Online Safety Bill

Baroness Merron Excerpts

Committee stage
Thursday 27th April 2023 Lords Chamber

Again, I hope that the Minister can take this opportunity to respond on the substance of whether there should be different requirements and to explain why we have that categorisation, where category 2B is small user-to-user services, category 1 is big user-to-user services and category 2A is search and combined services. That would probably not be the first assumption of most people in the House, and it has been bugging me since I first read the Bill, so it would be nice to get an answer today.

[Baroness Merron (Lab)]

My Lords, I welcome this debate, which revisits some of the areas discussed in earlier debates about the scope of the Bill, as many noble Lords said. It allows your Lordships’ House to consider what has to be the primary driver for assessment. In my view and as others said, it ought to be about risk, which has to be the absolute driver in all this. As the noble Baroness, Lady Harding, said, businesses do not remain static: they start at a certain size and then change. Of course, we hope that many of the businesses we are talking about will grow, so this is about preparation for growth and the reality of doing businesses.

As we discussed, there certainly are cases where search providers may, by their very nature, be almost immune from presenting users with content that could be considered either harmful or illegal under this legislative framework. The new clause proposed by the noble Lord, Lord Moylan—I am grateful to him for allowing us to explore these matters—and its various consequential amendments, would limit the duty to prevent access to illegal content to core category 2A search providers, rather than all search providers, as is currently the case under Clause 23(3).

The argument that I believe the noble Lord, Lord Moylan, put forward is that the illegal content duty is unduly wide, placing a disproportionate and otherwise unacceptable burden on smaller and/or supposedly safer search providers. He clearly said he was not saying that small was safe—that is now completely understood—but he also said that absolute safety is not achievable. As the noble Baroness, Lady Kidron, said, that is indeed so. If this legislation is too complex and creates the wrong provisions, we will clearly be a long way away from our ambition, which here has to be to have in place the best legislative framework, one that everyone can work with and that provides the maximum opportunity for safety and what we all seek to achieve.

Of course, the flip side of the argument about an unacceptable burden on smaller, or on supposedly safer, search providers may be that they would in fact have very little work to do to comply with the illegal content duty, at least in the short term. But the duty would act as an important safeguard, should the provider’s usual systems prove ineffective with the passage of time. Again, that point was emphasised in this and the previous debate by the noble Baroness, Lady Harding.

We look forward to the Minister’s response to find out which view he and his department subscribe to or, indeed, whether they have another view they can bring to your Lordships’ House. But, on the face of it, the current arrangements do not appear unacceptably onerous.

Amendment 157 in the name of the noble Lord, Lord Pickles, and introduced by the noble Baroness, Lady Deech, deals with search by a different approach by inserting requirements about search services’ publicly available statements into Clause 65. In the debate, the noble Baroness and the noble Lord, Lord Weir, raised very important, realistic examples of where search engines can take us, including to material that encourages racism directed at Jews and other groups and encourages hatred of various groups, including Jews. The amendment talks about issues such as the changing of algorithms or the hiding of content and the need to ensure that the terms of providers’ publicly available statements are applied as consistently.

I look forward to hearing from the Minister in response to Amendment 157 as the tech certainly moves us beyond questions of scope and towards discussion of the conduct of platforms when harm is identified.

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

My Lords, I must first apologise for my slightly dishevelled appearance as I managed to spill coffee down my shirt on my way to the Chamber. I apologise for that—as the fumes from the dried coffee suffuse the air around me. It will certainly keep me caffeinated for the day ahead.

Search services play a critical role in users’ online experience, allowing them easily to find and access a broad range of information online. Their gateway function, as we have discussed previously, means that they also play an important role in keeping users safe online because they have significant influence over the content people encounter. The Bill therefore imposes stringent requirements on search services to tackle the risks from illegal content and to protect children.

Amendments 13, 15, 66 to 69 and 73 tabled by my noble friend Lord Moylan seek to narrow the scope of the Bill so that its safety search duties apply only to the largest search services—categorised in the Bill as category 2A services—rather than to all search services. Narrowing the scope in this way would have an adverse impact on the safety of people using search services, including children. Search services, including combined services, below the category 2A threshold would no longer have a duty to minimise the risk of users encountering illegal content or children encountering harmful content in or via search results. This would increase the likelihood of users, including children, accessing illegal content and children accessing harmful content through these services.

The Bill already takes a targeted approach and the duties on search services will be proportionate to the risk of harm and the capacity of companies. This means that services which are smaller and lower-risk will have a lighter regulatory burden than those which are larger and higher-risk. All search services will be required to conduct regular illegal content risk assessments and, where relevant, children’s risk assessments, and then implement proportionate mitigations to protect users, including children. Ofcom will set out in its codes of practice specific steps search services can take to ensure compliance and must ensure that these are proportionate to the size and capacity of the service.

The noble Baroness, Lady Kidron, and my noble friend Lady Harding of Winscombe asked how search services should conduct their risk assessments. Regulated search services will have a duty to conduct regular illegal content risk assessments, and where a service is likely to be accessed by children it will have a duty to conduct regular children’s risk assessments, as I say. They will be required to assess the level and nature of the risk of individuals encountering illegal content on their service, to implement proportionate mitigations to protect people from illegal content, and to monitor them for effectiveness. Services likely to be accessed by children will also be required to assess the nature and level of risk of their service specifically for children to identify and implement proportionate mitigations to keep children safe, and to monitor them for effectiveness as well.

Companies will also need to assess how the design and operation of the service may increase or reduce the risks identified and Ofcom will have a duty to issue guidance to assist providers in carrying out their risk assessments. That will ensure that providers have, for instance, sufficient clarity about what an appropriate risk assessment looks like for their type of service.

The noble Lord, Lord Allan, and others asked about definitions and I congratulate noble Lords on avoiding the obvious

“To be, or not to be”


pun in the debate we have just had. The noble Lord, Lord Allan, is right in the definition he set out. On the rationale for it, it is simply that we have designated as category 1 the largest and riskiest services and as category 2 the smaller and less risky ones, splitting them between 2A, search services, and 2B, user-to-user services. We think that is a clear framework. The definitions are set out a bit more in the Explanatory Notes but that is the rationale.