in just six weeks. The officer made a terrible and terrifying prediction: he said that in a matter of months this violent imagery, based on and indistinguishable from an actual known child, will evolve to include moving 3D imagery and that at that point, the worlds of VR and AI will meet and herald a whole new phase in offending. I will quote this enforcement officer. He said:

“I hate to think where we will be in six months from now”.


While this group is labelled as future-proofing the Bill, I remind noble Lords that in six months’ time, the provisions of the Bill will not have been implemented. So this is not about the future; it is actually about the now.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, like others, I thank the Whips for intervening to protect children from hearing details that are not appropriate for the young. I have to say that I was quite relieved because I was rather squirming myself. Over the last two days of Committee, I have been exposed to more violent pornographic imagery than any adult, never mind a child, should be exposed to. I think we can recognise that this is certainly a challenging time for us.

I do not want any of the comments I will now make to be seen as minimising understanding of augmented reality, AI, the metaverse and so on, as detailed so vividly by the noble Baronesses, Lady Harding and Lady Finlay, in relation to child safety. However, I have some concerns about this group, in terms of proportionality and unintended outcomes.

Amendment 239, in the names of the right reverend Prelate the Bishop of Oxford, the noble Lord, Lord Clement-Jones, and the noble Viscount, Lord Colville of Culross, sums up some of my concerns about a focus on future-proofing. This amendment would require Ofcom to produce reports about future risks, which sounds like a common-sense demand. But my question is about us overly focusing on risk and never on opportunities. There is a danger that the Bill will end up recommending that we see these new technologies only in a negative way, and that we in fact give more powers to expand the scope for harmful content, in a way that stifles speech.

Beyond the Bill, I am more generally worried about what seems to be becoming a moral panic about AI. The precautionary principle is being adopted, which could mean stifling innovation at source and preventing the development of great technologies that could be of huge benefit to humanity. The over-focus on the dangers of AI and augmented reality could mean that we ignore the potential large benefits. For example, if we have AI, everyone could have an immediately responsive GP in their pocket—goodness knows that, for those trying to get an appointment, that could be of great use and benefit. It could mean that students have an expert tutor in every subject, just one message away. The noble Baroness, Lady Finlay, spoke about the fantastic medical breakthroughs that augmented reality can bring to handling neurological damage. Last night, I cheered when I saw how someone who has never been able to walk now can, through those kinds of technologies. I thought, “Isn’t this a brilliant thing?” So all I am suggesting is that we have to be careful that we do not see these new technologies only as tools for the most perverted form of activity among a small minority of individuals.

I note, with some irony, that fewer qualms were expressed by noble Lords about the use of AI when it was proposed to scan and detect speech or images in encrypted messages. As I argued at the time, this would be a threat to WhatsApp, Signal and so on. Clauses 110 and 124 have us using AI as a blunt proactive technology of surveillance, despite the high risks of inaccuracy, error and false flags. But there was great enthusiasm for AI then, when it was having an impact on individuals’ freedom of expression—yet, here, all we hear are the negatives. So we need to be balanced.

I am also concerned about Amendment 125, which illustrates the problem of seeing innovation only as a threat to safety and a potential problem. For example, if the Bill considers AI-generated content to be user-generated content, only large technology companies will have the resources—lawyers and engineers—necessary to proceed while avoiding crippling liability.

In practice, UK users risk being blocked out from new technologies if we are not careful about how we regulate here. For example, users in the European Union currently cannot access Google Bard AI assistant because of GDPR regulations. That would be a great loss because Google Bard AI is potentially a great gain. Despite the challenges of the likes of ChatGPT and Bard AI that we keep reading about, with people panicking that this will lead to wide-scale cheating in education and so on, this has huge potential as a beneficial technology, as I said.

I have mentioned that one of the unintended consequences—it would be unintended—of the whole Bill could be that the UK becomes a hostile environment for digital investment and innovation. So start-ups that have been invested in—like DeepMind, a Google-owned and UK-based AI company—could be forced to leave the UK, doing huge damage to the UK’s digital sector. How can the UK be a science and technology superpower if we end up endorsing anti-innovation, anti-progress and anti-business measures by being overly risk averse?

I have the same concerns about Amendment 286, which requires periodic reviews of new technology content environments such as the metaverse and other virtual augmented reality settings. I worry that it will not be attractive for technology companies to confidently invest in new technologies if there is this constant threat of new regulations and new problems on the horizon.

I have a query that mainly relates to Amendment 125 but that is also more general. If virtual augmented reality actually involves user-to-user interaction, like in the metaverse, is it not already covered in the Bill? Why do we need to add it in? The noble Baroness, Lady Harding, said that it has got to the point where we are not able to distinguish fake from real, and augmented reality from reality. But she concludes that that means that we should treat fake as real, which seems to me to rather muddy the waters and make it a fait accompli. I personally—

[Baroness Harding of Winscombe (Con)]

I am sorry to interrupt, but I will make a clarification; the noble Baroness is misinterpreting what I said. I was actually quoting the godfather of AI and his concerns that we are fast approaching a space where it will be impossible—I did not say that it currently is—to distinguish between a real child being abused and a machine learning-generated image of a child being abused. So, first, I was quoting the words of the godfather of AI, rather than my own, and, secondly, he was looking forward—only months, not decades—to a very real and perceived threat.

