Online Safety Bill

Baroness Kidron Excerpts

Committee stage
Tuesday 2nd May 2023 Lords Chamber

[Baroness Kidron (CB)]

It is a great pleasure to follow my noble friend Lord Russell and to thank him for his good wishes. I assure the Committee that there is nowhere I would rather spend my birthday, in spite of some competitive offers. I remind noble Lords of my interests in the register, particularly as the chair of 5Rights Foundation.

As my noble friend has set out, these amendments fall in three places: the risk assessments, the safety duties and the codes of practice. However, together they work on the overarching theme of safety by design. I will restrict my detailed remarks to a number of amendments in the first two categories. This is perhaps a good moment to recall the initial work of Carnegie, which provided the conceptual approach of the Bill several years ago in arguing for a duty of care. The Bill has gone many rounds since then, but I think the principle remains that a regulated service should consider its impact on users before it causes them harm. Safety by design, to which all the amendments in this group refer, is an embodiment of a duty of care. In thinking about these amendments as a group, I remind the Committee that both the proportionality provisions and the fact that this is a systems and processes Bill means that no company can, should or will be penalised for a single piece of content, a single piece of design or, indeed, low-level infringements.

Amendments 24, 31, 77 and 84 would delete “content” from the Government’s description of what is harmful to children, meaning that the duty is to consider harm in the round rather than just harmful content. The definition of “content” is drawn broadly in Clause 207 as

“anything communicated by means of an internet service”,

but the examples in the Bill, including

“written material … music and data of any description”,

once again fail to include design features that are so often the key drivers of harm to children.

On day three of Committee, the Minister said:

“The Bill will address cumulative risk where it is the result of a combination of high-risk functionality, such as live streaming, or rewards in service … This will initially be identified through Ofcom’s sector risk assessments, and Ofcom’s risk profiles and risk assessment guidance will reflect where a combination of risk in functionalities such as these can drive up the risk of harm to children. Service providers will have to take Ofcom’s risk profiles into account in their own risk assessments for content which is illegal or harmful to children”.—[Official Report, 27/4/23; col. 1385.]


However, in looking at the child safety duties, Clause 11(5) says:

“The duties … in subsections (2) and (3) apply across all areas of a service, including the way it is designed, operated and used”,


but subsection (14) says:

“The duties set out in subsections (3) and (6)”—


which are the duties to operate proportionate systems and processes to prevent and protect children from encountering harmful content and to include them in terms of service—

“are to be taken to extend only to content that is harmful to children where the risk of harm is presented by the nature of the content (rather than the fact of its dissemination)”.

I hesitate to say whether that is contradictory. I am not actually sure, but it is confusing. I am concerned that while we are reassured that “content” means content and activity and that the risk assessment considers functionality, “harm” is then repeatedly expressed only in the form of content.

Over the weekend, I had an email exchange with the renowned psychoanalyst and author, Norman Doidge, whose work on the plasticity of the brain profoundly changed how we think about addiction and compulsion. In the exchange, he said that

“children’s exposures to super doses, of supernormal images and scenes, leaves an imprint that can hijack development”.

Then, he said that

“the direction seems to be that AI would be working out the irresistible image or scenario, and target people with these images, as they target advertising”.

His argument is that it is not just the image but the dissemination and tailoring of that image that maximises the impact. The volume and frequency of those images create habits in children that take a lifetime to change—if they change at all. Amendments 32 and 85 would remove this language to ensure that content that is harmful by virtue of its dissemination is accounted for.

I turn now to Amendments 28 and 82, which cut the reference to the

“size and capacity of the provider of the service”

in deeming what measures are proportionate. We have already discussed that small is not safe. Such platforms such as Yubo, Clapper and Discord have all been found to harm children and, as both the noble Baroness, Lady Harding, and the noble Lord, Lord Clement-Jones, told us, small can become big very quickly. It is far easier to build to a set of rules than it is to retrofit them after the event. Again, I point out that Ofcom already has duties of proportionality; adding size and capacity is unnecessary and may tip the scale to creating loopholes for smaller services.

Amendment 138 seeks to reverse the exemption in Clause 54 of financial harms. More than half of the 100 top-grossing mobile phone apps contain loot boxes, which are well established as unfair and unhealthy, priming young children to gamble and leading to immediate hardship for parents landed with extraordinary bills.

By rights, Amendments 291 and 292 could fit in the future-proof set of amendments. The way that the Bill in Clause 204 separates out functionalities in terms of search and user-to-user is in direct opposition to the direction of travel in the tech sector. TikTok does shopping, Instagram does video, Amazon does search; autocomplete is an issue across the full gamut of services, and so on and so forth. This amendment simply combines the list of functionalities that must be risk-assessed and makes them apply on any regulated service. I cannot see a single argument against this amendment: it cannot be the Government’s intention that a child can be protected, on search services such as Google, from predictive search or autocomplete, but not on TikTok.

Finally, Amendment 295 will embed the understanding that most harm is cumulative. If the Bereaved Parents for Online Safety were in the Chamber, or any child caught up in self-harm, depression sites, gambling, gaming, bullying, fear of exposure, or the inexorable feeling of losing their childhood to an endless scroll, they would say at the top of their voices that it is not any individual piece of content, or any one moment or incident, but the way in which they are nudged, pushed, enticed and goaded into a toxic, harmful or dangerous place. Adding the simple words

“the volume of the content and the frequency with which the content is accessed”

to the interpretation of what can constitute harm in Clause 205 is one of the most important things that we can do in this Chamber. This Bill comes too late for a whole generation of parents and children but, if these safety by design amendments can protect the next generation of children, I will certainly be very glad.

[Baroness Harding of Winscombe (Con)]

My Lords, it is an honour, once again, to follow the noble Baroness, Lady Kidron, and the noble Lord, Lord Russell, in this Committee. I am going to speak in detail to the amendments that seek to change the way the codes of practice are implemented. Before I do, however, I will very briefly add my voice to the general comments that the noble Baroness, Lady Kidron, and the noble Lord, Lord Russell, have just taken us through. Every parent in the country knows that both the benefit and the harm that online platforms can bring our children is not just about the content. It is about the functionality: the way these platforms work; the way they suck us in. They do give us joy but they also drive addiction. It is hugely important that this Bill reflects the functionality that online platforms bring, and not just content in the normal sense of the word “content”.

I will now speak in a bit more detail about the following amendments: Amendments 65, 65ZA, 65AA, 89, 90, 90B, 96A, 106A, 106B, 107A, 114A—I will finish soon, I promise—112, 122ZA, 122ZB and 122ZC.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, I want, apart from anything else, to speak in defence of philosophical ruminations. The only way we can scrutinise the amendments in Committee is to do a bit of philosophical rumination. We are trying to work out what the amendments might mean in terms of changing the Bill.

I read these amendments, noted their use of “eliminate” —we have to “eliminate” all risks—and wondered what that would mean. I do not want to feel that I cannot ask these kinds of difficult questions for fear that I will offend a particular group or that it would be insensitive to a particular group of parents. It is difficult but we are required as legislators to try to understand what each other are trying to change, or how we are going to try to change the law.

I say to those who have put “eliminate” prominently in a number of these amendments that it is impossible to eliminate all risks to children—is it not?—if they are to have access to the online world, unless you ban them from the platforms completely. Is “eliminate” really helpful here?

Previously in Committee, I talked a lot about the potential dangers, psychologically and with respect to development, of overcoddling young people, of cotton wool kids, and so on. I noted an article over the weekend by the science journalist Tom Chivers, which included arguments from the Oxford Internet Institute and various psychologists that the evidence on whether social media is harmful, particularly for teenagers, is ambiguous.

I am very convinced by the examples brought forward by the noble Baroness, Lady Kidron—and I too wish her a happy birthday. We all know about the targeting of young people and so forth, but I am also aware of the positives. I always try to balance these things out and make sure that we do not deny young people access to the positives. In fact, I found myself cheering at the next group of amendments, which is unusual. First, they depend on whether you are four or 14—in other words, you have to be age-specific—and, secondly, they recognise that we do not want to pass anything in the Bill that actually denies children access to either their own privacy or the capacity to know more.

I also wanted to explore a little the idea of expanding the debate away from content to systems, because this is something that I think I am not quite understanding. My problem is that moving away from the discussion on whether content is removed or accessible, and focusing on systems, does not mean that content is not in scope. My worry is that the systems will have an impact on what content is available.

Let me give some examples of things that can become difficult if we think that we do not want young people to encounter violence and nudity—which makes it seem as though we know what we are talking about when we talk about “harmful”. We will all recall that, in 2018, Facebook removed content from the Anne Frank Centre posted by civil rights organisations because it included photographs of the Holocaust featuring undressed children among the victims. Facebook apologised afterwards. None the less, my worry is these kinds of things happening. Another example, in 2016, was the removal of the Pulitzer Prize-winning photograph “The Terror of War”, featuring fleeing Vietnamese napalm victims in the 1970s, because the system thought it was something dodgy, given that the photo was of a naked child fleeing.

I need to understand how system changes will not deprive young people of important educational information such as that. That is what I am trying to distinguish. The point made by the noble Lord, Lord Moylan, about “harmful” not being defined—I have endlessly gone on about this, and will talk more about it later—is difficult because we think that we know what we mean by “harmful” content.

Finally, on the amendments requiring compliance with Ofcom codes of practice, that would give an extraordinary amount of power to the regulator and the Secretary of State. Since I have been in this place, people have rightly drawn my attention to the dangers of delegating power to the Executive or away from any kind of oversight—there has been fantastic debate and discussion about that. It seems to me that these amendments advocate delegated powers being given to the Secretary of State and Ofcom, an unelected body —the Secretary of State could amend for reasons of public policy in order to protect children—and this is to be put through the negative procedure. In any other instance, I would have expected outcry from the usual suspects, but, because it involves children, we are not supposed to object. I worry that we need to have more scrutiny of such amendments and not less, because in the name of protecting children unintended consequences can occur.

[Baroness Kidron (CB)]

I want to answer the point that amendments cannot be seen in isolation. Noble Lords will remember that we had a long and good debate about what constituted harms to children. There was a big argument and the Minister made some warm noises in relation to putting harms to children in the Bill. There is some alignment between many people in the Chamber whereby we and Parliament would like to determine what harm is, and I very much share the noble Baroness’s concern about pointing out what that is.

On the issue of the system versus the content, I am not sure that this is the exact moment but the idea of unintended consequences keeps getting thrown up when we talk about trying to point the finger at what creates harm. There are unintended consequences now, except neither Ofcom nor the Secretary of State or Parliament but only the tech sector has a say in what the unintended consequences are. As someone who has been bungee jumping, I am deeply grateful that there are very strict rules under which that is allowed to happen.

[The Lord Bishop of Gloucester]

My Lords, I support the amendments in this group that, with regard to safety by design, will address functionality and harms—whatever exactly we mean by that—as well as child safety duties and codes of practice. The noble Lord, Lord Russell, and the noble Baronesses, Lady Harding and Lady Kidron, have laid things out very clearly, and I wish the noble Baroness, Lady Kidron, a happy birthday.

I also support Amendment 261 in the name of my right reverend friend the Bishop of Oxford and supported by the noble Lord, Lord Clement-Jones, and the noble Viscount, Lord Colville. This amendment would allow the Secretary of State to consider safety by design, and not just content, when reviewing the regime.

As we have heard, a number of the amendments would amend the safety duties to children to consider all harms, not just harmful content, and we have begun to have a very interesting debate on that. We know that service features create and amplify harms to children. These harms are not limited to spreading harmful content; features in and of themselves may cause harm—for example, beautifying filters, which can create unrealistic body ideals and pressure on children to look a certain way. In all of this, I want us to listen much more to the voices of children and young people—they understand this issue.

Last week, as part of my ongoing campaign on body image, including how social media can promote body image anxiety, I met a group of young people from two Gloucestershire secondary schools. They were very good at saying what the positives are, but noble Lords will also be very familiar with many of the negative issues that were on their minds, which I will not repeat here. While they were very much alive to harmful content and the messages it gives them, they were keen to talk about the need to address algorithms and filters that they say feed them strong messages and skew the content they see, which might not look harmful but, because of design, accentuates their exposure to issues and themes about which they are already anxious. Suffice to say that underpinning most of what they said to me was a sense of powerlessness and anxiety when navigating the online world that is part of their daily lives.

The current definition of content does not include design features. Building in a safety by design principle from the outset would reduce harms in a systematic way, and the amendments in this group would address that need.

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[Lord Knight of Weymouth (Lab)]

I am grateful to the noble Lord. In many ways, I am reminded of the article I read in the New York Times this weekend and the interview with Geoffrey Hinton, the now former chief scientist at Google. He said that as companies improve their AI systems, they become increasingly dangerous. He said of AI technology:

“Look at how it was five years ago and how it is now. Take the difference and propagate it forwards. That’s scary”.


Yes, the huge success of the iPhone, of mobile phones and all of us, as parents, handing our more redundant iPhones on to our children, has meant that children have huge access. We have heard the stats in Committee around the numbers who are still in primary school and on social media, despite the terms and conditions of those platforms. That is precisely why we are here, trying to get things designed to be safe as far as is possible from the off, but recognising that it is dynamic and that we therefore need a regulator to keep an eye on the dynamic nature of these algorithms as they evolve, ensuring that they are safe by design as they are being engineered.

My noble friend Lord Stevenson has tabled Amendment 27, which looks at targeted advertising, especially that which requires data collection and profiling of children. In that, he has been grateful to Global Action Plan for its advice. While advertising is broadly out of scope of the Bill, apart from in respect of fraud, it is significant for the Minister to reflect on the user experience for children. Whether it is paid or organic content, it is pertinent in terms of their safety as children and something we should all be mindful of. I say to the noble Lord, Lord Vaizey, that as I understand it, the age-appropriate design code does a fair amount in respect of the data privacy of children, but this is much more about preventing children encountering the advertising in the first place, aside from the data protections that apply in the age-appropriate design code. But the authority is about to correct me.

[Baroness Kidron (CB)]

Just to add to what the noble Lord has said, it is worth noting that we had a debate, on Amendment 92, about aligning the age-appropriate design code likely to be accessed and the very important issue that the noble Lord, Lord Vaizey, raised about alignment of these two regimes. I think we can say that these are kissing cousins, in that they take a by-design approach. The noble Lord is completely right that the scope of the Bill is much broader than data protection only, but they take the same approach.

[Lord Knight of Weymouth (Lab)]

I am grateful, as ever, to the noble Baroness, and I hope that has assisted the noble Lord, Lord Vaizey.

Finally—just about—I will speak to Amendment 32A, tabled in my name, about VPNs. I was grateful to the noble Baroness for her comments. In many ways, I wanted to give the Minister the opportunity to put something on the record. I understand, and he can confirm whether my understanding is correct, that the duties on the platforms to be safe is regardless of whether a VPN has been used to access the systems and the content. The platforms, the publishers of content that are user-to-user businesses, will have to detect whether a VPN is being used, one would suppose, in order to ensure that children are being protected and that that is genuinely a child. Is that a correct interpretation of how the Bill works? If so, is it technically realistic for those platforms to be able to detect whether someone is landing on their site via a VPN or otherwise? In my mind, the anecdote that the noble Baroness, Lady Harding, related, about what the App Store algorithm on Apple had done in pushing VPNs when looking for porn, reinforces the need for app stores to become in scope, so that we can get some of that age filtering at that distribution point, rather than just relying on the platforms.

Substantially, this group is about platforms anticipating harms, not reviewing them and then fixing them despite their business model. If we can get the platforms themselves designing for children’s safety and then working out how to make the business models work, rather than the other way around, we will have a much better place for children.

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[Lord Parkinson of Whitley Bay (Con)]

I will come on to talk a bit about dissemination as well. If the noble Lord will allow me, he can intervene later on if I have not done that to his satisfaction.

I was about to talk about the child safety duties in Clause 11(5), which also specifies that they apply to the way that a service is designed, how it operates and how it is used, as well as to the content facilitated by it. The definition of content makes it clear that providers are responsible for mitigating harm in relation to all communications and activity on their service. Removing the reference to content would make service providers responsible for all risk of harm to children arising from the general operation of their service. That could, for instance, bring into scope external advertising campaigns, carried out by the service to promote its website, which could cause harm. This and other elements of a service’s operations are already regulated by other legislation.

[Baroness Kidron (CB)]

I apologise for interrupting. Is that the case, and could that not be dealt with by defining harm in the way that it is intended, rather than as harm from any source whatever? It feels like a big leap that, if you take out “content”, instead of it meaning the scope of the service in its functionality and content and all the things that we have talked about for the last hour and a half, the suggestion is that it is unworkable because harm suddenly means everything. I am not sure that that is the case. Even if it is, one could find a definition of harm that would make it not the case.

[Lord Parkinson of Whitley Bay (Con)]

Taking it out in the way that the amendment suggests throws up that risk. I am sure that it is not the intention of the noble Lord or the noble Baroness in putting it, but that is a risk of the drafting, which requires some further thought.

