Online Safety Bill

Debate between Baroness Harding of Winscombe and Lord Moylan

Report stage
Monday 17th July 2023 Lords Chamber

[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.

Online Safety Bill

Debate between Baroness Harding of Winscombe and Lord Moylan

Report stage
Wednesday 12th July 2023 Lords Chamber

[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—

Online Safety Bill

Debate between Baroness Harding of Winscombe and Lord Moylan

Report stage
Thursday 6th July 2023 Lords Chamber

[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.

Online Safety Bill

Debate between Baroness Harding of Winscombe and Lord Moylan

Committee stage
Tuesday 2nd May 2023 Lords Chamber

[Lord Moylan (Con)]

Well, I must regard myself as doubly rebuked, and unfairly, because my reflections are very relevant to the amendments, and I have developed them in that direction. In respect of the parents, they have suffered very cruelly and wrongly, but although it may sound harsh, as I have said in this House before on other matters, hard cases make bad law. We are in the business of trying to make good law that applies to the whole population, so I do not think that these are wholly—

[Baroness Harding of Winscombe (Con)]

If my noble friend could, would he roll back the health and safety regulations for selling toys, in the same way that he seems so happy to have no health and safety regulations for children’s access to digital toys?

[Lord Moylan (Con)]

My Lords, if the internet were a toy, aimed at children and used only by children, those remarks would of course be very relevant, but we are dealing with something of huge value and importance to adults as well. It is the lack of consideration of the role of adults, the access for adults and the effects on freedom of expression and freedom of speech, implicit in these amendments, that cause me so much concern.

I seem to have upset everybody. I will now take issue with and upset the noble Baroness, Lady Benjamin, with whom I have not engaged on this topic so far. At Second Reading and earlier in Committee, she used the phrase, “childhood lasts a lifetime”. There are many people for whom this is a very chilling phrase. We have an amendment in this group—a probing amendment, granted—tabled by the noble Lord, Lord Knight of Weymouth, which seeks to block access to VPNs as well. We are in danger of putting ourselves in the same position as China, with a hermetically sealed national internet, attempting to put borders around it so that nobody can breach it. I am assured that even in China this does not work and that clever and savvy people simply get around the barriers that the state has erected for them.

Before I sit down, I will redeem myself a little, if I can, by giving some encouragement to the noble Baroness, Lady Kidron, on Amendments 28 and 32 —although I think the amendments are in the name of the noble Lord, Lord Russell of Liverpool. These amendments, if we are to assess the danger posed by the internet to children, seek to substitute an assessment of the riskiness of the provider for the Government’s emphasis on the size of the provider. As I said earlier in Committee, I do not regard size as being a source of danger. When it comes to many other services— I mentioned that I buy my sandwich from Marks & Spencer as opposed to a corner shop—it is very often the bigger provider I feel is going to be safer, because I feel I can rely on its processes more. So I would certainly like to hear how my noble friend the Minister responds on that point in relation to Amendments 28 and 32, and why the Government continue to put such emphasis on size.

More broadly, in these understandable attempts to protect children, we are in danger of using language that is far too loose and of having an effect on adult access to the internet which is not being considered in the debate—or at least has not been until I have, however unwelcomely, raised it.

Online Safety Bill

Debate between Baroness Harding of Winscombe and Lord Moylan

Committee stage
Thursday 27th April 2023 Lords Chamber

[Lord Moylan (Con)]

My Lords, I am grateful to all noble Lords who have spoken in this debate. I hope that the noble Baroness, Lady Deech, and the noble Lord, Lord Weir of Ballyholme, will forgive me if I do not comment on the amendment they spoke to in the name of my noble friend Lord Pickles, except to say that of course they made their case very well.

I will briefly comment on the remarks of the noble Baroness, Lady Kidron. I am glad to see a degree of common ground among us in terms of definitions and so forth—a small piece of common ground that we could perhaps expand in the course of the many days we are going to be locked up together in your Lordships’ House.

I am grateful too to the noble Lord, Lord Allan of Hallam. I am less clear on “2B or not 2B”, if that is the correct way of referring to this conundrum, than I was before. The noble Baroness, Lady Kidron, said that size does not matter and that it is all about risk, but my noble friend the Minister cunningly conflated the two and said at various points “the largest” and “the riskiest”. I do not see why the largest are necessarily the riskiest. On the whole, if I go to Marks & Spencer as opposed to going to a corner shop, I might expect rather less risk. I do not see why the two run together.

