Online Safety Bill

Debate between Baroness Ritchie of Downpatrick and Lord Bishop of Oxford

Committee stage
Tuesday 23rd May 2023 Lords Chamber

[The Lord Bishop of Oxford]

My Lords, it is such a privilege to follow the noble Baroness, Lady Benjamin. I pay tribute to her years of campaigning on this issue and the passion with which she spoke today. It is also a privilege to follow the noble Baroness, Lady Kidron, and the noble Lord, Lord Bethell, in supporting all the amendments in this group. They are vital to this Bill, as all sides of this Committee agree. They all have my full support.

When I was a child, my grandparents’ home, like most homes, was heated by a coal fire. One of the most vital pieces of furniture in any house where there were children in those days was the fireguard. It was there to prevent children getting too near to the flame and the smoke, either by accident or by design. It needed to be robust, well secured and always in position, to prevent serious physical harm. You might have had to cut corners on various pieces of equipment for your house, but no sensible family would live without the best possible fireguard they could find.

We lack any kind of fireguard at present and the Bill currently proposes an inadequate fireguard for children. A really important point to grasp on this group of amendments is that children cannot be afforded the protections that the Bill gives them unless they are identified as children. Without that identification, the other protections fail. That is why age assurance is so foundational to the safety duties and mechanisms in the Bill. Surely, I hope, the Minister will acknowledge both that we have a problem and that the present proposals offer limited protection. We have a faulty fireguard.

These are some of the consequences. Three out of five 11 to 13 year-olds have unintentionally viewed pornography online. That is most of them. Four out of five 12 to 15 year-olds say they have had a potentially harmful experience online. That is almost universal. Children as young as seven are accessing pornographic content and three out of five eight to 11 year-olds—you might want to picture a nine year-old you know—have a social media profile, when they should not access those sites before the age of 13. That profile enables them to view adult content. The nation’s children are too close to the fire and are being harmed.

There is much confusion about what age assurance is. As the noble Baroness, Lady Kidron, has said, put simply it is the ability to estimate or verify an individual’s age. There are many different types of age assurance, from facial recognition to age verification, which all require different levels of information and can give varying levels of assurance. At its core, age assurance is a tool which allows services to offer age-appropriate experiences to their users. The principle is important, as what might be appropriate for a 16 year-old might be inappropriate for a 13 year-old. That age assurance is absolutely necessary to give children the protections they deserve.

Ofcom’s research shows that more than seven out of 10 parents of children aged 13 to 17 were concerned about their children seeing age-inappropriate content or their child seeing adult or sexual content online. Every group I have spoken to about the Bill in recent months has shared this concern. Age assurance would enable services to create age-appropriate experiences for children online and can help prevent children’s exposure to this content. The best possible fireguard would be in place.

Different levels of age assurance are appropriate in different circumstances. Amendments 161 and 142 establish that services which use age assurance must do so in line with the basic rules of the road. They set out that age assurance must be proportionate to the level of risk of a service. For high-risk services, such as pornography, sites much establish the age of their users beyond reasonable doubt. Equally, a service which poses no risk may not need to use age assurance or may use a less robust form of age assurance to engage with children in an age-appropriate manner—for example, serving them the terms and conditions in a video format.

As has been said, age assurance must be privacy-preserving. It must not be used as an excuse for services to use the most intrusive technology for data-extractive purposes. These are such common-sense amendments, but vital. They will ensure that children are prevented from accessing the most high-risk sites, enable services to serve their users age-appropriate experiences, and ensure that age assurance is not used inappropriately in a way that contravenes a user’s right to privacy.

As has also been said, there is massive support for this more robust fireguard in the country at large, across this House and, I believe, in the other place. I have not yet been able to understand, or begin to understand, the Government’s reasons for not providing the best protection for our children, given the aim of the Bill. Better safeguards are technically possible and eminently achievable. I would be grateful if the Minister could attempt to explain what exactly he and the Government intend to do, given the arguments put forward today and the ongoing risks to children if these amendments are not adopted.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, it is a pleasure to follow the right reverend Prelate the Bishop of Oxford. He used an interesting analogy of the fireguard; what we want in this legislation is a strong fireguard to protect children.

Amendments 183ZA and 306 are in my name, but Amendment 306 also has the name of the noble Lord, Lord Morrow, on it. I want to speak in support of the general principles raised by the amendments in this group, which deal with five specific areas, namely: the definition of pornography; age verification; the consent of those participating in pornographic content; ensuring that content which is prohibited offline is also prohibited online; and the commencement of age verification. I will deal with each of these broad topics in turn, recognising that we have already dealt with many of the issues raised in this group during Committee.

As your Lordships are aware, the fight for age verification has been a long one. I will not relive that history but I remind the Committee that when the Government announced in 2019 that they would not implement age verification, the Minister said:

“I believe we can protect children better and more comprehensively through the online harms agenda”.—[Official Report, Commons, 17/10/19; col. 453.]


Four years later, the only definition for pornography in the Bill is found in Clause 70(2). It defines pornographic content as

“produced solely or principally for the purpose of sexual arousal”.

I remain to be convinced that this definition is more comprehensive than that in the Digital Economy Act 2017.

Amendment 183ZA is a shortened version of the 2017 definition. I know that the Digital Economy Act is out of vogue but it behoves us to have a debate about the definition, since what will be considered as pornography is paramount. If we get that wrong, age verification will be meaningless. Everything else about the protections we want to put in place relies on a common understanding of when scope of age verification will be required. Put simply, we need to know what it is we are subjecting to age verification and it needs to be clear. The Minister stated at Second Reading that he believed the current definition is adequate. He suggested that it ensured alignment across different pieces of legislation and other regulatory frameworks. In reviewing other legislation, the only clear thing is this: there is no standard definition of pornography across the legislative framework.