Clause 11(2), which is the focus of Amendments 32, 85 and 295, already means that platforms have to take robust action against content which is harmful because of the manner of its dissemination. However, it would not be feasible for providers to fulfil their duties in relation to content which is harmful only by the manner of its dissemination. This covers content which may not meet the definition of content which is harmful to children in isolation but may be harmful when targeted at children in a particular way. One example could be content discussing a mental health condition such as depression, where recommendations are made repeatedly or in an amplified manner through the use of algorithms. The nature of that content per se may not be inherently harmful to every child who encounters it, but, when aggregated, it may become harmful to a child who is sent it many times over. That, of course, must be addressed, and is covered by the Bill.

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[Baroness Healy of Primrose Hill (Lab)]

My Lords, I support the amendments in the name of the noble Lord, Lord Russell, to require regulated services to have regard to the UN Convention on the Rights of the Child. As we continue to attempt to strengthen the Bill by ensuring that the UK will be the safest place for children to be online, there is a danger that platforms may take the easy way out in complying with the new legislation and just block children entirely from their sites. Services must not shut children out of digital spaces altogether to avoid compliance with the child safety duties, rather than designing services with their safety in mind. Children have rights and, as the UN convention makes clear, they must be treated according to their evolving capacities and in their best interests in consideration of their well-being.

Being online is now an essential right, not an option, to access education, entertainment and friendship, but we must try to ensure that it is a safe space. As the 5Rights Foundation points out, the Bill risks infringing children’s rights online, including their rights to information and participation in the digital world, by mandating that services prevent children from encountering harmful content, rather than ensuring services are made age appropriate for children and safe by design, as we discussed earlier. As risk assessments for adults have been stripped from the Bill, this has had the unintended consequence of rendering a child user relative to an adult user even more costly, as services will have substantial safety duties to comply with to protect children. 5Rights Foundation warns that this will lead services to determine that it is not worth designing services with children’s safety in mind but that it could be more cost effective to lock them out entirely.

Ofcom must have a duty to have regard for the UNCRC in its risk assessments. Amendment 196 would ensure that children’s rights are reflected in Ofcom’s assessment of risks, so that Ofcom must have regard for children’s rights in balancing their rights to be safe against their rights to access age-appropriate digital spaces. This would ensure compliance with general comment No. 25, as the noble Lord, Lord Russell, mentioned, passed in 2021, to protect children’s rights to freedom of expression and privacy. I urge the Ministers to accept these amendments to ensure that the UK will be not only the safest place for children to be online but the best place too, by respecting and protecting their rights.

[Baroness Kidron (CB)]

My Lords, I support all the amendments in this group, and will make two very brief points. Before I do, I believe that those who are arguing for safety by design and to put harms in the Bill are not trying to restrict the freedom of children to access the internet but to give the tech sector slightly less freedom to access children and exploit them.

My first point is a point of principle, and here I must declare an interest. It was my very great privilege to chair the international group that drafted general comment No. 25 on children’s rights in relation to the digital environment. We did so on behalf of the Committee on the Rights of the Child and, as my noble friend Lord Russell said, it was adopted formally in 2021. To that end, a great deal of work has gone into balancing the sorts of issues that have been raised in this debate. I think it would interest noble Lords to know that the process took three years, with 150 submissions, many by nation states. Over 700 children in 28 countries were consulted in workshops of at least three hours. They had a good shout and, unlike many of the other general comments, this one is littered with their actual comments. I recommend it to the Committee as a very concise and forceful gesture of what it might be to exercise children’s rights in a balancing way across all the issues that we are discussing. I cannot remember who, but somebody said that the online world is not optional for children: it is where they grow up; it is where they spend their time; it is their education; it is their friendships; it is their entertainment; it is their information. Therefore, if it is not optional, then as a signatory to the UNCRC we have a duty to respect their rights in that environment.

My second point is rather more practical. During the passage of the age-appropriate design code, of which we have heard much, the argument was made that children were covered by the amendment itself, which said they must be kept in mind and so on. I anticipate that argument being made here—that we are aligning with children’s rights, apart from the fact that they are indivisible and must be done in their entirety. In that case, the Government happily accepted that it should be explicit, and it was put in the Data Protection Act. It was one of the most important things that happened in relation to the age-appropriate design code. We might hope that, when this Bill is an Act, it will all be over—our job will be done and we can move on. However, after the Data Protection Act, the most enormous influx of lobbying happened, saying, “Please take the age down from 18 to 13”. The Government, and in that case the ICO, shrugged their shoulders and said, “We can’t; it’s on the face of the Bill”, because Article 1 of the UNCRC says that a child is anyone under the age of 18.

The evolving capacities of children are central to the UNCRC, so the concerns of the noble Baroness, Lady Fox, which I very much share, that a four year-old and a 14 year-old are not the same, are embodied in that document and in the general comment, and therefore it is useful.

These amendments are asking for that same commitment here—to children and to their rights, and to their rights to protection, which is at the heart of so much of what we are debating, and their well-being. We need their participation; we need a digital world with children in it. Although I agreed very much with the noble Baroness, Lady Bennett, and her fierce defending of children’s rights, there are 1 billion children online. If two-thirds of them have not seen anything upsetting in the last year, that rather means that one-third of 1 billion children have—and that is too many.

[Baroness Foster of Aghadrumsee (Non-Afl)]

My Lords, I did not intend to speak in this debate but I have been inspired by it.

I was here for the encryption debate last week, which I did not speak in. One of the contributions was around unintended consequences of the legislation, and I am concerned about unintended consequences here.

I absolutely agree with the comments of the noble Baroness, Lady Bennett, around the need for children to engage on the internet. Due to a confidence and supply agreement with the then Government back in 2017, I ensured that children and adults alike in Northern Ireland have the best access to the internet in the United Kingdom, and I am very proud of that. Digital literacy is covered in a later amendment, Amendment 91, which I will be strongly supporting. It is something that everybody needs to be involved in, not least our young people—and here I declare an interest as the mother of a 16 year-old.

I have two concerns. The first was raised by my friend the noble Lord, Lord Weir, around private companies being legally accountable for upholding an international human rights treaty. I am much more comfortable with Amendments 187 and 196, which refer to Ofcom. I think that is where the duty should be. I have an issue not with the convention but with private companies being held responsible for it; Ofcom should be the body responsible.

Secondly, I listened very carefully to what the noble Baroness, Lady Kidron, said about general comment No. 25. If what I say is incorrect, I hope she will say so. Is general comment No. 25 a binding document on the Government? I understood that it was not.

[Baroness Kidron (CB)]

We need to see the UNCRC included in the Bill. The convention is never opened up again, and how it makes itself relevant to the modern world is through the general comments; that is how the Committee on the Rights of the Child would interpret it.

[Baroness Foster of Aghadrumsee (Non-Afl)]

So it is an interpretive document. The unintended consequences piece was around general comment No. 25 specifically having reference to children being able to seek out content. That is certainly something that I would be concerned about. I am sure that we will discuss it further in the next group of amendments, which are on pornography. If young people were able to seek out harmful content, that would concern me greatly.

I support Amendments 187 and 196, but I have some concerns about the unintended consequences of Amendment 25.

Online Safety Bill

Baroness Kidron Excerpts

Committee stage
Thursday 27th April 2023 Lords Chamber

[Lord Weir of Ballyholme (DUP)]

My Lords, I also support Amendment 157, which stands in the name of the noble Lord, Lord Pickles, and others, including my own. As the noble Baroness, Lady Deech, indicated, it is specific in the nature of what it concentrates on. The greatest concern that arises through the amendment is with reference to category 2A. It is not necessarily incompatible with what the noble Lord, Lord Moylan, proposes; I do not intend to make any direct further comment on his amendments. While the amendment is specific, it has a resonance with some of the other issues raised on the Bill.

I am sure that everyone within this Committee would want to have a Bill that is as fit for purpose as possible. The Bill was given widespread support at Second Reading, so there is a determination across the Chamber to have that. Where we can make improvements to the Bill, we should do that and, as much as possible, try to future-proof the Bill. The wider resonance is the concern that if the Bill is to be successful, we need as much consistency and clarity within it as possible, particularly for users. Where we have a level of false dichotomy of regulations, that runs contrary to the intended purposes of the Bill and creates inadvertent opportunities for loopholes. As such, and as has been indicated, the concern is that in the Bill at present, major search engines are effectively treated in some of the regulations on a different basis from face-to-face users. For example, some of the provisions around risk assessment, the third shield and the empowerment tools are different.

As also indicated, we are not talking about some of the minor search engines. We are talking about some of the largest companies in the world, be it Google, Microsoft through Bing, Amazon through its devices or Apple through its Siri voice tool, so it is reasonable that they are brought into line with what is there is for face-to-face users. The amendment is therefore appropriate and the rationale for it is that there is a real-world danger. Mention has been made—we do not want to dwell too long on some of the examples, but I will use just one—of the realms of anti-Semitism, where I have a particular interest. For example, on search tools, a while ago there was a prompt within one search engine that Jews are evil. It was found that when that prompt was there, searches of that nature increased by 10% and when it was removed, they were reduced. It is quite fixable and it goes into a wide range of areas.

One of the ways in which technology has changed, I think for us all, is the danger that it can be abused by people who seek to radicalise others and make them extreme, particularly young children. Gone are the days when some of these extremists or terrorists were lonely individuals in an attic, with no real contact with the outside world, or hanging around occasionally in the high street while handing out poorly produced A4 papers with their hateful ideology. There is a global interconnection here and, in particular, search engines and face-to-face users can be used to try to draw young people into their nefarious activities.

I mentioned the example of extremism and radicalisation when it comes to anti-Semitism. I have seen it from my own part of the world, where there is at times an attempt by those who still see violence as the way forward in Northern Ireland to draw new generations of young people into extremist ideology and terrorist acts. There is an attempt to lure in young people and, sadly, search engines have a role within that, which is why we need to see that level of protection. Now, the argument from search engines is that they should have some level of exemptions. How can they be held responsible for everything that appears through their searches, or indeed through the web? But in terms of content, the same argument could be used for face-to-face users. It is right, as the proposer of this amendment has indicated, that there are things such as algorithmic indexing and prompt searches where they do have a level of control.

The use of algorithms has moved on considerably since my schooldays, as they surely have for everyone in this Committee, and I suspect that none of us felt that they would be used in such a fashion. We need a level of protection through an amendment such as this and, as its proposers, we are not doctrinaire on the precise form in which this should take place. We look, for example, at the provisions within Clause 11—we seek to hear what the Government have to say on that—which could potentially be used to regulate search engines. Ensuring that that power is given, and will be used by Ofcom, will go a long way to addressing many of the concerns.

I think all of us in this Committee are keen to work together to find the right solutions, but we feel that there is a need to make some level of change to the regulations that are required for search engines. None of us in this Committee believes that we will ultimately have a piece of legislation that reflects perfection, but there is a solemn duty on us all to produce legislation that is as fit for purpose and future-proofed as possible, while providing children in particular with the maximum protection in what is at times an ever-changing and sometimes very frightening world.

[Baroness Kidron (CB)]

My Lords, I agree in part with the noble Lord, Lord Moylan. I was the person who said that small was not safe, and I still feel that. I certainly do not think that anything in the Bill will make the world online 100% safe, and I think that very few noble Lords do, so it is important to say that. When we talk about creating a high bar or having zero tolerance, we are talking about ensuring that there is a ladder within the Bill so that the most extreme cases have the greatest force of law trying to attack them. I agree with the noble Lord on that.

I also absolutely agree with the noble Lord about implementation: if it is too complex and difficult, it will be unused and exploited in certain ways, and it will have a bad reputation. The only part of his amendment that I do not agree with is that we should look at size. Through the process of Committee, if we can look at risk rather than size, we will get somewhere. I share his impatience—or his inquiry—about what categories 2A and 2B mean. If category 2A means the most risky and category 2B means those that are less risky, I am with him all the way. We need to look into the definition of what they mean.

Finally, I mentioned several times on Tuesday that we need to look carefully at Ofcom’s risk profiles. Is this the answer to dealing with where risk gets determined, rather than size?

[Baroness Harding of Winscombe (Con)]

My Lords, I rise to speak along similar lines to the noble Baroness, Lady Kidron. I will address my noble friend Lord Moylan’s comments. I share his concern that we must not make the perfect the enemy of the good but, like the noble Baroness, I do not think that size is the key issue here, because of how tech businesses grow. Tech businesses are rather like building a skyscraper: if you get the foundations wrong, it is almost impossible to change how safe the building is as it goes up and up. As I said earlier this week, small tech businesses can become big very quickly, and, if you design your small tech business with the risks to children in mind at the very beginning, there is a much greater chance that your skyscraper will not wobble as it gets taller. On the other hand, if your small business begins by not taking children into account at all, it is almost impossible to address the problem once it is huge. I fear that this is the problem we face with today’s social media companies.

The noble Baroness, Lady Kidron, hit the nail on the head, as she so often does, in saying that we need to think about risk, rather than size, as the means of differentiating the proportionate response. In Clause 23, which my noble friend seeks to amend, the important phrase is “use proportionate measures” in subsection (2). Provided that we start with a risk assessment and companies are then under the obligation to make proportionate adjustments, that is how you build safe technology companies—it is just like how you build safe buildings.

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I hope the Government will give serious consideration to moving in this direction and to accepting the force of the amendments that have been put forward today. This is not about weakening the fight against appalling harms such as child sexual abuse material and terrorism, but rather about finding the most practical way to wage that fight in a world where end-to-end encryption exists and is being used to mitigate other material risks to our online lives. I beg to move.

[Baroness Kidron (CB)]

My Lords, I support Amendment 190 in the name of the noble Lord, Lord Clement-Jones, and Amendment 285 in the name of the noble Lord, Lord Stevenson. That is not to say that I do not have a great deal of sympathy for the incredibly detailed and expert speech we have just heard, but I want to say just a couple of things.

First, I think we need to have a new conversation about privacy in general. The privacy that is imagined by one community is between the state and the individual, and the privacy that we do not have is between individuals and the commercial companies. We live in a 3D world and the argument remains 2D. We cannot do that today, but I agree with the noble Lord that many in the enforcement community do have one hand on human rights, and many in the tech world do care about human rights. However, I do not believe that the tech sector has fully fessed up to its role and the contribution it could make around privacy. I hope that, as part of the debate on the Bill, and the debate that we will have subsequently on the data Bill No. 2, we come to untangle some of the things that they defend—in my view, unnecessarily and unfairly.

[Lord Allan of Hallam (LD)]

I point out that one of the benefits of end-to-end encryption is that it precisely stops companies doing things such as targeted advertising based on the content of people’s communications. Again, I think there is a very strong and correct trend to push companies in that direction.

[Baroness Kidron (CB)]

I thank the noble Lord for the intervention. For those noble Lords who are not following the numbers, Amendment 285, which I support, would prevent general monitoring. Apart from anything else, I am worried about equivalence and other issues in relation to general monitoring. Apart from a principled position against it, I think to be explicit is helpful.

Ofcom needs to be very careful, and that is what Amendment 190 sets out. It asks whether the alternatives have been thought about, whether the conditions have been thought about, and whether the potential impact has been thought about. That series of questions is essential. I am probably closer to the community that wants to see more powers and more interventions, but I would like that to be in a very monitored and regulated form.

I thank the noble Lord for his contribution. Some of these amendments must be supported because it is worrying for us as a country to have—what did the noble Lord call it?—ambiguity about whether something is possible. I do not think that is a useful ambiguity.

[Baroness Bennett of Manor Castle (GP)]

My Lords, my name is attached to Amendment 203 in this group, along with those of the noble Lords, Lord Clement-Jones, Lord Strathcarron and Lord Moylan. I shall speak in general terms about the nature of the group, because it is most usefully addressed through the fundamental issues that arise. I sincerely thank the noble Lord, Lord Allan, for his careful and comprehensive introduction to the group, which gave us a strong foundation. I have crossed out large amounts of what I had written down and will try not to repeat, but rather pick up some points and angles that I think need to be raised.

As was alluded to by the noble Baroness, Lady Kidron, this debate and the range of these amendments shows that the Bill is currently extremely deficient and unclear in this area. It falls to this Committee to get some clarity and cut-through to see where we could end up and change where we are now.

I start by referring to a briefing, which I am sure many noble Lords have received, from a wide range of organisations, including Liberty, Big Brother Watch, the Open Rights Group, Article 19, the Electronic Frontier Foundation, Reset and Fair Vote. It is quite a range of organisations but very much in the human rights space, particularly the digital human rights space. The introduction of the briefing includes a sentence that gets to the heart of why many of us have received so many emails about this element of the Bill:

“None of us want to feel as though someone is looking over our shoulder when we are communicating”.