[Baroness Fox of Buckley (Non-Afl)]

I personally think that it is pessimistic view of the future to suggest that humanity cannot rise to the task of being able to distinguish between deep fakes and real images. Organising all our lives, laws and liberties around the deviant predilections of a minority of sexual offenders on the basis that none of us will be able to tell the difference in the future, when it comes to that kind of activity, is rather dangerous for freedom and innovation.

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[Lord Allan of Hallam (LD)]

I am grateful to the noble Baroness. That is very helpful.

[Baroness Harding of Winscombe (Con)]

That is exactly the same issue with child sexual abuse images—it is about the way in which criminal law is written. Not surprisingly, it is not up to date with evolution of technology.

[Lord Allan of Hallam (LD)]

I am grateful for that intervention as well. That summarises the core questions that we have for the Minister. Of the three areas that we have for him, the first is the question of scope and the extent to which he can assure us that the Bill as drafted will be robust in covering the metaverse and bots, which are the issues that have been raised today. The second is on behaviours and to the two interventions that we have just had. We have been asking whether, with the behaviours that are criminal today, that criminality will stretch to new, similar forms of behaviour taking place in new environments—let us put it that way. The behaviour, the intent and the harm are the same, but the environment is different. We want to understand the extent to which the Government are thinking about that, where that thinking is happening and how confident they are that they can deal with that.

Finally, on the question of agency, how do the Government expect to deal with the fact that we will have machines operating in a user-to-user environment when the connection between the machine and another individual user is qualitatively different from anything that we have seen before? Those are just some small questions for the Minister on this Thursday afternoon.

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[Lord Parkinson of Whitley Bay (Con)]

I certainly concur that we should discuss the issue in greater detail. I am very happy to do so with the noble Lord, the noble Baroness and others who want to do so, along with officials. If we can bring some worked examples of what “in control” and “out of control” bots may be, that would be helpful.

I hope the points I have set out in relation to the other issues raised in this group and the amendments before us are satisfactory to noble Lords and that they will at this point be content not to press their amendments.

[Baroness Harding of Winscombe (Con)]

My Lords, I thank all noble Lords who have contributed to a thought-provoking and, I suspect, longer debate than we had anticipated. At Second Reading, I think we were all taken aback when this issue was opened up by my noble friend Lord Sarfraz; once again, we are realising that this requires really careful thought. I thank my noble friend the Minister for his also quite long and thoughtful response to this debate.

I feel that I owe the Committee a small apology. I am very conscious that I talked in quite graphic detail at the beginning when there were still children in the Gallery. I hope that I did not cause any harm, but it shows how serious this is that we have all had to think so carefully about what we have been saying—only in words, without any images. We should not underestimate how much this has demonstrated the importance of our debates.

On the comments of the noble Baroness, Lady Fox, I am a huge enthusiast, like the noble Lord, Lord Knight, for the wonders of the tech world and what it can bring. We are managing the balance in this Bill to make sure that this country can continue to benefit from and lead the opportunities of tech while recognising its real and genuine harms. I suggest that today’s debate has demonstrated the potential harm that the digital world can bring.

I listened carefully—as I am certain the noble Baroness, Lady Kidron, has been doing in the digital world—to my noble friend’s words. I am encouraged by what he has put on the record on Amendment 125, but there are some specific issues that it would be helpful for us to talk about, as he alluded to, after this debate and before Report. Let me highlight a couple of those.

First, I do not really understand the technical difference between a customer service bot and other bots. I am slightly worried that we are defining in the specific one type of bot that would not be captured by this Bill. I suspect that there might be others in future. We must think carefully through whether we are getting too much into the specifics of the technology and not general enough in making sure we capture where it could go. That is one example.

Secondly, as my noble friend Lady Berridge would say, I am not sure that we have got to the bottom of whether this Bill, coupled with the existing body of criminal law, will really enable law enforcement officers to progress the cases as they see fit and protect vulnerable women—and men—in the digital world. I very much hope we can extend the conversation there. We perhaps risk getting too close to the technical specifics if we are thinking about whether a haptic suit is in or out of scope of the Bill; I am certain that there will be other technologies that we have not even thought about yet that we will want to make sure that the Bill can capture.

I very much welcome the spirit in which this debate has been held. When I said that I would do this for the noble Baroness, Lady Kidron, I did not realise quite what a huge debate we were opening up, but I thank everyone who has contributed and beg leave to withdraw the amendment.

Amendment 125 withdrawn.