I address the question of size in my amendment because that is what the Bill focuses on. I gather that the noble Baroness, Lady Kidron, may want to explore at some stage in Committee why that is the case and whether a risk threshold might be better than a size threshold. If she does that, I will be very interested in following and maybe even contributing to that debate. However, at the moment, I do not think that any of us is terribly satisfied with conflating the two—that is the least satisfactory way of explaining and justifying the structure of the Bill.

On the remarks of my noble friend Lady Harding of Winscombe, I do not want in the slightest to sound as if there is any significant disagreement between us—but there is. She suggested that I was opening the way to businesses building business models “not taking children into account at all”. My amendment is much more modest than that. There are two ways of dealing with harm in any aspect of life. One is to wait for it to arrive and then to address it as it arises; the other is constantly to look out for it in advance and to try to prevent it arising. The amendment would leave fully in place the obligation to remove harm, which is priority illegal content or other illegal content, that the provider knows about, having been alerted to it by another person or become aware of it in any other way. That duty would remain. The duty that is removed, especially from small businesses—and really this is quite important—is the obligation constantly to be looking out for harm, because it involves a very large, and I suggest possibly ruinous, commitment to constant monitoring of what appears on a search engine. That is potentially prohibitive, and it arises in other contexts in the Bill as well.

There should be occasions when we can say that knowing that harmful stuff will be removed as soon as it appears, or very quickly afterwards, is adequate for our purposes, without requiring firms to go through a constant monitoring or risk-assessment process. The risk assessment would have to be adjudicated by Ofcom, I gather. Even if no risk was found, of course, that would not be the end of the matter, because I am sure that Ofcom would, very sensibly, require an annual renewal of that application, or after a certain period, to make sure that things had not changed. So even to escape the burden is quite a large burden for small businesses, and then to implement the burden is so onerous that it could be ruinous, whereas taking stuff down when it appears is much easier to do.

[Baroness Harding of Winscombe (Con)]

Perhaps I might briefly come in. My noble friend Lord Moylan may have helped explain why we disagree: our definition of harm is very different. I am most concerned that we address the cumulative harms that online services, both user-to-user services and search, are capable of inflicting. That requires us to focus on the design of the service, which we need to do at the beginning, rather than the simpler harm that my noble friend is addressing, which is specific harmful content—not in the sense in which “content” is used in the Bill but “content” as in common parlance; that is, a piece of visual or audio content. My noble friend makes the valid point that that is the simplest way to focus on removing specific pieces of video or text; I am more concerned that we should not exclude small businesses from designing and developing their services such that they do not consider the broader set of harms that are possible and that add up to the cumulative harm that we see our children suffering from today.

So I think our reason for disagreement is that we are focusing on a different harm, rather than that we violently disagree. I agree with my noble friend that I do not want complex bureaucratic processes imposed on small businesses; they need to design their services when they are small, which makes it simpler and easier for them to monitor harm as they grow, rather than waiting until they have grown. That is because the backwards re-engineering of a technology stack is nigh-on impossible.

[Lord Moylan (Con)]

My noble friend makes a very interesting point, and there is much to ponder in it—too much to ponder for me to respond to it immediately. Since I am confident that the issue is going to arise again during our sitting in Committee, I shall allow myself the time to reflect on it and come back later.

While I understand my noble friend’s concern about children, the clause that I propose to remove is not specific to children; it relates to individuals, so it covers adults as well. I think I understand what my noble friend is trying to achieve—I shall reflect on it—but this Bill and the clauses we are discussing are a very blunt way of going at it and probably need more refinement even than the amendments we have seen tabled so far. But that is for her to consider.

I think this debate has been very valuable. I did not mention it, but I am grateful also for the contribution from the noble Baroness, Lady Merron. I beg leave to withdraw the amendment.

Online Safety Bill

Debate between Baroness Harding of Winscombe and Lord Moylan

Committee stage
Tuesday 25th April 2023 Lords Chamber

[Lord Moylan (Con)]

Everything the noble Baroness has said is absolutely right, and I completely agree with her. The point I simply want to make is that no form of risk-based assessment will achieve a zero-tolerance outcome, but—

[Baroness Harding of Winscombe (Con)]

I am so sorry, but may I offer just one final thought from the health sector? While the noble Lord is right that where there are human beings there will be error, there is a concept in health of the “never event”—that when that error occurs, we should not tolerate it, and we should expect the people involved in creating that error to do a deep inspection and review to understand how it occurred, because it is considered intolerable. I think the same exists in the digital world in a risk assessment framework, and it would be a mistake to ignore it.

[Lord Moylan (Con)]

My Lords, I am now going to attempt for the third time to beg the House’s leave to withdraw my amendment. I hope for the sake of us all, our dinner and the dinner break business, for which I see people assembling, that I will be granted that leave.