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It is worth coming back to the overall view of this. Sometimes we say that the security services were always able to open letters and look at individual communications, when we hope they had the legal basis to do so. Here we are talking about everything, everybody, all the time, which is an entirely different world situation to that individual, targeted legal basis.

[Baroness Kidron (CB)]

I want to take advantage of the noble Baroness having raised that point to say that perhaps I was not clear enough in my speech. While I absolutely agree about not everything, everybody, all the time, for my specific concerns around child sexual abuse, abuse of women and so on, we have to find new world order ways of creating targeted approaches so it does not have to be everything, everybody, all the time.

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This is true. Most child abuse happens offline. Online child abuse needs to be dealt with, but I worry that we will say to people, “Don’t worry, all will be well because we’re dealing with it in the Online Safety Bill”.

[Baroness Kidron (CB)]

No one in the Committee or anyone standing behind us who speaks up for children thinks that this is going to be a silver bullet. It is unacceptable to suggest that we take that position. Much child abuse takes place offline and is then put online, but the exponential way in which it is consumed, created, and spread is entirely new because of the services we are talking about. Later in Committee I will explain some of the new ways in which it is creating child abuse—new forms, new technologies, new abuse.

I am sorry to interrupt the noble Baroness. I have made my feelings clear that I am not an end-to-end encryption “breaker”. There are amendments covering this; I believe some of them will come up later in the name of the noble Lord, Lord Russell, on safety by design and so on. I also agree with the noble Baroness that we need more resources in this area for the police, teachers, social workers and so on. However, I do not want child sexual abuse to be a football in this conversation.

[Baroness Fox of Buckley (Non-Afl)]

I agree with the noble Baroness, which is precisely why I am suggesting that we need to consider whether privacy should be sacrificed totally in relation to the argument around encryption. It is difficult, and I feel awkward saying it. When I mentioned a silver bullet I was not talking about the noble Baroness or any other noble Lords present, but I have heard people say that we need this Bill because it will deal with child abuse. In this group of amendments, I am raising the fact that when I have talked about encryption with people outside of the House they have said that we need to do something to tackle the fact that these messages are being sent around. It is not just child abuse; it is also terrorism. There is a range of difficult situations.

Things can go wrong with this, and that is what I was trying to raise. For example, we have a situation where some companies are considering using, or are being asked to use, machine learning to detect nudity. Just last year, a father lost his Google account and was reported to the police for sending a naked photo of their child to the doctor for medical reasons. I am raising these as examples of the problems that we have to consider.

Child abuse is so abhorrent that we will do anything to protect children, but let me say this to the Committee, as it is where the point on privacy lies: children are largely abused in their homes, but as far as I understand it we are not as yet arguing that the state should put CCTV cameras in every home for 24/7 surveillance to stop child abuse. That does not mean that we are glib or that we do not understand the importance of child abuse; it means that we understand the privacy of your home. There are specialist services that can intervene when they think there is a problem. I am worried about the possibility of putting a CCTV camera in everyone’s phone, which is the danger of going down this route.

My final point is that these services, such as WhatsApp, will potentially leave the UK. It is important to note that. I agree with the noble Lord, Lord Allan: this is not like threatening to storm off. It is not done in any kind of pique in that way. In putting enormous pressure on these platforms to scan communications, we must remember that they are global platforms. They have a system that works for billions of people all around the world. A relatively small market such as the UK is not something for which they would compromise their billions of users around the world. As I have explained, they would not put up with it if the Chinese state said, “We have to see people’s messages”. They would just say, “We are encrypted services”. They would walk out of China and we would all say, “Well done”. There is a real, strong possibility of these services leaving the UK so we must be very careful.

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[Lord Parkinson of Whitley Bay (Con)]

I am hesitant to give too tight a definition, because we want to remain technology neutral and make sure that we are keeping an open mind to developing changes. I will think about that and write to the noble Lord. The best endeavours will inevitably change over time as new technological solutions present themselves. I point to the resourcefulness of the sector in identifying those, but I will see whether there is anything more I can add.

[Baroness Kidron (CB)]

While the Minister is reflecting, I note that the words “best endeavours” are always a bit of a worry. The noble Lord, Lord Allan, made the good point that once it is on your phone, you are in trouble and you must report it, but the frustration of many people outside this Chamber, if it has been on a phone and you cannot deal with it, is what comes next to find the journey of that piece of material without breaking encryption. I speak to the tech companies very often—indeed, I used to speak to the noble Lord, Lord Allan, when he was in position at then Facebook—but that is the question that we would like answered in this Committee, because the frustration that “It is nothing to do with us” is where we stop with our sympathy.

Online Safety Bill

Baroness Kidron Excerpts

Committee stage
Thursday 27th April 2023 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, this group of amendments concerns terms of service. All the amendments either have the phrase “terms of service” in them or imply that we wish to see more use of the phrase in the Bill, and seek to try to tidy up some of the other bits around that which have crept into the Bill.

Why are we doing that? Rather late in the day, terms of service has suddenly become a key fulcrum, under which much of the operations of the activity relating to people’s usage of social media and service functions on the internet will be expressed in relation to how they view the material coming to them. With the loss of the adult “legal but harmful” provisions, we also lost quite a considerable amount of what would have been primary legislation, which no doubt would have been backed up by codes of practice. The situation we are left with, and which we need to look at very closely, is the triple shield at the heart of the new obligations on companies, and, in particular, on their terms of service. That is set out primarily in Clauses 64, 65, 66 and 67, and is a subject to which my amendments largely refer.

Users of the services would be more confident that the Government have got their focus on terms of service right, if they actually said what should be said on the tin, as the expression goes. If it is the case that something in a terms of service was so written and implemented so that material which should be taken down was indeed taken down, these would become reliable methods of judging whether or not the service is the one people want to have, and the free market would be seen to be working to empower people to make their own decisions about what level of risk they can assume by using a service. That is a major change from the way the Bill was originally envisaged. Because this was done late, we have one or two of the matters to which I have referred already, which means that the amendments focus on changing what is currently in the Bill.

It is also true that the changes were not consulted upon; I do not recall there being any document from government about whether this was a good way forward. The changes were certainly not considered by the Joint Committee, of which several of those present were members—we did not discuss it in the Joint Committee and made no recommendation on it. The level of scrutiny we have enjoyed on the Bill has been absent in this area. The right reverend Prelate the Bishop of Oxford will speak shortly to amendments about terms of service, and we will be able to come back to it. I think it would have been appropriate had the earlier amendment in the name of the noble Lord, Lord Pickles, been in this group because the issue was the terms of service, even though it had many other elements that were important and that we did discuss.

The main focus of my speech is that the Government have not managed to link this new idea of terms of service and the responsibilities that will flow from that to the rest of the Bill. It does not seem to fit into the overall architecture. For example, it is not a design feature, and does not seem to work through in that way. This is a largely self-contained series of clauses. We are trying to ask some of the world’s largest companies, on behalf of the people who use them, to do things on an almost contractual basis. Terms of service are not a contract that you sign up to, but you certainly click something—or occasionally click it, if you remember to—by which you consent to the company operating in a particular set of ways. In a sense, that is a contract, but is it really a contract? At the heart of that contract between companies and users is whether the terms of service are well captured in the way the Bill is organised. I think there are gaps.

The Bill does have something that we welcome and want to hold on to, which is that the process under which the risks are assessed and decisions taken about how companies operate and how Ofcom relates to those decisions is about the design and operation of the service—both the design and the operation, something that the noble Baroness, Lady Kidron, is very keen to emphasise at all times. It all starts and ends with design, and the operation is a consequence of design choices. Other noble Baronesses have mentioned in the debate that small companies get it right and so, when they grow, can be confident that what they are doing is something that is worth doing. Design, and operating that design to make a service, is really important. Are terms of service part of that or are they different, and does it matter? It seems to me that they are downstream from the design: something can be designed and then have terms of service that were not really part of the original process. What is happening here?

My Amendments 16, 21, 66DA, 75 and 197 would ensure that the terms of service are included within the list of matters that constitute “design and operation” of the service at each point that it occurs. I have had to go right through the Bill to add it in certain areas—in a rather irritating way, I am sure, for the Bill team—because sometimes we find that what I think should be a term of service is actually described as something else, such as a “a publicly available statement”, whatever that is. It would be an advantage if we went through it again and defined terms of service and made sure that that was what we were talking about.

Amendments 70 to 72, 79 to 81 and 174 seek to help the Government and their officials with tidying up the drafting, which probably has not been scrutinised enough to pick up these issues. It may not matter, at the end of the day, but what is in the Bill is going to be law and we may as well try to get it right as best we can. I am sure the Minister will say we really do not need to worry about this because it is all about risks and outcomes, and if a company does not protect children or has illegal content, or the user-empowerment duties—the toggling—do not work, Ofcom will find a way of driving the company to sort it out. What does that mean in practice? Does it mean that Ofcom has a role in defining what terms of service are? It is not in the Bill and may not reach the Bill, but it is something that will be a bit of problem if we do not resolve what we mean by it, even if it is not by changing the legislation.

If the Minister were to disagree with my approach, it would be quite nice to have it said at the Dispatch Box so that we can look at that. The key question is: are terms of service an integral part of the design and operation of a service and, if so, can we extend the term to make sure that all aspects of the services people consume are covered by adequate and effective terms of service? There is probably going to be division in the way we approach this because, clearly, whether they are terms of service or have another name, the actual enforcement of illegal and children’s duties will be effected by Ofcom, irrespective of the wording of the Bill—I do not want to question that. However, there is obviously an overlap into questions about adults and others who are affected by the terms of service. If you cannot identify what the terms of service say in relation to something you might not wish to receive because the terms of service are imprecise, how on earth are you going to operate the services, the toggles and things, around it? If you look at that and accept there will be pressure within the market to get these terms of service right, there will be a lot of dialogue with Ofcom. I accept that all that will happen, but it would be good if the position of the terms of service was clarified in the Bill before it becomes law and that Ofcom’s powers in relation to those are clarified—do they or do they not have the chance to review terms of service if they turn out to be ineffective in practice? If that is the case, how are we going to see this work out in practice in terms of what people will be able to do about it, either through redress or by taking the issue to court? I beg to move.

[Baroness Kidron (CB)]

I support these amendments, which were set out wonderfully by the noble Lord, Lord Stevenson. I want to raise a point made on Tuesday when the noble Baroness, Lady Merron, said that only 3% of people read terms of service and I said that 98% of people do not read them, so one of us is wrong, but I think the direction of travel is clear. She also used a very interesting phrase about prominence, and I want to use this opportunity to ask the Minister whether there is some lever whereby Ofcom can insist on prominence for certain sorts of material—a hierarchy of information, if you like—because these are really important pieces of information, buried in the wrong place so that even 2% or 3% of people may not find them.

[Lord Allan of Hallam (LD)]

My Lords, I am very pleased that the noble Lord, Lord Stevenson, has given us the opportunity to talk about terms of service, and I will make three points again, in a shorter intervention than on the previous group.

First, terms of service are critical as the impact of terms of service will generally be much greater in terms of the amount of intervention that occurs on content than it will ever be under the law. Terms of service create, in effect, a body of private law for a community, and they are nearly always a superset of the public law—indeed, it is very common for the first items of a terms of service to say, “You must not do anything illegal”. This raises the interesting question of “illegal where?”—what it generally means is that you must not do anything illegal in the jurisdiction in which the service provider is established. The terms of service will say, “Do not do anything illegal”, and then they will give a whole list of other things, as well as illegality, that you cannot do on the platform, and I think this is right because they have different characteristics.

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[Baroness Buscombe (Con)]

My Lords, before speaking to my Amendment 137, I want to put a marker down to say that I strongly support Amendment 135 in the name of my noble friend Lord Moylan. I will not repeat anything that he said but I agree with absolutely every word.

Amendment 137 is in my name and that of my noble and learned friend Lord Garnier and the noble Lord, Lord Moore of Etchingham. This amendment is one of five which I have tabled with the purpose of meeting a core purpose of the Bill. In the words of my noble friend the Minister in response to Amendment 1, it is

“to protect users of all ages from being exposed to illegal content”—[Official Report, 19/4/23; col. 724.]

—in short, to ensure that what is illegal offline is illegal online.

If accepted, this small group of amendments would, I strongly believe, make a really important difference to millions of people’s lives—people who are not necessarily listed in Clause 12. I therefore ask the Committee to allow me to briefly demonstrate the need for these amendments through the prism of millions of people and their families working and living in rural areas. They are often quite isolated and working alone in remote communities, and are increasingly at risk of or are already suffering awful online abuse and harassment. This abuse often goes way beyond suffering; it destroys businesses and a way of life.

I find it extraordinary that the Bill seems to be absent of anything to do with livelihoods. It is all about focusing on feelings, which of course are important—and the most important focus is children—but people’s businesses and livelihoods are being destroyed through abuse online.

Research carried out by the Countryside Alliance has revealed a deeply disturbing trend online that appears to be disproportionately affecting people who live in rural areas and who are involved in rural pursuits. Beyond direct abuse, a far more insidious tactic that activists have adopted involves targeting businesses involved in activities of which they disapprove, such as livestock farming or hosting shoots. They post fake reviews on platforms including Tripadvisor and Google Maps, and their aim is to damage the victim, their business and their reputation by, to put it colloquially, trashing their business and thereby putting off potential customers. This is what some call trolling.

Let me be clear that I absolutely defend, to my core, the right to freedom of expression and speech, and indeed the right to offend. Just upsetting someone is way below the bar for the Bill, or any legislation. I am deeply concerned about the hate crime—or non-crime—issue we debated yesterday; in fact, I put off reading the debate because I so disagree with this nonsense from the College of Policing.

Writing a negative review directly based on a negative experience is entirely acceptable in my book, albeit unpleasant for the business targeted. My amendments seek to address something far more heinous and wrong, which, to date, can only be addressed as libel and, therefore, through the civil courts. Colleagues in both your Lordships’ House and in another place shared with me tremendously upsetting examples from their constituents and in their neighbourhoods of how anonymous activists are ruining the lives of hard-working people who love this country and are going the extra mile to defend our culture, historic ways of life and freedoms.

Fortunately, through the Bill, the Government are taking an important step by introducing a criminal offence of false communications. With the leave of the Committee, I will briefly cite and explain the other amendments in order to make sense of Amendment 137. One of the challenges of the offence of false communications is the need to recognise that so much of the harm that underpins the whole reason why the Bill is necessary is the consequence of allowing anonymity. It is so easy to destroy and debilitate others by remaining anonymous and using false communications. Why be anonymous if you have any spine at all to stand up for what you believe? It is not possible offline—when writing a letter to a newspaper, for example—so why is it acceptable online? The usual tech business excuse of protecting individuals in rogue states is no longer acceptable, given the level of harm that anonymity causes here at home.

Therefore, my Amendment 106 seeks to address the appalling effect of harm, of whatever nature, arising from false or threatening communications committed by unverified or anonymous users—this is what we refer to as trolling. Amendments 266 and 267, in my name and those of my noble and learned friend Lord Garnier and my noble friend Lord Leicester, would widen the scope of this new and welcome offence of false communications to include financial harm, and harm to the subject of the false message arising from its communication to third parties.

The Bill will have failed unless we act beyond feelings and harm to the person and include loss of livelihood. As I said, I am amazed that it is not front and centre of the Bill after safety for our children. Amendment 268, also supported by my noble and learned friend, would bring within the scope of the communications offences the instigation of such offences by others—for example, Twitter storms, which can involve inciting others to make threats without doing so directly. Currently, we are unsure whether encouraging others to spread false information—for example, by posting fake reviews of businesses for ideologically motivated reasons—would become an offence under the Bill. We believe that it should, and my Amendment 268 would address this issue.

I turn briefly to the specifics of my Amendment 137. Schedule 7 lists a set of “priority offences” that social media platforms must act to prevent, and they must remove messages giving rise to certain offences. However, the list does not include the new communications offences created elsewhere in Part 10. We believe that this is a glaring anomaly. If there is a reason why the new communications offences are not listed, it is important that we understand why. I hope that my noble friend the Minister can explain.

The practical effect of Amendment 137 would be to include the communications offences introduced in the Bill and communications giving rise to them within the definition of “relevant offence” and “priority illegal content” for the purposes of Clause 53(4) and (7) and otherwise.

[Baroness Kidron (CB)]

I ask the Committee to have a level of imagination here because I have been asked to read the speech of the noble Viscount, Lord Colville—

[Baroness Stowell of Beeston (Con)]

I do not know who advised the noble Baroness—and forgive me for getting up and getting all former Leader on her—but this is a practice that we seem to have adopted in the last couple of years and that I find very odd. It is perfectly proper for the noble Baroness to deploy the noble Viscount’s arguments, but to read his speech is completely in contravention of our guidance.

[Baroness Kidron (CB)]

I beg the pardon of the Committee. I asked about it and was misinformed; I will do as the noble Baroness says.

The noble Viscount, Lord Colville, is unable to be with us. He put his name to Amendments 273, 275, 277 and 280. His concern is that the Bill sets the threshold for illegality too low and that in spite of the direction provided by Clause 170, the standards for determining illegality are too vague.

I will make a couple of points on that thought. Clause 170(6) directs that a provider must have

“reasonable grounds to infer that all elements necessary for the commission of the offence, including mental elements, are present or satisfied”,

but that does not mean that the platform has to be certain that the content is illegal before it takes it down. This is concerning when you take it in combination with what or who will make judgments on illegality.

If a human moderator makes the decision, it will depend on the resources and time available to them as to how much information they gather in order to make that judgment. Unlike in a court case, when a wide range of information and context can be gathered, when it comes to decisions about content online, these resources are very rarely available to human moderators, who have a vast amount of content to get through.

If an automated system makes the judgment, it is very well established that algorithms are not good at context—the Communications and Digital Committee took evidence on this repeatedly when I was on it. AI simply uses the information available in the content itself to make a decision, which can lead to significant missteps. Clause 170(3) provides the requirement for the decision-makers to judge whether there is a defence for the content. In the context of algorithms, it is very unclear how they will come to such a judgment from the content itself.

I understand that these are probing amendments, but I think the concern is that the vagueness of the definition will lead to too much content being taken down. This concern was supported by Parliament’s Joint Committee on Human Rights, which wrote to the former Culture Secretary, Nadine Dorries, on that matter. I apologise again.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I support the amendments in this group that probe how removing illegal material is understood and will be used under the Bill. The noble Lord, Lord Moylan, explained a lot of my concerns, as indeed did the noble Viscount, Lord Colville, via his avatar. We have heard a range of very interesting contributions that need to be taken seriously by the Government. I have put my name to a number of amendments.

The identification of illegal material might be clear and obvious in some cases—even many cases. It sounds so black and white: “Don’t publish illegal material”. But defining communications of this nature can be highly complex, so much so that it is traditionally reserved for law enforcement bodies and the judicial system. We have already heard from the noble Lord, Lord Moylan, that, despite Home Secretaries, this House, regulations and all sorts of laws having indicated that non-crime hate incidents, for example, should not be pursued by the police, they continue to pursue them as though they are criminal acts. That is exactly the kind of issue we have.

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[Lord Moylan (Con)]

My Lords, it is genuinely difficult to summarise such a wide-ranging debate, which was of a very high standard. Only one genuinely bright idea has emerged from the whole thing: as we go through Committee, each group of amendments should be introduced by the noble Lord, Lord Allan of Hallam, because it is only after I have heard his contribution on each occasion that I have begun to understand the full complexity of what I have been saying. I suspect I am not alone in that and that we could all benefit from hearing the noble Lord before getting to our feet. That is not meant to sound the slightest bit arch; it is absolutely genuine.

The debate expressed a very wide range of concerns. Concerns about gang grooming and recruiting were expressed on behalf of the right reverend Prelate the Bishop of Derby and my noble friend Lady Buscombe expressed concerns about trolling of country businesses. However, I think it is fair to say that most speakers focused on the following issues. The first was the definition of legality, which was so well explicated by the noble Lord, Lord Allan of Hallam. The second was the judgment bar that providers have to pass to establish whether something should be taken down. The third was the legislative mandating of private foreign companies to censor free speech rights that are so hard-won here in this country. These are the things that mainly concern us.

I was delighted that I found myself agreeing so much with what the noble Baroness, Lady Kidron, said, even though she was speaking in another voice or on behalf of another person. If her own sentiments coincide with the sentiments of the noble Viscount—

[Baroness Kidron (CB)]

I am sorry to intrude, but I must say now on the record that I was speaking on my own behalf. The complication of measuring and those particular things are terribly important to establish, so I am once again happy to agree with the noble Lord.

[Lord Moylan (Con)]

I am delighted to hear the noble Baroness say that, and it shows that that pool of common ground we share is widening every time we get to our feet. However, the pool is not particularly widening, I am afraid to say—at least in respect of myself; other noble Lords may have been greatly reassured—as regards my noble friend the Minister who, I am afraid, has not in any sense addressed the issues about free speech that I and many other noble Lords raised. On some issues we in the Committee are finding a consensus that is drifting away from the Minister. We probably need to put our heads together more closely on some of these issues with the passage of time in Committee.

My noble friend also did not say anything that satisfied me in respect of the practical operation of these obligations for smaller sites. He speaks smoothly and persuasively of risk-based proactive approaches without saying that, for a large number of sites, this legislation will mean a complete re-engineering of their business model. For example, where Wikipedia operates in a minority language, such as in Welsh Wikipedia, which is the largest Welsh language website in the world, if its model is to involve monitoring what is put out by the community and correcting it as it goes along, rather than having a model in advance that is designed to prevent things being put there in the first place, then it is very likely to close down. If that is one of the consequences of this Bill the Government will soon hear about it.

Finally, although I remain concerned about public order offences, I have to say to the Minister that if he is so concerned about the dissemination of alarm among the population under the provisions of the Public Order Act, what does he think that His Majesty’s Government were doing on Sunday at 3 pm? I beg leave to withdraw the amendment.

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Moved by

[Baroness Kidron]

20: Clause 10, page 9, line 11, leave out paragraphs (a) to (h) and insert—
“(a) the level of risk that children who are users of the service encounter the harms as outlined in Schedule (Online harms to children) by means of the service;(b) any of the level of risks to children encountered singularly or in combination, having regard to—(i) the design of functionalities, algorithms and other features that present or increase risk of harm, such as low-privacy profile settings by default;(ii) the business model, revenue model, governance, terms of service and other systems and processes or mitigation measures that may reduce or increase the risk of harm;(iii) risks which can build up over time;(iv) the ways in which level of risks can change when experienced in combination with others;(v) the level of risk of harm to children in different age groups;(vi) the level of risk of harm to children with certain characteristics or who are members of certain groups; and(vii) the different ways in which the service is used including but not limited to via virtual and augmented reality technologies, and the impact of such use on the level of risk of harm that might be suffered by children;(c) whether the service has shown regard to the rights of children as set out in the United Nations Convention on the Rights of the Child (see general comment 25 on children’s rights in relation to the digital environment).”Member’s explanatory statement
This amendment would require providers to look at and assess risks on their platform in the round and in line with the 4 Cs of online risks to children (content, contact, conduct and contractual/commercial risks). Although these risks will not be presented on every service, this amendment requires providers to reflect on these risks, so they are not forgotten and can be built into future development of the service.

[Baroness Kidron (CB)]

My Lords, this amendment and Amendments 74, 93 and 123 are part of a larger group that have been submitted as a package loosely referred to as the AV and harms package. They have been the subject of much private debate with the Government, for which we are grateful, and among parliamentarians, and have featured prominently in the media. The amendments are in my name and those of the noble Lord, Lord Bethell, the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Stevenson, but enjoy the support of a vast array of Members of both Houses. I thank all those who have voiced their support.

The full package of amendments defines and sets out the rules of the road for age assurance, including the timing of its introduction, and the definition of terms such as age verification and age assurance. They introduce the concept of measuring the efficacy of systems with one eye on the future so that we as parliamentarians can indicate where and when we feel that proportionality is appropriate and where it is simply not—for example, in relation to pornography. In parallel, we have developed a schedule of harms, which garners rather fewer column inches but is equally important in establishing Parliament’s intention. It is that schedule of harms that is up for debate today.

Before I lay out the amendment, I thank the 26 children’s charities which have so firmly got behind this package and acknowledge, in particular, Barnardo’s, CEASE and 5Rights, of which I am chair, which have worked tirelessly to ensure that the full expertise of children’s charities has been embedded in these amendments. I also pay tribute to the noble Baroness, Lady Benjamin, who in this area of policy has shown us all the way.

The key amendment in this group is Amendment 93, which would place a schedule of harms to children in the Bill. There are several reasons for doing so, the primary one being that by putting them in the Bill we are stating the intention of Parliament, which gives clarity to companies and underlines the authority of Ofcom to act on these matters. Amendments 20, 74 and 123 ensure that the schedule is mirrored in risk assessments and tasks Ofcom with updating its guidance every six months to capture new and emerging harms, and as such are self-evident.

The proposed harms schedule is centred around the four Cs, a widely used and understood taxonomy of harm used in legislation and regulation around the globe. Importantly, rather than articulate individual harms that may change over time, it sets its sight on categories of harm: content, contact, conduct and contract, which is sometimes referred to as commercial harm. It also accounts for cumulative harms, where two or more risk factors create a harm that is greater than any single harm or is uniquely created by the combination. The Government’s argument against the four Cs is that they are not future-proof, which I find curious since the very structure of the four Cs is to introduce broad categories of harm to which harms can be added, particularly emerging harms. By contrast, the Government are adding an ever-growing list of individual harms.

I wish to make three points in favour of our package of amendments relating first to language, secondly to the nature of the digital world, and finally to clarity of purpose. It is a great weakness of the Bill that it consistently introduces new concepts and language—for example, the terms “primary priority content”, “priority content” and “non-designated content”. These are not terms used in other similar Bills across the globe, they are not evident in current UK law and they do not correlate with established regimes, such as equalities legislation or children’s rights under the convention, more of which in group 7.

The question of language is non-trivial. It is the central concern of those who fight CSAE around the world, who frequently find that enforcement against perpetrators or takedown is blocked by legal systems that define child sexual abuse material differently—not differently in some theoretical sense but because the same image can be categorised differently in two countries and then be a barrier to enforcement across jurisdictions. Leadership from WeProtect, the enforcement community and representatives that I recently met from Africa, South America and Asia have all made this point. It undermines the concept of UK leadership in child protection that we are wilfully and deliberately rejecting accepted language which is embedded in treaties, international agreements and multilateral organisations to start again with our own, very likely with the same confused outcome.

Secondly, I am concerned that while both the Bill and the digital world are predicated on system design, the harms are all articulated as content with insufficient emphasis on systems harms, such as careless recommendations, spreading engagement and the sector-wide focus on maximising engagement, which are the very things that create the toxic and dangerous environment for children. I know, because we have discussed it, that the Minister will say that this is all in the risk assessment, but the risk assessment asks regulated companies to assess how a number of features contribute to harm, mostly expressed as content harm.

What goes through my mind is the spectre of Meta’s legal team, which I watched for several days during Molly Russell’s inquest; they stood in a court of law and insisted that hundreds, in fact thousands, of images of cut bodies and depressive messages did not constitute harm. Rather, they regarded them as cries for help or below the bar of harm as they interpreted it. Similarly, there was material that featured videos of people jumping off buildings—some of them sped-up versions of movie clips edited to suggest that jumping was freedom—and I can imagine a similar argument that says that kind of material cannot be considered harmful, because in another context it is completely legitimate. Yet this material was sent to Molly at scale.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, I really appreciated the contribution from the noble Baroness, Lady Ritchie of Downpatrick, because she asked a lot of questions about this group of amendments. Although I might be motivated by different reasons, I found it difficult to fully understand the impact of the amendments, so I too want to ask a set of questions.

Harm is defined in the Bill as “physical or psychological harm”, and there is no further explanation. I can understand the frustration with that and the attempts therefore to use what are described as the

“widely understood and used 4 Cs of online risk to children”.

They are not widely understood by me, and I have ploughed my way through it. I might well have misunderstood lots in it, but I want to look at and perhaps challenge some of the contents.

I was glad that Amendment 20 recognises the level of risk of harm to different age groups. That concerns me all the time when we talk about children and young people, and then end up treating four year-olds, 14 year-olds and 18 year-olds. I am glad that that is there, and I hope that we will look at it again in future.

I want to concentrate on Amendment 93 and reflect and comment more generally on the problem of a definition, or a lack of definition, of harm in the Bill. For the last several years that we have been considering bringing this Bill to this House and to Parliament, I have been worried about the definition of psychological harm. That is largely because this category has become ever more expansive and quite subjective in our therapeutic age. It is a matter of some discussion and quite detailed work by psychologists and professionals, who worry that there is an expanding concept group of what is considered harmful and what psychological harm really means.

As an illustration, I was invited recently to speak to a group of sixth-formers and was discussing things such as trigger warnings and so on. They said, “Well, you know, you’ve got to understand what it’s like”—they were 16 year-olds. “When we encounter certain material, it makes us have PTSD”. I was thinking, “No, it doesn’t really, does it?” Post-traumatic stress disorder is something that you might well gain if you have been in the middle of a war zone. The whole concept of triggering came from psychological and medical insights from the First World War, which you can understand. If you hear a car backfiring, you think it is somebody shooting at you. But the idea here is that we should have trigger warnings on great works of literature and that if we do not it will lead to PTSD.

I am not being glib, because an expanded, elastic and pathologised view of harm is being used quite cavalierly and casually in relation to young people and protecting them, often by the young people themselves. It is routinely used to close down speech as part of the cancel culture wars, which, as noble Lords know, I am interested in. Is there not a danger that this concept of harm is not as obvious as we think, and that the psychological harm issue makes it even more complicated?

The other thing is that Amendment 93 says:

“The harms in this Schedule are a non-exhaustive list of categories and other categories may be relevant”.


As with the discussion on whose judgment decides the threshold for removing illegal material, I think that judging what is harmful is even more tricky for the young in relation to psychological harm. I was reminded of that when the noble Baroness, Lady Kidron, complained that what she considered to be obviously and self-evidently harmful, Meta did not. I wondered whether that is just the case with Meta, or whether views will differ when it comes to—

[Baroness Kidron (CB)]

The report found—I will not give a direct quotation—that social media contributed to the death of Molly Russell, so it was the court’s judgment, not mine, that Meta’s position was indefensible.

[Baroness Fox of Buckley (Non-Afl)]

I completely understand that; I was making the point that there will be disagreements in judgments. In that instance, it was resolved by a court, but we are talking about a situation where I am not sure how the judgment is made.

In these amendments, there are lists of particular harms—a variety are named, including self-harm—and I wanted to provide some counterexamples of what I consider to be harms. I have been inundated by algorithmic adverts for “Naked Education” on Channel 4, maybe because of the algorithms I am on. I think that the programme is irresponsible; I say that having watched it, rather than just having read a headline. Channel 4 is posing this programme with naked adults and children as educational by saying that it is introducing children to the naked body. I think it is harmful for children and that it should not be on the television, but it is advertised on social media—I have seen quite a lot of it.

The greatest example of self-harm we encounter at present is when gender dysphoric teenagers—as well as some younger than teenagers; they are predominately young women—are affirmed by adults, as a kind of social contagion, into taking body-changing and body-damaging hormones and performing self-mutilation, whether by breast binding or double mastectomies, which is advertised and praised by adults. That is incredibly harmful for young people, and it is reflected online at lot, because much of this is discussed, advertised or promoted online.

This is related to the earlier contributions, because I am asking: should those be added to the list of obvious harms? Although not many noble Lords are in the House now, if there were many more here, they would object to what I am saying by stating, “That is not harmful at all. What is harmful is what you’re saying, Baroness Fox, because you’re causing psychological harm to all those young people by being transphobic”. I am raising these matters because we think we all agree that there is a consensus on what is harmful material online for young people, but it is not that straightforward.

The amendment states that the Bill should target any platform that posts

“links to, or … encourages child users to seek”

out “dangerous or illegal activity”. I understand “illegal activity”, but on “dangerous” activities, I assume that we do not mean extreme sports, mountain climbing and so on, which are dangerous—that comes to mind probably because I have spent too much time with young people who spend their whole time looking at those things. I worry about the unintended consequences of things being banned or misinterpreted in that way.

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[Baroness Fox of Buckley (Non-Afl)]

I appreciate that that this is the case we all have in the back of our minds. I am asking whether, when Meta says it is content agnostic, the Bill is the appropriate place for us to list the topics that we consider harmful. If we are to do that, I was giving examples of contentious, harmful topics. I might have got this wrong—

[Baroness Kidron (CB)]

I will answer the noble Baroness more completely when I wind up, but I just want to say that she is missing the point of the schedule a little. Like her, I am concerned about the way we concentrate on content harms, but she is bringing it back to content harms. If she looks at it carefully, a lot of the provisions are about contact and conduct: it is about how the system is pushing children to do certain things and pushing them to certain places. It is about how things come together, and I think she is missing the point by keeping going back to individual pieces of content. I do not want to take the place of the Minister, but this is a systems and processes Bill; it is not going to deal with individual pieces of content in that way. It asks, “Are you creating these toxic environments for children? Are you delivering this at scale?” and that is the way we must look at this amendment.

[Baroness Fox of Buckley (Non-Afl)]

I will finish here, because we have to get on, but I did not introduce content; it is in the four Cs. One of the four Cs is “content” and I am reacting to amendments tabled by the noble Baroness. I do not think I am harping on about content; I was responding to amendments in which content was one of the key elements.

[Baroness Kidron (CB)]

Let us leave it there.

[Baroness Benjamin (LD)]

My Lords, I speak in support of these amendments with hope in my heart. I thank the noble Baroness, Lady Kidron, and the noble Lord, Lord Bethell, for leading the charge with such vigour, passion and determination: I am with them all the way.

The Government have said that the purpose of the Bill is to protect children, and it rests on our shoulders to make sure it delivers on this mission. Last week, on the first day in Committee, the Minister said:

“Through their duties of care, all platforms will be required proactively to identify and manage risk factors associated with their services in order to ensure that users do not encounter illegal content and that children are protected from harmful content. To achieve this, they will need to design their services to reduce the risk of harmful content or activity occurring and take swift action if it does.—[Official Report, 19/4/23; cols. 274-75.]


This is excellent and I thank the Government for saying it. But the full range of harms and risk to children will not be mitigated by services if they do not know what they are expected to risk-assess for and if they must wait for secondary legislation for this guidance.

The comprehensive range of harms children face every day is not reflected in the Bill. This includes sexual content that does not meet the threshold of pornography. This was highlighted recently in an investigation into TikTok by the Telegraph, which found that a 13 year-old boy was recommended a video about the top 10 porn-making countries, and that a 13 year-old girl was shown a livestream of a pornography actor in her underwear answering questions from viewers. This content is being marketed to children without a user even seeking out pornographic content, but this would still be allowed under the Bill.

Furthermore, high-risk challenges, such as the Benadryl and blackout challenges, which encourage dangerous behaviour on TikTok, are not dealt with in the Bill. Some features, such as the ability of children to share their location, are not dealt with either. I declare an interest as vice-president of Barnardo’s, which has highlighted how these features can be exploited by organised criminal gangs that sexually exploit children to keep tabs on them and trap them in a cycle of exploitation.

It cannot be right that the user-empowerment duties in the Bill include a list of harmful content that services must enable adults to toggle off, yet the Government refuse to produce this list for children. Instead, we have to wait for secondary legislation to outline harms to children, causing further delay to the enforcement of services’ safety duties. Perhaps the Minister can explain why this is.

The four Cs framework of harm, as set out in these amendments, is a robust framework that will ensure service risk assessments consider the full range of harms children face. I will repeat it once again: childhood lasts a lifetime, so we cannot fail children any longer. Protections are needed now, not in years to come. We have waited far too long for this. Protections need to be fast-tracked and must be included in the Bill. That is why I fully support these amendments.

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[Lord Parkinson of Whitley Bay (Con)]

I was about to list the four Cs briefly in order, which will bring me on to commercial or contract risk. Perhaps I may do that and return to those points.

I know that there have been concerns about whether the specific risks highlighted in the new schedule will be addressed by the Bill. In terms of the four Cs category of content risks, there are specific duties for providers to protect children from illegal content, such as content that intentionally assists suicide, as well as content that is harmful to children, such as pornography. Regarding conduct risks, the child safety duties cover harmful conduct or activity such as online bullying or abuse and, under the illegal content safety duties, offences relating to harassment, stalking and inciting violence.

With regard to commercial or contract risks, providers specifically have to assess the risks to children from the design and operation of their service, including their business model and governance under the illegal content and child safety duties. In relation to contact risks, as part of the child safety risk assessment, providers will need specifically to assess contact risks of functionalities that enable adults to search for and contact other users, including children, in a way that was set out by my noble friend Lord Bethell. This will protect children from harms such as harassment and abuse, and, under the illegal content safety duties, all forms of child sexual exploitation and abuse, including grooming.

[Baroness Kidron (CB)]

I agree that content, although unfathomable to the outside world, is defined as the Minister says. However, does that mean that when we see that

“primary priority content harmful to children”

will be put in regulations by the Secretary of State under Clause 54(2)—ditto Clause 54(3) and (4)—we will see those contact risks, conduct risks and commercial risks listed as primary priority, priority and non-designated harms?

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[Lord Parkinson of Whitley Bay (Con)]

I have tried to outline the Bill’s definition of content, which I think will give some reassurance that other concerns that noble Lords have raised are covered. I will turn in a moment to address priority and primary priority content, if the noble Baroness will allow me to do that, and then perhaps intervene again if I have not done so to her satisfaction. I want to set that out and try to keep track of all the questions which have been posed as I do so.

For now, I know there have been concerns from some noble Lords that if functionalities are not labelled as harm in the legislation they would not be addressed by providers, and I reassure your Lordships’ House that this is not the case. There is an important distinction between content and other risk factors such as, for instance, an algorithm, which without content cannot risk causing harm to a child. That is why functionalities are not covered by the categories of primary, priority and priority content which is harmful to children. The Bill sets out a comprehensive risk assessment process which will cover content or activity that poses a risk of harm to children and other factors, such as functionality, which may increase the risk of harm. As such, the existing children’s risk assessment criteria already cover many of the changes proposed in this amendment. For example, the duties already require service providers to assess the risk of harm to children from their business model and governance. They also require providers to consider how a comprehensive range of functionalities affect risk, how the service is used and how the use of algorithms could increase the risks to children.

Turning to the examples of harmful content set out in the proposed new schedule, I am happy to reassure the noble Baroness and other noble Lords that the Government’s proposed list of primary, priority and priority content covers a significant amount of this content. In her opening speech she asked about cumulative harm—that is, content sent many times or content which is harmful due to the manner of its dissemination. We will look at that in detail on the next group as well, but I will respond to the points she made earlier now. The definition of harm in the Bill under Clause 205 makes it clear that physical or psychological harm may arise from the fact or manner of dissemination of the content, not just the nature of the content—content which is not harmful per se, but which if sent to a child many times, for example by an algorithm, would meet the Bill’s threshold for content that is harmful to children. Companies will have to consider this as a fundamental part of their risk assessment, including, for example, how the dissemination of content via algorithmic recommendations may increase the risk of harm, and they will need to put in place proportionate and age-appropriate measures to manage and mitigate the risks they identify. I followed the exchanges between the noble Baronesses, Lady Kidron and Lady Fox, and I make it clear that the approach set out by the Bill will mean that companies cannot avoid tackling the kind of awful content which Molly Russell saw and the harmful algorithms which pushed that content relentlessly at her.

This point on cumulative harm was picked up by my noble friend Lord Bethell. The Bill will address cumulative risk where it is the result of a combination of high-risk functionality, such as live streaming, or rewards in service by way of payment or non-financial reward. This will initially be identified through Ofcom’s sector risk assessments, and Ofcom’s risk profiles and risk assessment guidance will reflect where a combination of risk in functionalities such as these can drive up the risk of harm to children. Service providers will have to take Ofcom’s risk profiles into account in their own risk assessments for content which is illegal or harmful to children. The actions that companies will be required to take under their risk assessment duties in the Bill and the safety measures they will be required to put in place to manage the services risk will consider this bigger-picture risk profile.

The amendments of the noble Baroness, Lady Kidron, would remove references to primary priority and priority harmful content to children from the child risk assessment duties, which we fear would undermine the effectiveness of the child safety duties as currently drafted. That includes the duty for user-to-user providers to prevent children encountering primary priority harms, such as pornography and content that promotes self-harm or suicide, as well as the duty to put in place age-appropriate measures to protect children from other harmful content and activity. As a result, we fear these amendments could remove the requirement for an age-appropriate approach to protecting children online and make the requirement to prevent children accessing primary priority content less clear.

The noble Baroness, Lady Kidron, asked in her opening remarks about emerging harms, which she was right to do. As noble Lords know, the Bill has been designed to respond as rapidly as possible to new and emerging harms. First, the primary priority and priority list of content can be updated by the Secretary of State. Secondly, it is important to remember the function of non-designated content that is harmful to children in the Bill—that is content that meets the threshold of harmful content to children but is not on the lists designated by the Government. Companies are required to understand and identify this kind of content and, crucially, report it to Ofcom. Thirdly, this will inform the actions of Ofcom itself in its review and report duties under Clause 56, where it is required to review the incidence of harmful content and the severity of harm experienced by children as a result of it. This is not limited to content that the Government have listed as being harmful, as it is intended to capture new and emerging harms. Ofcom will be required to report back to the Government with recommendations on changes to the primary priority and priority content lists.

I turn to the points that the noble Lord, Lord Knight of Weymouth, helpfully raised earlier about things that are in the amendments but not explicitly mentioned in the Bill. As he knows, the Bill has been designed to be tech-neutral, so that it is future-proof. That is why there is no explicit reference to the metaverse or virtual or augmented reality. However, the Bill will apply to service providers that enable users to share content online or interact with each other, as well as search services. That includes a broad range of services such as websites, applications, social media sites, video games and virtual reality spaces such as the metaverse; those are all captured. Any service that allows users to interact, as the metaverse does, will need to conduct a children’s access assessment and comply with the child safety duties if it is likely to be accessed by children.

Amendment 123 from the noble Baroness, Lady Kidron, seeks to amend Clause 48 to require Ofcom to create guidance for Part 3 service providers on this new schedule. For the reasons I have just set out, we do not think it would be workable to require Ofcom to produce guidance on this proposed schedule. For example, the duty requires Ofcom to provide guidance on the content, whereas the proposed schedule includes examples of risky functionality, such as the frequency and volume of recommendations.

I stress again that we are sympathetic to the aim of all these amendments. As I have set out, though, our analysis leads us to believe that the four Cs framework is simply not compatible with the existing architecture of the Bill. Fundamental concepts such as risk, harm and content would need to be reconsidered in the light of it, and that would inevitably have a knock-on effect for a large number of clauses and timing. The Bill has benefited from considerable scrutiny—pre-legislative and in many discussions over many years. The noble Baroness, Lady Kidron, has been a key part of that and of improving the Bill. The task is simply unfeasible at this stage in the progress of the Bill through Parliament and risks delaying it, as well as significantly slowing down Ofcom’s implementation of the child safety duties. We do not think that this slowing down is a risk worth taking, because we believe the Bill already achieves what is sought by these amendments.

Even so, I say to the Committee that we have listened to the noble Baroness, Lady Kidron, and others and have worked to identify changes which would further address these concerns. My noble friend Lady Harding posed a clear question: if not this, what would the Government do instead? I am pleased to say that, as a result of the discussions we have had, the Government have decided to make a significant change to the Bill. We will now place the categories of primary priority and priority content which is harmful to children on the face of the Bill, rather than leaving them to be designated in secondary legislation, so Parliament will have its say on them.

We hope that this change will reassure your Lordships that protecting children from the most harmful content is indeed the priority for the Bill. That change will be made on Report. We will continue to work closely with the noble Baroness, Lady Kidron, my noble friends and others, but I am not able to accept the amendments in the group before us today. With that, I hope that she will be willing to withdraw.

[Baroness Kidron (CB)]

I thank all the speakers. There were some magnificent speeches and I do not really want to pick out any particular ones, but I cannot help but say that the right reverend Prelate described the world without the four Cs. For me, that is what everybody in the Box and on the Front Bench should go and listen to.

I am grateful and pleased that the Minister has said that the Government are moving in this direction. I am very grateful for that but there are a couple of things that I have to come back on. First, I have swiftly read Amendment 205’s definition of harm and I do not think it says that you do not have to reach a barrier of harm; dissemination is quite enough. There is always the problem of what the end result of the harm is. The thing that the Government are not listening to is the relationship between the risk assessment and the harm. It is about making sure that we are clear that it is the functionality that can cause harm. I think we will come back to this at another point, but that is what I beg them to listen to. Secondly, I am not entirely sure that it is correct to say that the four Cs mean that you cannot have primary priority, priority and so on. That could be within the schedule of content, so those two things are not actually mutually exclusive. I would be very happy to have a think about that.

What was not addressed in the Minister’s answer was the point made by the noble Lord, Lord Allan of Hallam, in supporting the proposal that we should have in the schedule: “This is what you’ve got to do; this is what you’ve got to look at; this is what we’re expecting of you; and this is what Parliament has delivered”. That is immensely important, and I was so grateful to the noble Lord, Lord Stevenson, for putting his marker down on this set of amendments. I am absolutely committed to working alongside him and to finding ways around this, but we need to find a way of stating it.

Ironically, that is my answer to both the noble Baronesses, Lady Ritchie and Lady Fox: we should have our arguments here and now, in this Chamber. I do not wish to leave it to the Secretary of State, whom I have great regard for, as it happens, but who knows: I have seen a lot of Secretaries of State. I do not even want to leave it to the Minister, because I have seen a lot of Ministers too—ditto Ofcom, and definitely not the tech sector. So here is the place, and we are the people, to work out the edges of this thing.

Not for the first time, my friend, the noble Baroness, Lady Harding, read out what would have been my answer to the noble Baroness, Lady Ritchie. I have gone round and round, and it is like the Marx brothers’ movie: in the end, harm is defined by subsection (4)(c), but that says that harm will defined by the Secretary of State. It goes around like that through the Bill.

Online Safety Bill

Baroness Kidron Excerpts

Committee stage
Tuesday 25th April 2023 Lords Chamber

[Lord Allan of Hallam (LD)]

The Twitter scenario, and other scenarios of mixed sites, are some of the most challenging that we have to deal with. But I would say, straightforwardly, “Look, 13% is a big chunk, but the primary purpose of Twitter is not the delivery of pornography”. I use Twitter on a daily basis and I have never seen pornography on it. I understand that it is there and that people can go for it, and that is an issue, but I think people out there would say that for most people, most of the time, the primary purpose of Twitter is not pornography.

What we want to do—in answer to the noble Lord’s second point—is create an incentive for people to be recategorised in the right direction. There is an assumption here that it is all going to be about gaming the system. I actually think that there is an opportunity here for genuine changes. There will be a conversation with Twitter. It will be interesting, given Twitter’s current management—apparently it is run by a dog, so there will be a conversation with the dog that runs Twitter. In that conversation, the regulator, Ofcom, on our behalf, will be saying, “You could change your terms of service and get rid of pornography”. Twitter will say yes or no. If it says no, Ofcom will say, “Well, here are all the things we expect you to do in order to wall off that part of the site”.

That is a really healthy and helpful conversation to have with Twitter. I expect it is listening now and already thinking about how it will respond. But it would expect that kind of treatment and conversation to be different; and I think the public would expect that conversation to be a different and better conversation than just saying “Twitter, you’re Pornhub. We’re just going to treat you like Pornhub”.

That is the distinction. As I say, we have an opportunity to get people to be more robust about either limiting or removing pornography, and I fear that the amendments we have in front of us would actually undermine rather than enhance that effort.

[Baroness Kidron (CB)]

At the centre of this is the question of whether we are trying to block the entire service or block at the level of porn content. It is the purpose of a set of amendments in the names of the noble Lord, Lord Bethell, myself and a number of other noble Lords to do exactly the latter. But I have to say to the noble Baroness that I am very much in sympathy with, first, putting porn behind an age gate; secondly, having a commencement clause; and, thirdly and very importantly—this has not quite come up in the conversation—saying that harms must be on the face of the Bill and that porn is not the only harm. I say, as a major supporter of the Bereaved Families for Online Safety, that “Porn is the only harm children face” would be a horrendous message to come from this House. But there is nothing in the noble Baroness’s amendments, apart from where the action happens, that I disagree with.

I also felt that the noble Baroness made an incredibly important point when she went into detail on Amendment 125A. I will have to read her speech in order to follow it, because it was so detailed, but the main point she made is salient and relates to an earlier conversation: the reason we have Part 5 is that the Government have insisted on this ridiculous thing about user-to-user and search, instead of doing it where harm is. The idea that you have Part 5, which is to stop the loophole of sites that do not have user-to-user, only to find that they can add user-to-user functionality and be another type of site, is quite ludicrous. I say to the Committee and the Minister, who I am sure does not want me to say it, “If you accept Amendment 2, you’d be out of that problem”—because, if a site was likely to be accessed by children and it had harm and we could see the harm, it would be in scope. That is the very common-sense approach. We are where we are, but let us be sensible about making sure the system cannot be gamed, because that would be ludicrous and would undermine everybody’s efforts—those of the Government and of all the campaigners here.

I just want to say one more thing because I see that the noble Lord, Lord Moylan, is back in his place. I want to put on the record that age assurance and identity are two very separate things. I hope that, when we come to debate the package of harms—unfortunately, we are not debating them all together; we are debating harms first, then AV—we get to the bottom of that issue because I am very much in the corner of the noble Lord and the noble Baroness, Lady Fox, on this. Identity and age assurance must not be considered the same thing by the House, and definitely not by the legislation.

Online Safety Bill

Baroness Kidron Excerpts

Committee stage
Tuesday 25th April 2023 Lords Chamber

Moved by

[Baroness Kidron]

2: Clause 3, page 3, line 14, at end insert—
“(d) an internet service, other than a regulated user-to-user service or search service, that meets the child user condition and enables or promotes harmful activity and content as set out in Schedule (Online harms to children).”Member’s explanatory statement
This amendment would mean any service that meets the 'child user condition' and enables or promotes harmful activity and content to children, as per a new Schedule, would be in scope of the regulation of the bill.

[Baroness Kidron (CB)]

My Lords, I refer the Committee to my interests as put in the register and declared in full at Second Reading. I will speak to Amendment 2 in my name and those of the right reverend Prelate the Bishop of Oxford and the noble Baroness, Lady Harding, to Amendments 3 and 5 in my name, and briefly to Amendments 19, 22, 298 and 299 in the name of the noble Baroness, Lady Harding.

The digital world does not have boundaries in the way that the Bill does. It is an ecosystem of services and products that are interdependent. A user journey is made up of incremental signals, nudges and enticements that mean that, when we use our devices, very often we do not end up where we intended to start. The current scope covers user-to-user, search and commercial porn services, but a blog or website that valorises self-harm and depression or suggests starving yourself to death is still exempt because it has limited functionality. So too are games without a user-to-user function, in spite of the known harm associated with game addiction highlighted recently by Professor Henrietta Bowden-Jones, national expert adviser on gambling harms, and the World Health Organization in 2019 when it designated gaming disorder as a behavioural addiction.

There is also an open question about immersive technologies, whose protocols are still very much in flux. I am concerned that the Government are willing to assert that these environments will meet the bar of user-to-user when those that are still building immersive environments make quite clear that that is not a given. Indeed, later in Committee I will be able to demonstrate that already the very worst harms are happening in environments that are not clearly covered by the Bill.

Another unintended consequence of the current drafting is that the task of working out whether you are on a regulated or unregulated service is left entirely to children. That is not what we had been promised. In December the Secretary of State wrote in a public letter to parents,

“I want to reassure every person reading this letter that the onus for keeping young people safe online will sit squarely on the tech companies’ shoulders”.

It is likely that the Minister will suggest that the limited- functionality services will be caught by the gatekeepers. But, as in the case of immersive technology, it is dangerous to suggest that, just because search and user- to-user are the primary access points in 2023, that will remain the case. We must be more forward thinking and ensure that services likely to be accessed that promote harm are in scope by default.

Amendments 3 and 5 are consequential, so I will not debate them now. I have listened to the Government and come back with a reasonable and implementable amendment that applies only to services that are likely to be accessed by children and that enable harm. I now ask the Government to listen and do likewise.

Amendments 92 and 193 cover the child user condition. The phrase “likely to be accessed”, introduced in this House into what became the Data Protection Act 2018, is one of the most unlikely successful British exports. Both the phrase and its definition, set out by the ICO, have been embedded in regulations in countries the world over—yet the Bill replaces this established language while significantly watering down the definition.

The Bill requires

“a significant number of children”

to use the service, or for the service to be

“likely to attract a significant number of users who are children”.

“Significant” in the Bill is defined relative to the overall UK user base, which means that extremely large platforms could deem a few thousand child users not significant compared with the several million-strong user base. Since only services that cross this threshold need comply with the child safety duties, thousands of children will not benefit from the safety duties that the Minister told us last week were at the heart of the Bill.

Amendment 92 would put the ICO’s existing and much-copied definition into the Bill. It says a service is

“likely to be accessed by children”

if

“the service is designed or intended for use by children … children form a substantive and identifiable user group … the possibility of a child accessing the service is more probable than not, taking into consideration … the nature and content of the service and whether that has particular appeal for children … the way in which the service is accessed and any measures in place to prevent children gaining access … market research, current evidence on user behaviour, the user base of similar or existing services”

that are likely to be accessed.

Having two phrases and definitions is bad for business and even worse for regulators. The ICO has first-mover advantage and a more robust test. It is my contention that parents, media and perhaps even our own colleagues would be very shocked to know that the definition in the Bill has the potential for many thousands, and possibly tens of thousands, of children to be left without the protections that the Bill brings forward. Perhaps the Minister could explain why the Government have not chosen regulatory alignment, which is good practice.

Finally, I will speak briefly in support of Amendments 19, 22, 298 and 299. I am certain that the noble Baroness, Lady Harding, will spell out how the app stores of Google and Apple are simply a subset of “search”, in that they are gatekeepers to accessing more than 5 million apps worldwide and the first page of each is indeed a search function. Their inclusion should be obvious, but I will add a specific issue about which I have spoken directly with both companies and about which the 5Rights Foundation, of which I am chair, has written to the ICO.

When we looked at the age ratings of apps across Google Play Store and Apple, four things emerged. First, apps are routinely rated much lower than their terms and conditions: for example, Amazon Shopping says 18 but has an age rating of 4 on Apple. This pattern goes across both platforms, covering social sites, gaming, shopping, et cetera.

Secondly, the same apps and services did not have the same age rating across both services, which, between them, are gatekeepers for more than 95% of the app market. In one extreme case, an app rated four on one of them was rated 16 on the other, with other significant anomalies being extremely frequent.

Thirdly, almost none of the apps considered their data protection duties in coming to a decision on their age rating, which is a problem, since privacy and safety and inextricably linked.

Finally, in the case of Apple, using a device registered to a 15 year-old, we were able to download age-restricted apps including a dozen or more 18-plus dating sites. In fairness, I give a shoutout to Google, which, because of the age-appropriate design code, chose more than a year ago not to show 18-plus content to children in its Play Store. So this is indeed a political and business choice and not a question of technology. Millions of services are accessed via the App Store. Given the Government’s position—that gatekeepers have specific responsibilities in relation to harmful content and activity—surely the amendments in the name of the noble Baroness, Lady Harding, are necessary.

My preference was for a less complicated Bill based on principles and judged on outcomes. I understand that that ship has sailed, but it is not acceptable for the Government now to use the length and complexity of the Bill as a reason not to accept amendments that would fill loopholes where harm has been proven. It is time to deliver on the promises made to parents and children, and to put the onus for keeping young people safe online squarely on tech companies’ shoulders. I beg to move.

[Baroness Harding of Winscombe (Con)]

My Lords, I rise to speak to Amendments 19, 22, 298 and 299 in my name and those of the noble Baroness, Lady Stowell, and the noble Lords, Lord Knight and Lord Clement-Jones. I will also briefly add at the end of my speech my support for the amendments in the name of my friend, the noble Baroness, Lady Kidron. It has been a huge privilege to be her support act all the way from the beginnings of the age-appropriate design code; it feels comfortable to speak after her.

I want briefly to set out what my amendments would do. Their purpose is to bring app stores into the child protection elements of the Bill. Amendment 19 would require app stores to prepare

“risk assessments equal to user-to-user services due to their role in distributing online content through apps to children and as a primary facilitator of user-to-user”

services reaching children. Amendment 22 would mandate app stores

“to use proportionate and proactive measures, such as age assurance, to prevent children”

coming into contact with

“primary priority content that is harmful to children”.

Amendments 298 and 299 would simply define “app” and “app stores”.

Let us be clear what app stores do. They enable customers to buy apps and user-to-user services. They enable customers to download free apps. They offer up curated content in the app store itself and decide what apps someone would like to see. They enable customers to search for apps for user-to-user content. They provide age ratings; as the noble Baroness, Lady Kidron, said, they may be different age ratings in different app stores for the same app. They sometimes block the download of apps based on the age rating and their assessment of someone’s age, but not always, and it is different for different app stores.

Why should they be included in this Bill—if it is not obvious from what I have already said? First, two companies are profiting from selling user-to-user products to children. Two app stores account for some 98%-plus of all downloads of user-to-user services, with no requirements to assess the risk of selling those products to children or to mitigate those risks. We do not allow that in the physical world so we should not allow it in the digital world.

Secondly, parents and teenagers tell us that this measure would help. A number of different studies have been done; I will reference just two. One was by FOSI, the Family Online Safety Institute, which conducted an international research project in which parents consistently said that having age assurance at the app store level would make things simpler and more effective for them; ironically, the FOSI research was conducted with Google.

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[Lord Allan of Hallam (LD)]

The noble Baroness makes a very good point; they are making efforts. There is a role for app stores to play but I hope she would accept that it is qualitatively different from that played by a search engine or a user-to-user service. If we were to decide, in both instances, that we want app stores to have a greater role in online safety and a framework that allows us to look at blogs and other forms of content, we should go ahead and do that. All I am arguing is that we have a Bill that is carefully constructed around two particular concepts, a user-to-user service and a search engine, and I am not sure it will stretch that far.

[Baroness Kidron (CB)]

I want to reassure the noble Lord: I have his blog in front of me and he was quite right—there were not a lot of children on that site. It is a very good blog, which I read frequently.

I want to make two points. First, age-rating and age-gating are two different things, and I think the noble Lord has conflated them. There is a lot of age- rating going on, and it is false information. We need good information, and we have not managed to get it by asking nicely. Secondly, I slightly dispute his idea that we have a very structured Bill regarding user-to-user and so on. We have a very structured Bill from a harms perspective that describes the harms that must be prevented—and then we got to commercial porn, and we can also get to these other things.

I agree with the noble Lord’s point about freedom of speech, but we are talking about a fixed set of harms that will, I hope, be in the Bill by the end. We can then say that if children are likely to be accessed by this test, and known harm is there, that is what we are looking at. We are certainly not looking at the noble Lord’s blog.

[Lord Allan of Hallam (LD)]

I appreciate the intervention by the noble Baroness; I hope through this grit we may conjure up a pearl of some sort. The original concept of the Bill, as championed by the noble Baroness, would have been a generalised set of duties of care which could have stretched much more broadly. It has evolved in a particular direction and become ever more specific and tailored to those three services: user-to-user, search, and pornography services. Having arrived at that point, it is difficult to then open it back up and stretch it to reach other forms of service.

My intention in intervening in this debate is to raise some of those concerns because I think they are legitimate. I may be at the more sceptical end of the political world, but I am at the more regulation-friendly end of the tech community. This is said in a spirit of trying to create a Bill that will actually work. I have done the work, and I know how hard Ofcom’s job will be. That sums up what I am trying to say: my concern is that we should not give Ofcom an impossible job. We have defined something quite tight—many people still object to it, think it is too loose and do not agree with it—but I think we have something reasonably workable. I am concerned that, however tempting it is, by re-opening Pandora’s box we may end up creating something less workable.

That does not mean we should forget about app stores and non-user-to-user content, but we need to think of a way of dealing with those which does not necessarily just roll over the mechanism we have created in the Online Safety Bill to other forms of application.

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

My Lords, I share noble Lords’ determination to deliver the strongest protections for children and to develop a robust and future-proofed regulatory regime. However, it will not be possible to solve every problem on the internet through this Bill, nor through any piece of legislation, flagship or otherwise. The Bill has been designed to confer duties on the services that pose the greatest risk of harm—user-to-user services and search services—and where there are proportionate measures that companies can take to protect their users.

As the noble Baroness, Lady Kidron, and others anticipated, I must say that these services act as a gateway for users to discover and access other online content through search results and links shared on social media. Conferring duties on these services will therefore significantly reduce the risk of users going on to access illegal or harmful content on non-regulated services, while keeping the scope of the Bill manageable and enforceable.

As noble Lords anticipated, there is also a practical consideration for Ofcom in all this. I know that many noble Lords are extremely keen to see this Bill implemented as swiftly as possible; so am I. However, as the noble Lord, Lord Allan, rightly pointed out, making major changes to the Bill’s scope at this stage would have significant implications for Ofcom’s implementation timelines. I say this at the outset because I want to make sure that noble Lords are aware of those implications as we look at these issues.

I turn first to Amendments 2, 3, 5, 92 and 193, tabled by the noble Baroness, Lady Kidron. These aim to expand the number of services covered by the Bill to incorporate a broader range of services accessed by children and a broader range of harms. I will cover the broader range of harms more fully in a separate debate when we come to Amendment 93, but I am very grateful to the noble Baroness for her constructive and detailed discussions on these issues over the past few weeks and months.

These amendments would bring new services into scope of the duties beyond user-to-user and search services. This could include services which enable or promote commercial harms, including consumer businesses such as online retailers. As I have just mentioned in relation to the previous amendments, bringing many more services into scope would delay the implementation of Ofcom’s priorities and risk detracting from its work overseeing existing regulated services where the greatest risk of harm exists—we are talking here about the services run by about 2.5 million businesses in the UK alone. I hope noble Lords will appreciate from the recent communications from Ofcom how challenging the implementation timelines already are, without adding further complication.

Amendment 92 seeks to change the child-user condition in the children’s access assessment to the test in the age-appropriate design code. The test in the Bill is already aligned with the test in that code, which determines whether a service is likely to be accessed by children, in order to ensure consistency for providers. The current child-user condition determines that a service is likely to be accessed by children where it has a significant number or proportion of child users, or where it is of a kind likely to attract a significant number or proportion of child users. This will already bring into scope services of the kind set out in this amendment, such as those which are designed or intended for use by children, or where children form a—

[Baroness Kidron (CB)]

I am sorry to interrupt. Will the Minister take the opportunity to say what “significant” means, because that is not aligned with the ICO code, which has different criteria?

[Lord Parkinson of Whitley Bay (Con)]

If I can finish my point, this will bring into scope services of the kind set out in the amendments, such as those designed or intended for use by children, or where children form a substantial and identifiable user group. The current condition also considers the nature and content of the service and whether it has a particular appeal for children. Ofcom will be required to consult the Information Commissioner’s Office on its guidance to providers on fulfilling this test, which will further support alignment between the Bill and the age-appropriate design code.

On the meaning of “significant”, a significant number of children means a significant number in itself or a significant proportion of the total number of UK-based users on the service. In the Bill, “significant” has its ordinary meaning, and there are many precedents for it in legislation. Ofcom will be required to produce and publish guidance for providers on how to make the children’s access assessment. Crucially, the test in the Bill provides more legal certainty and clarity for providers than the test outlined in the code. “Substantive” and “identifiable”, as suggested in this amendment, do not have such a clear legal meaning, so this amendment would give rise to the risk that the condition is more open to challenge from providers and more difficult to enforce. On the other hand, as I said, “significant” has an established precedent in legislation, making it easier for Ofcom, providers and the courts to interpret.

The noble Lord, Lord Knight, talked about the importance of future-proofing the Bill and emerging technologies. As he knows, the Bill has been designed to be technology neutral and future-proofed, to ensure that it keeps pace with emerging technologies. It will apply to companies which enable users to share content online or to interact with each other, as well as to search services. Search services using AI-powered features will be in scope of the search duties. The Bill is also clear that content generated by AI bots is in scope where it interacts with user-generated content, such as bots on Twitter. The metaverse is also in scope of the Bill. Any service which enables users to interact as the metaverse does will have to conduct a child access test and comply with the child safety duties if it is likely to be accessed by children.

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I hope that gives the noble Lord the reassurance that the points he is exploring through his amendments are covered. I invite him not to press them and, with a promise to continue discussions on the other amendments in this group, I invite their proposers to do the same.

[Baroness Kidron (CB)]

I thank the Minister for an excellent debate; I will make two points. First, I think the Minister was perhaps answering on my original amendment, which I have narrowed considerably to services

“likely to be accessed by children”

and with proven harm on the basis of the harms described by the Bill. It is an “and”, not an “or”, allowing Ofcom to go after places that have proven to be harmful.

Secondly, I am not sure the Government can have it both ways—that it is the same as the age-appropriate design code but different in these ways—because it is exactly in the ways that it is different that I am suggesting the Government might improve. We will come back to both those things.

Finally, what are we asking here? We are asking for a risk assessment. The Government say there is no risk assessment, no harm, no mitigation, nothing to do. This is a major principle of the conversations we will have going forward over a number of days. I also believe in proportionality. It is basic product safety; you have a look, you have standards, and if there is nothing to do, let us not make people do silly things. I think we will return to these issues, because they are clearly deeply felt, and they are very practical, and my own feeling is that we cannot risk thousands of children not benefiting from all the work that Ofcom is going to do. With that, I beg leave to withdraw.

Amendment 2 withdrawn.

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[Lord Allan of Hallam (LD)]

My Lords, I rise to speak in support of Amendment 9, tabled by the noble Lord, Lord Moylan, and in particular the proposed new paragraph 10A to Schedule 1. I hope I will find myself more in tune with the mood of the Committee on this amendment than on previous ones. I would be interested to know whether any noble Lords believe that Ofcom should be spending its limited resources supervising a site like Wikipedia under the new regime, as it seems to me patently obvious that that is not what we intend; it is not the purpose of the legislation.

The noble Lord, Lord Moylan, is right to remind us that one of the joys of the internet is that you buy an internet connection, plug it in and there is a vast array of free-to-use services which are a community benefit, produced by the community for the community, with no harm within them. What we do not want to do is interfere with or somehow disrupt that ecosystem. The noble Baroness, Lady Fox, is right to remind us that there is a genuine risk of people withdrawing from the UK market. We should not sidestep that. People who try to be law-abiding will look at these requirements and ask themselves, “Can I meet them?” If the Wikimedia Foundation that runs Wikipedia does not think it can offer its service in a lawful way, it will have to withdraw from the UK market. That would be to the detriment of children in the United Kingdom, and certainly not to their benefit.

There are principle-based and practical reasons why we do not want Ofcom to be operating in this space. The principle-based one is that it makes me uncomfortable that a Government would effectively tell their regulator how to manage neutral information sites such as Wikipedia. There are Governments around the world who seek to do that; we do not want to be one of those.

The amendment attempts to define this public interest, neutral, informational service. It happens to be user-to-user but it is not like Facebook, Instagram or anything similar. I would feel much more comfortable making it clear in law that we are not asking Ofcom to interfere with those kinds of services. The practical reason is the limited time Ofcom will have available. We do not want it to be spending time on things that are not important.

Definitions are another example of how, with the internet, it can often be extremely hard to draw bright lines. Functionalities bleed into each other. That is not necessarily a problem, until you try to write something into law; then, you find that your definition unintentionally captures a service that you did not intend to capture, or unintentionally misses out a service that you did intend to be in scope. I am sure the Minister will reject the amendment because that is what Ministers do; but I hope that, if he is not willing to accept it, he will at least look at whether there is scope within the Bill to make it clear that Wikipedia is intended to be outside it.

Paragraph 4 of Schedule 1 refers to “limited functionality services”. That is a rich vein to mine. It is clear that the intention is to exclude mainstream media, for example. It refers to “provider content”. In this context, Encyclopaedia Britannica is not in scope but Wikipedia is, the difference being that Wikipedia is constructed by users, while Encyclopaedia Britannica is regarded as being constructed by a provider. The Daily Mail is outside scope; indeed, all mainstream media are outside scope. Anyone who declares themselves to be media—we will debate this later on—is likely to be outside scope.

Such provider exemption should be offered to other, similar services, even if they happen to be constructed from the good will of users as opposed to a single professional author. I hope the Minister will be able to indicate that the political intent is not that we should ask Ofcom to spend time and energy regulating Wikipedia-like services. If so, can he point to where in the legislation we might get that helpful interpretation, in order to ensure that Ofcom is focused on what we want it to be focused on and not on much lower priority issues?

[Baroness Kidron (CB)]

I will speak to a couple of the amendments in this group. First, small is not safe, and you cannot necessarily see these platforms in isolation. For example, there is an incel group that has only 4,000 active users, but it posts a great deal on YouTube and has 24.2 million users in that context. So we have to be clear that small and safe are not the same thing.

However, I am sympathetic to the risk-based approach. I should probably have declared an interest as someone who has given money to Wikipedia on several occasions to keep it going. I ask the Minister for some clarity on the systems and processes of the Bill, and whether the risk profile of Wikipedia—which does not entice you in and then follow you for the next six months once you have looked at something—is far lower than something very small that gets hold of you and keeps on going. I say that particularly in relation to children, but I feel it for myself also.

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[Lord Allan of Hallam (LD)]

My Lords, I will speak to the amendments in the name of the noble Lord, Lord Moylan, on moderation, which I think are more important than he has given himself credit for—they go more broadly than just Wikipedia.

There is a lot of emphasis on platform moderation, but the reality is that most moderation of online content is done by users, either individually or in groups, acting as groups in the space where they operate. The typical example, which many Members of this House have experienced, is when you post something and somebody asks, “Did you mean to post that?”, and you say, “Oh gosh, no”, and then delete it. A Member in the other place has recently experienced a rather high-profile example of that through the medium of the newspaper. On a much smaller scale, it is absolutely typical that people take down content every day, either because they regret it or, quite often, because their friends, families or communities tell them that it was unwise. That is the most effective form of moderation, because it is the way that people learn to change their behaviour online, as opposed to the experience of a platform removing content, which is often experienced as the big bad hand of the platform. The person does not learn to change their behaviour, so, in some cases, it can reinforce bad behaviour.

Community moderation, not just on Wikipedia but across the internet, is an enormous public good, and the last thing that we want to do in this legislation is to discourage people from doing it. In online spaces, that is often a volunteer activity: people give up their time to try to keep a space safe and within the guidelines they have set for that space. The noble Lord, Lord Moylan, has touched on a really important area: in the Bill, we must be absolutely clear to those volunteers that we will not create all kinds of new legal operations and liabilities on them. These are responsible people, so, if they are advised that they will incur all kinds of legal risk when trying to comply with the Online Safety Bill, they will stop doing the moderation—and then we will all suffer.

On age-gating, we will move to a series of amendments where we will discuss age assurance, but I will say at the outset, as a teaser to those longer debates, that I have sympathy with the points made by the noble Lord, Lord Moylan. He mentioned pubs—we often talk about real-world analogies. In most of the public spaces we enter in the real world, nobody does any ID checking or age checking; we take it on trust, unless and until you carry out an action, such as buying alcohol, which requires an age check.

It is legitimate to raise this question, because where we fall in this debate will depend on how we see public spaces. I see a general-purpose social network as equivalent to walking into a pub or a town square, so I do not expect to have my age and ID checked at the point at which I enter that public space. I might accept that my ID is checked at a certain point where I carry out various actions. Others will disagree and will say that the space should be checked as soon as you go into it—that is the boundary of the debate we will have across a few groups. As a liberal, I am certainly on the side that says that it is incumbent on the person wanting to impose the extra checks to justify them. We should not just assume that extra checks are cost-free and beneficial; they have a cost for us all, and it should be imposed only where there is a reasonable justification.

[Baroness Kidron (CB)]

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

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

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

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

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

[Baroness Finlay of Llandaff (CB)]

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

--- Later in debate ---

[Lord Moylan (Con)]

My Lords I am grateful to all noble Lords who have contributed to this slightly disjointed debate. I fully accept that there will be further opportunities to discuss age verification and related matters, so I shall say no more about that. I am grateful, in particular, to the noble Lord, Lord Allan of Hallam, for supplying the deficiency in my opening remarks about the importance of Amendments 10 and 11, and for explaining just how important that is too. I also thank the noble Lord, Lord Stevenson. It was good of him to say, in the open approach he took on the question of age, that there are issues still to be addressed. I do not think anybody feels that we have yet got this right and I think we are going to have to be very open in that discussion, when we get to it. That is also true about what the noble Lord, Lord Allan of Hallam, said: we have not yet got clarity as to where the age boundary is—I like his expression—for the public space. Where is the point at which, if checks are needed, those checks are to be applied? These are all matters to discuss and I hope noble Lords will forgive me if I do not address each individual contribution separately.

I would like to say something, I hope not unfairly or out of scope, about what was said by the noble Baronesses, Lady Finlay of Llandaff and Lady Kidron, when they used, for the first time this afternoon, the phrase “zero tolerance”, and, at the same time, talked about a risk-based approach. I have, from my own local government experience, a lot of experience of risk-based approaches taken in relation to things—very different, of course, from the internet—such as food safety, where local authorities grade restaurants and food shops and take enforcement action and supervisory action according to their assessment of the risk that those premises present. That is partly to do with their assessment of the management and partly to do with their experience of things that have gone wrong in the past. If you have been found with mouse droppings and you have had to clean up the shop, then you will be examined a great deal more frequently until the enforcement officers are happy; whereas if you are always very well run, you will get an inspection visit maybe only once a year. That is what a risk-based assessment consists of. The important thing to say is that it does not produce zero tolerance or zero outcomes.

[Baroness Kidron (CB)]

I just want to make the point that I was talking about zero tolerance at the end of a ladder of tolerance, just to be clear. Letting a seven-year-old child into an 18-plus dating app or pornographic website is where the zero tolerance is—everything else is a ladder up to that.

[Lord Moylan (Con)]

I beg the noble Baroness’s pardon; I took that for granted. There are certain things—access to pornography, material encouraging self-harm and things of that sort—where one has to have zero tolerance, but not everything. I am sorry I took that for granted, so I fully accept that I should have made that more explicit in my remarks. Not everything is to be zero-toleranced, so to speak, but certain things are. However, that does not mean that they will not happen. One has to accept that there will be leakage around all this, just as some of the best-run restaurants that have been managed superbly for years will turn out, on occasion, to be the source of food poisoning. One has to accept that this is never going to be as tight as some of the advocates wanted, but with that, I hope I will be given leave to withdraw—

--- Later in debate ---

[Lord Allan of Hallam (LD)]

My Lords, it is risky to stand between people and their dinner, but I rise very briefly to welcome these amendments. We should celebrate the good stuff that happens in Committee as well as the challenging stuff. The risk assessments are, I think, the single most positive part of this legislation. Online platforms already do a lot of work trying to understand what risks are taking place on their platforms, which never sees the light of day except when it is leaked by a whistleblower and we then have a very imperfect debate around it.

The fact that platforms will have to do a formal risk assessment and share it with a third-party regulator is huge progress; it will create a very positive dynamic. The fact that the public will be able to see those risk assessments and make their own judgments about which services to use—according to how well they have done them—is, again, a massive public benefit. We should welcome the fact that risk assessments are there and the improvements that this group of amendments makes to them. I hope that was short enough.

[Baroness Kidron (CB)]

I also welcome these amendments, but I have two very brief questions for the Minister. First, in Amendment 27A, it seems that the child risk assessment is limited only to category 1 services and will be published only in the terms of service. As he probably knows, 98% of people do not read terms of service, so I wondered where else we might find this, or whether there is a better way of dealing with it.

My second question is to do with Amendments 64A and 88A. It seems to me—forgive me if I am wrong—that the Bill previously stipulated that all regulated search and user services had to make and keep a written record of any measure taken in compliance with a relevant duty, but now it seems to have rowed back to only category 1 and 2A services. I may be wrong on that, but I would like to check it for the record.

[Lord Clement-Jones (LD)]

My Lords, the noble Baroness, Lady Kidron, put her finger exactly on the two questions that I wanted to ask: namely, why only category 1 and category 2A, and is there some rowing back involved here? Of course, none of this prejudices the fact that, when we come later in Committee to talk about widening the ambit of risk assessments to material other than that which is specified in the Bill, this kind of transparency would be extremely useful. But the rationale for why it is only category 1 and category 2A in particular would be very useful to hear.

Online Safety Bill

Baroness Kidron Excerpts

Committee stage
Wednesday 19th April 2023 Lords Chamber

My concern is that, without also asserting a clear vision of what we want to happen as a result of passing this Bill, Parliament, and the people who use the social media and search resources of the internet, will have no framework by which to judge the success or otherwise of this important Bill. This amendment, as I said, is primarily declaratory, but I hope I have proved that it is also purposive. I think that the Government should look at it very carefully and hope that they will accept it. I beg to move.

[Baroness Kidron (CB)]

My Lords, I draw attention to my interests in the register, which I declared in full at Second Reading. It is an absolute pleasure to follow the noble Lord, Lord Stevenson, and, indeed, to have my name on this amendment, along with those of fellow members of the pre-legislative committee. It has been so long that it almost qualifies as a reunion tour.

This is a fortuitous amendment on which to start our deliberations, as it sets out the very purpose of the Bill—a North Star. I want to make three observations, each of which underlines its importance. First, as the pre-legislative committee took evidence, it was frequently remarked by both critics and supporters that it was a complicated Bill. We have had many technical briefings from DSIT and Ofcom, and they too refer to the Bill as “complicated”. As we took advice from colleagues in the other place, expert NGOs, the tech sector, academics and, in my own case, the 5Rights young advisory group, the word “complicated” repeatedly reared its head. This is a complex and ground-breaking area of policy, but there were other, simpler structures and approaches that have been discarded.

Over the five years with ever-changing leadership and political pressures, the Bill has ballooned with caveats and a series of very specific, and in some cases peculiar, clauses—so much so that today we start with a Bill that even those of us who are paying very close attention are often told that we do not understand. That should make the House very nervous.

It is a complicated Bill with intersecting and dependent clauses—grey areas from which loopholes emerge—and it is probably a big win for the deepest pockets. The more complicated the Bill is, the more it becomes a bonanza for the legal profession. As the noble Lord, Lord Stevenson, suggests, the Minister is likely to argue that the contents of the amendment are already in the Bill, but the fact that the word “complicated” is firmly stuck to its reputation and structure is the very reason to set out its purpose at the outset, simply and unequivocally.

Secondly, the OSB is a framework Bill, with vast amounts of secondary legislation and a great deal of work to be implemented by the regulator. At a later date we will discuss whether the balance between the Executive, the regulator and Parliament is exactly as it should be, but as the Bill stands it envisages a very limited future role for Parliament. If I might borrow an analogy from my previous profession, Parliament’s role is little more than that of a background extra.

I have some experience of this. In my determination to follow all stages of the age-appropriate design code, I found myself earlier this week in the Public Gallery of the other place to hear DSIT Minister Paul Scully, at Second Reading of the Data Protection and Digital Information (No. 2) Bill, pledge to uphold the AADC and its provisions. I mention this in part to embed it on the record—that is true—but primarily to make this point: over six years, there have been two Information Commissioners and double figures of Secretaries of State and Ministers. There have been many moments at which the interpretation, status and purpose of the code has been put at risk, at least once to a degree that might have undermined it altogether. At these moments, each time the issue was resolved by establishing the intention of Parliament beyond doubt. Amendment 1 moves Parliament from background extra to star of the show. It puts the intention of Parliament front and centre for the days, weeks, months and years ahead in which the work will still be ongoing—and all of us will have moved on.

The Bill has been through a long and fractured process in which the pre-legislative committee had a unique role. Many attacks on the Bill have been made by people who have not read it. Child safety was incorrectly cast as the enemy of adult freedom. While some wanted to apply the existing and known concepts and terms of public interest, protecting the vulnerable, product safety and the established rights and freedoms of UK citizens, intense lobbying has seen them replaced by untested concepts and untried language over which the tech sector has once again emerged as judge and jury. This has further divided opinion.

In spite of all the controversy, when published, the recommendations of the committee report received almost universal support from all sides of the debate. So I ask the Minister not only to accept the committee’s view that the Bill needs a statement of purpose, the shadow of which will provide shelter for the Bill long into the future, but to undertake to look again at the committee report in full. In its pages lies a landing strip of agreement for many of the things that still divide us.

This is a sector that is 100% engineered and almost all privately owned, and within it lie solutions to some of the greatest problems of our age. It does not have to be as miserable, divisive and exploitative as this era of exceptionalism has allowed it to be. As the Minister is well aware, I have quite a lot to say about proposed new subsection (1)(b),

“to provide a higher level of protection for children than for adults”,

but today I ask the Minister to tell us which of these paragraphs (a) to (g) are not the purpose of the Bill and, if they are not, what is.

[Lord Allan of Hallam (LD)]

My Lords, I am pleased that we are starting our Committee debate on this amendment. It is a pleasure to follow the noble Lord, Lord Stevenson, and the noble Baroness, Lady Kidron.

In this Bill, as has already been said, we are building a new and complex system and we can learn some lessons from designing information systems more generally. There are three classic mistakes that you can make. First, you can build systems to fit particular tools. Secondly, you can overcommit beyond what you can actually achieve. Thirdly, there is feature creep, through which you keep adding things on as you develop a new system. A key defence against these mistakes is to invest up front in producing a really good statement of requirements, which I see in Amendment 1.

On the first risk, as we go through the debate, there is a genuine risk that we get bogged down in the details of specific measures that the regulator might or might not include in its rules and guidance, and that we lose sight of our goals. Developing a computer system around a particular tool—for example, building everything with Excel macros or with Salesforce—invariably ends in disaster. If we can agree on the goals in Amendment 1 and on what we are trying to achieve, that will provide a sound framework for our later debates as we try to consider the right regulatory technologies that will deliver those goals.

The second cardinal error is overcommitting and underdelivering. Again, it is very tempting when building a new system to promise the customer that it will be all-singing, all-dancing and can be delivered in the blink of an eye. Of course, the reality is that in many cases, things prove to be more complex than anticipated, and features sometimes have to be removed while timescales for delivering what is left are extended. A wise developer will instead aim to undercommit and overdeliver, promising to produce a core set of realistic functions and hoping that, if things go well, they will be able to add in some extra features that will delight the customer as an unexpected bonus.

This lesson is also highly relevant to the Bill, as there is a risk of giving the impression to the public that more can be done quicker than may in fact be possible. Again, Amendment 1 helps us to stay grounded in a realistic set of goals once we put those core systems in place. The fundamental and revolutionary change here is that we will be insisting that platforms carry out risk assessments and share them with a regulator, who will then look to them to implement actions to mitigate those risks. That is fundamental. We must not lose sight of that core function and get distracted by some of the bells and whistles that are interesting, but which may take the regulator’s attention away from its core work.

We also need to consider what we mean by “safe” in the context of the Bill and the internet. An analogy that I have used in this context, which may be helpful, is to consider how we regulate travel by car and aeroplane. Our goal for air travel is zero accidents, and we regulate everything down to the nth degree: from the steps we need to take as passengers, such as passing through security and presenting identity documents, to detailed and exacting safety rules for the planes and pilots. With car travel, we have a much higher degree of freedom, being able to jump in our private vehicles and go where we want, when we want, pretty much without restrictions. Our goal for car travel is to make it incrementally safer over time; we can look back and see how regulation has evolved to make vehicles, roads and drivers safer year on year, and it continues to do so. Crucially, we do not expect car travel to be 100% safe, and we accept that there is a cost to this freedom to travel that, sadly, affects thousands of people each year, including my own family and, I am sure, many others in the House. There are lots of things we could do to make car travel even safer that we do not put into regulation, because we accept that the cost of restricting freedom to travel is too high.

Without over-labouring this analogy, I ask that we keep it in mind as we move through Committee—whether we are asking Ofcom to implement a car-like regime whereby it is expected to make continual improvements year on year as the state of online safety evolves, or we are advocating an aeroplane-like regime whereby any instance of harm will be seen as a failure by the regulator. The language in Amendment 1 points more towards a regime of incremental improvements, which I believe is the right one. It is in the public interest: people want to be safer online, but they also want the freedom to use a wide range of internet services without excessive government restriction, and they accept some risk in doing so.

I hope that the Minister will respond positively to the intent of Amendment 1 and that we can explore in this debate whether there is broad consensus on what we hope the Bill will achieve and how we expect Ofcom to go about its work. If there is not, then we should flush that out now to avoid later creating confused or contradictory rules based on different understandings of the Bill’s purpose. I will keep arguing throughout our proceedings for us to remain focused on giving the right goals to Ofcom and allowing it considerable discretion over the specific tools it needs, and for us to be realistic in our aims so that we do not overcommit and underdeliver.

Finally, the question of feature creep is very much up to us. There will be a temptation to add things into the Bill as it goes through. Some of those things are essential; I know that the noble Baroness, Lady Kidron, has some measures that I would also support. This is the right time to do that, but there will be other things that would be “nice to have”, and the risk of putting them in might detract from those core mechanisms. I hope we are able to maintain our discipline as we go through these proceedings to ensure we deliver the right objectives, which are incredibly well set out in Amendment 1, which I support.

--- Later in debate ---

[Lord Knight of Weymouth (Lab)]

I strongly support my noble friend in his amendment. I clarify that, in doing so, I am occupying a guest slot on the Front Bench: I do so as a member of his team but also as a member of the former Joint Committee. As my noble friend set out, this reflects where we got to in our thinking as a Joint Committee all that time ago. My noble friend said “at last”, and I echo that and what others said. I am grateful for the many briefings and conversations that we have had in the run-up to Committee, but it is good to finally be able to get on with it and start to clear some of these things out of my head, if nothing else.

In the end, as everyone has said, this is a highly complex Bill. Like the noble Baroness, Lady Stowell, in preparation for this I had another go at trying to read the blooming thing, and it is pretty much unreadable —it is very challenging. That is right at the heart of why I think this amendment is so important. Like the noble Baroness, Lady Kidron, I worry that this will be a bonanza for the legal profession, because it is almost impenetrable when you work your way through the wiring of the Bill. I am sure that, in trying to amend it, some of us will have made errors. We have been helped by the Public Bill Office, but we will have missed things and got things the wrong way around.

It is important to have something purposive, as the Joint Committee wanted, and to have clarity of intent for Ofcom, including that this is so much more about systems than about content. Unlike the noble Baroness, Lady Stowell—clearly, we all respect her work chairing the communications committee and the insights she brings to the House—I think that a very simple statement, restricting it just to proposed new paragraph (g), is not enough. It would almost be the same as the description at the beginning of the Bill, before Clause 1. We need to go beyond that to get the most from having a clear statement of how we want Ofcom to do its job and the Secretary of State to support Ofcom.

I like what the noble Lord, Lord Allan, said about the risk of overcommitment and underdevelopment. When the right reverend Prelate the Bishop of Oxford talked about being the safest place in the world to go online, which is the claim that has been made about the Bill from the beginning, I was reminded again of the difficulty of overcommitting and underdelivering. The Bill is not perfect, and I do not believe that it will be when this Committee and this House have finished their work; we will need to keep coming back and legislating and regulating in this area, as we pursue the goal of being the safest place in the world to go online —but it will not be any time soon.

I say to the noble Baroness, Lady Fox, who I respect, that I understand what she is saying about some of her concerns about a risk-free child safety regime and the unintended consequences that may come in this legislation. But at its heart, what motivate us and make us believe that getting the Bill right is one of the most important things we will do in all of our times in this Parliament are the unintended consequences of the algorithms that these tech companies have created in pushing content at children that they do not want to hear. I see the noble Baroness, Lady Kidron, wanting to comment.

[Baroness Kidron (CB)]

I just want to say to the noble Baroness, Lady Fox, that we are not looking to mollycoddle children or put them in cotton wool; we are asking for a system where they are not systematically exploited by major companies.

[Lord Knight of Weymouth (Lab)]

I very much agree. The core of what I want to say in supporting this amendment is that in Committee we will do what we are here to do. There are a lot of amendments to what is a very long and complicated Bill: we will test the Minister and his team on what the Government are trying to achieve and whether they have things exactly right in order to give Ofcom the best possible chance to make it work. But when push comes to shove at the end of the process, at its heart we need to build trust in Ofcom and give it the flexibility to be able to respond to the changing online world and the changing threats to children and adults in that online world. To do that, we need to ensure that we have the right amount of transparency.

I was particularly pleased to see proposed new paragraph (g) in the amendment, on transparency, as referenced by the noble Baroness, Lady Stowell. It is important that we have independence for Ofcom; we will come to that later in Committee. It is important that Parliament has a better role in terms of accountability so that we can hold Ofcom to account, having given it trust and flexibility. I see this amendment as fundamental to that, because it sets the framework for the flexibility that we then might want to be able to give Ofcom over time. I argue that this is about transparency of purpose, and it is a fundamental addition to the Bill to make it the success that we want.

Online Safety Bill

Baroness Kidron Excerpts

2nd reading
Wednesday 1st February 2023 Lords Chamber

[Baroness Kidron (CB)]

My Lords, I declare my interests as chair of 5Rights Foundation and the Digital Futures Commission, my positions at Oxford and LSE and at the UN Broadband Commission and the Institute for Ethics in AI, as deputy chair of the APPG on digital regulation and as a member of the Joint Committee on this Bill.

As has already been mentioned, on Monday I hosted the saddest of events, at which Ian Russell and Merry Varney, the Russell family’s solicitor, showed parliamentarians images and posts that had been algorithmically recommended to Molly in the lead-up to her death. These were images so horrible that they cannot be shown in the media, so numerous that we could see only a fraction, and so full of despair and violence that many of the adult professionals involved in the inquest had to seek counselling. Yet in court, much of this material was defended by two tech companies as being suitable for a 14 year-old. Something has gone terribly wrong. The question is: is this Bill sufficient to fix it?

At the heart of our debates should not be content but the power of algorithms that shape our experiences online. Those algorithms could be designed for any number of purposes, including offering a less toxic digital environment, but they are instead fixed on ranking, nudging, promoting and amplifying anything to keep our attention, whatever the societal cost. It does not need to be like that. Nothing about the digital world is a given; it is 100% engineered and almost all privately owned; it can be designed for any outcome. Now is the time to end the era of tech exceptionality and to mandate a level of product safety so that the sector, just like any other sector, does not put its users at foreseeable risk of harm. As Meta’s corporate advertising adorning bus stops across the capital says:

“The metaverse may be virtual, but the impact will be real.”


I very much welcome the Bill, but there are still matters to discuss. The Government have chosen to take out many of the protections for adults, which raises questions about the value and practicality of what remains. In Committee, it will be important to understand how enforcement of a raft of new offences will be resourced and to question the oversight and efficacy of the remaining adult provisions. Relying primarily on companies to be author, judge and jury of their own terms of service may well be a race to the bottom.

I regret that Parliament has been denied the proper opportunity to determine what kind of online world we want for adults, which, I believe, we will regret as technology enters its next phase of intelligence and automation. However, my particular concern is the fate of children, whose well-being is collateral damage to a profitable business model. Changes to the Bill will mean that child safety duties are no longer an add-on to a generally safer world; they are now the first and only line of defence. I have given the Secretary of State sight of my amendments, and I inform the House that they are not probing amendments; they are necessary to fill the gaps and loopholes in the Bill as it now stands. In short, we need to ensure that child safety duties apply to all services likely to be accessed by children. We must ensure the quality control of all age-assurance systems. Age checking must not focus on a particular harm, but on the child; it needs to be secure, privacy-preserving and proportionate, and it must work. The children’s risk assessment and the list of harms must cover each of the four Cs: content harm, conduct harm, contact harm and commercial harm, such as the recommendation loops of violence and self-hatred that push thousands of children into states of misery. Those harms must be in the Bill.

Coroners and bereaved parents must have access to data relevant to the death of a child to end the current inhumane arrangement whereby bereaved families facing the devasting loss of their child are forced to battle, unsuccessfully, with tech behemoths for years. I hope that the Minister will reiterate commitments made in the other place to close that loophole.

Children’s rights must be in the Bill. An unintended consequence of removing protections for adults is that children will now cost companies vastly more developer time, more content moderation and more legal costs than adults. The digital world is the organising technology of our society, and children need to be online for their education and information to participate in civic society—they must not be kicked out.

I thank all those who have indicated their support, and the Secretary of State, the Minister and officials for the considerable time they have given me. However, I ask the Minister to listen very carefully to the mood of the House this evening; the matters I have raised are desperately urgent and long-promised, and must now be delivered unequivocally.

While millions of children suffer from the negative effects of the online world, some pay with their lives. I am a proud supporter of a group of bereaved parents for online safety, and I put on the record that we remember Molly, Frankie, Olly, Breck, Sophie and all the others who have lost their lives. I hope that the whole House will join me in not resting until we have a Bill fit for their memory.

Online Safety Bill

Baroness Kidron Excerpts

Monday 7th November 2022 Lords Chamber

Asked by

[Baroness Kidron]

To ask His Majesty’s Government, in light of the Prevention of Future Deaths Report published at the conclusion of the Molly Russell inquest, what plans they have to bring forward the Online Safety Bill in sufficient time to ensure its passage during this parliamentary Session.

[Baroness Kidron (CB)]

My Lords, in begging leave to ask the Question of which I have given private notice, I declare my interests, particularly as founder and chair of 5Rights Foundation.

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

My Lords, the arrangement of parliamentary business is, as the noble Baroness will appreciate, a matter for business managers through the usual channels. However, the Bill remains a priority. The Secretary of State committed on 20 October to bringing it back to Parliament shortly. We will continue to work with noble Lords, Members in another place and others on the passage of this important legislation.

[Baroness Kidron (CB)]

I thank the Minister for that reply and am happy to see him back in his place. However, after four years of waiting, I am afraid his Answer was not quite good enough.

Coroner Walker’s landmark judgment that Molly Russell died after suffering negative effects of online content, and his Prevention of Future Deaths Report, deserve to be met with action. That action should be finally bringing forward the Online Safety Bill. Molly Russell died five years ago, the same five years in which we have been working on the Online Safety Bill, in the absence of which children suffer an aggressive bombardment of material that valorises self-harm, body dysmorphia, violent porn and, of course, suicide— real harms to real children. Does the Minister agree that it is time to stop this suffering and commit to bringing the Bill to this House before the end of this month, which is the date by which we have been told we need it to ensure correct scrutiny and its passage in this Session?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this important legislation has indeed been a long time coming. I was a special adviser in the Home Office when it was first proposed and was in Downing Street when it was first put in the Conservative manifesto in 2017. Like the noble Baroness, I am very keen to see it in your Lordships’ House so that it can be properly scrutinised, so that we can deliver the protections that we all want to see for children and vulnerable people. The noble Baroness is tireless in her defence of these people. She served excellently on the Joint Committee, which has already looked at the Bill. Like her, I am very keen to get it before your Lordships’ House so that we can continue.

Media Literacy

Baroness Kidron Excerpts

Monday 20th June 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

Through the Online Safety Bill, we are giving Ofcom strengthened media literacy functions on transparency reporting, information gathering and the other areas I set out. However, through its strategy announced in December last year, Ofcom has set out its own expanded work programme to discharge its existing duty, which includes pilots, campaigns to promote media literacy, establishing best practice and creating guidance on evaluation, so we are pleased to see that it is using and extending the powers that it has.

[Baroness Kidron (CB)]

My Lords, many digital literacy programmes are provided free of charge to schools by private companies with an emphasis that teaches children about user behaviour rather than the risks created by those very same companies. Given the lack of provision in the Bill, perhaps the Minister could say what plans Her Majesty’s Government have to ensure that schools are not simply marketing tech products but offering a holistic digital literacy to children that is independent of those tech companies?

[Lord Parkinson of Whitley Bay (Con)]

Digital literacy is a key priority in the computing national curriculum in England, which equips people with knowledge, understanding and skills to use the internet creatively and purposefully. Through citizenship education and other subjects, as I mentioned, we are making sure that schoolchildren are equipped with the skills that they need, and of course the companies themselves have a role to play in delivering and funding media literacy education. We welcome the steps that platforms have already taken, but we believe that they can go further to empower and educate their users.

Digital Technology (Democracy and Digital Technologies Committee Report)

Baroness Kidron Excerpts

Friday 11th March 2022 Lords Chamber

[Baroness Kidron (CB)]

My Lords, I declare my interests as chair of 5Rights, a member of the Joint Committee and a member of the digital democracy inquiry. I too pay tribute to Lord Puttnam, our wonderful chairman. For the record, I give thanks for his many acts of kindness and the guidance he offered me as I started to grapple with the world of legislation and politics. He represents the best of this House.

In the life of tech, 20 months is a long time. In that time, we have seen Maria Ressa get a Nobel Peace Prize for her efforts to protect free speech, battling hostile state actors and identifying Facebook’s chilling effect on journalism and the broader information ecosystem. Her words reverberate as we witness the information conflict and resulting violence waging across the globe:

“I don’t think we have wrapped our heads around how much technology has allowed the manipulation of individuals and democracies.”


From Frances Haugen, we heard that Facebook ignored its own research showing Instagram made teens anxious and depressed. To Congress, she said:

“I am here today because I believe Facebook’s products harm children, stoke division, and weaken our democracy.”


Of course, we also had the horror of Covid misinformation, the attacks on black footballers, and a 77% increase in self-generated abuse—all fuelled by algorithms supercharged to spread at any cost and whatever the harm to people or society.

Facebook, feeling the heat, went for rebranding, rather than fixing the problem. It re-emerged as Meta with a toe-curling video of two grown men playing in the office and a $10 billion a year plan to make the metaverse our new home—setting off a goldrush in which even McDonald’s filed for trademarks for virtual restaurants. Within weeks, we saw headlines that read

“the metaverse—already a home to sex predators”,

and

“Metaverse app allows kids into virtual strip clubs.”

My own personal low point was reading about a New York Times journalist who arrived in the metaverse to find that another avatar immediately groped her and then ejaculated in her face. Her pleas to stop were unheard until her abuser, satisfied, walked jauntily away.

Before I continue, I will make two things abundantly clear. First, Meta is not the only tech company at fault. Indeed, it is, by some measure, not the worst. However, it epitomises the culture of a sector that fails to protect its users and spends a fortune on lobbying to make certain that none of the rest of us does. Secondly, the metaverse is not, in and of itself, a problem. My own brief forays include an extraordinary whodunit adventure with a film noir aesthetic, and a fantastic training environment for social workers that allow them to rehearse how to spot signs of abuse or neglect. None the less, Meta has done us an extraordinary favour in showing us that we cannot slice and dice the digital world. The time for picking battles or offering partial protections has passed, because the technology and its associated risk are interconnected and constantly evolving. Laws must be about principles and product safety, with a radical transparency and democratic accountability. In a connected world, the risk to the user is the weakest link.

Twenty months is a long time in the life of a child. I have stood here too many times telling the Minister and his multiple predecessors about the real-time costs to children’s bodies, mental health, life chances and, in tragic cases, lives. It is not too late to fast-track privacy-preserving age-assurance regulation. The daily harms experienced by children, while they wait, must surely be on the consciences of officials and Ministers. So too, the support desperately needed by bereaved parents—in their quest to get tech companies to hand over information which may save other children from a similar fate—cannot wait until 2025.

I believe the online safety Bill will be published on Tuesday, so I will not ask questions that cannot be answered here. But while every part of my being hopes that the Bill will reflect the recommendations of both the Democracy and Digital Technologies Committee and the Joint Committee to simplify, strengthen, future-proof and make enforceable the online safety regime, I fear that we will simply get a series of eye-catching additions to the draft Bill which will fail to make the systemic changes necessary.

Last night, I was speaking to a group of teenagers, one of whom said, “The digital world is our oyster, you should assume we are there until you can prove we are not.” Another simply said, “I don’t think it’s right that the tech companies can prey on us.” They know, we know and the Government know what this Bill must do. It is the job of this House and the other place to make sure that the online safety Bill is fit for the future and, in being so, reinstates the trust that Lord Puttnam so desperately wanted to see.