For example, Section 63 of the Criminal Justice and Immigration Act 2008 uses the definition in the Bill, but it requires a further test to be applied: meeting the definition of “extreme” material. Section 368E of the Communications Act 2003 regulates online video on demand services. That definition uses the objective tests of “prohibited material”, meaning material too extreme to be classified by the British Board of Film Classification, and “specially restricted material”, covering R18 material, while also using a subjective test that covers material that

“might impair the physical, mental or moral development”

of under-18s.

Online Safety Bill

Debate between Baroness Ritchie of Downpatrick and Lord Bishop of Oxford

Committee stage
Thursday 27th April 2023 Lords Chamber

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Kidron. I have listened intently today, and there is no doubt that this Bill not only presents many challenges but throws up the complexity of the whole situation. I think it was the noble Lord, Lord Kamall, in an earlier group who raised the issues of security, safety and freedom. I would add the issue of rights, because we are trying to balance all these issues and characterise them in statute, vis-à-vis the Bill.

On Tuesday, we spoke about one specific harm—pornography—on the group of amendments that I had brought forward. But I made clear at that time that I believe this is not the only harm, and I fully support the principles of the amendments from the noble Baroness, Lady Kidron. I would obviously like to get some clarity from her on the amendments, particularly as to how they relate to other clauses in the Bill.

The noble Baroness has been the pioneer in this field, and her expertise is well recognised across the House. I believe that these amendments really take us to the heart of the Bill and what we are trying to achieve—namely, to identify online harms to children, counteract them and provide a level of safety to young people.

As the noble Lord, Lord Clement-Jones, said on Tuesday,

“there is absolutely no doubt that across the Committee we all have the same intent; how we get there is the issue between us”.—[Official Report, 25/4/23; col. 1196.]

There is actually not that much between us. I fully agree with the principle of putting some of the known harms to children in the Bill. If we know the harms, there is little point in waiting for them to be defined in secondary legislation by Clause 54.

It is clear to me that there are harms to children that we know about, and those harms will not change. It would be best to name those harms clearly in the Bill when it leaves this House. That would allow content providers, search engines and websites in scope of the Bill to prepare to make any changes they need to keep children safe. Perhaps the Minister could comment on that aspect. We also know that parents will expect some harms to be in the Bill. The noble Baroness, Lady Kidron, laid out what they are, and I agree with her analysis. These issues are known and we should not wait for them to be named.

While known harms should be placed into the Bill, I know, understand and appreciate that the Government are concerned about future-proofing. However, I am of the view that a short list of key topics will not undermine that principle. Indeed, the Joint Committee’s report on the draft Bill stated,

“we recommend that key, known risks of harm to children are set out on the face of the Bill”.

In its report on the Bill, the DCMS Select Committee in the other place agreed, saying

“that age-inappropriate or otherwise inherently harmful content and activity (like pornography, violent material, gambling and content that promotes or is instructive in eating disorders, self-harm and suicide) should appear on the face of the Bill”.

Has there been any further progress in discussions on those issues?

At the beginning of the year, the Children’s Commissioner urged Parliamentarians

“to define pornography as a harm to children on the fact of the … Bill, such that the regulator, Ofcom, may implement regulation of platforms hosting adult content as soon as possible following the passage of the Bill”.

I fully agree with the Children’s Commissioner. While the ways in which pornographic content is delivered will change over time, the fact that pornography is harmful to children will not change. Undoubtedly, with the speed of technology—something that the noble Lord, Lord Allan of Hallam, knows a lot more about than the rest of us, having worked in this field—it will no doubt change and we will be presented with new types of challenges.

I therefore urge the Government to support the principle that the key risks are in the Bill, and I thank the noble Baroness, Lady Kidron, for raising this important principle. However, I hope she will indulge me as I seek to probe some of the detail of her amendments and their interactions with the architecture of other parts of the Bill. As I said when speaking to Clause 49 on Tuesday, the devil is obviously in the detail.

First, Clause 54 defines what constitutes

“Content that is harmful to children”,

and Clause 205 defines harm, and Amendment 93 proposes an additional new list of harms. As I have already said, I fully support the principle of harms being in the Bill, but I raise a question for the noble Baroness. How does she see these three definitions working together? That might refer back to a preliminary discussion that we had in the tearoom earlier.

These definitions of harms are in addition to the content to be defined as primary priority content and priority content. Duties in Clauses 11 and 25 continue to refer to these two types of content for Part 3 services, but Amendments 20 and 74 would remove the need for risk assessments in Clauses 10 and 24 to address these two types of content. It seems that the amendments could create a tension in the Bill, and I am interested to ascertain how the noble Baroness, Lady Kidron, foresees that tension operating. Maybe she could give us some detail in her wind-up about that issue. An explanation of that point may bring some clarity to understanding how the new schedule that the noble Baroness proposes will work alongside the primary priority content and the priority content lists. Will the schedule complement primary priority content, or will it be an alternative?

Secondly, as I said, some harms are known but there are harms that are as yet unknown. Will the noble Baroness, Lady Kidron, consider a function to add to the list of content in her Amendment 93, in advance of us coming back on Report? There is no doubt that the online space is rapidly changing, as this debate has highlighted. I can foresee a time when other examples of harm should be added to the Bill. I accept that the drafting is clear that the list is not exclusive, but it is intended to be a significant guide to what matters to the public and Parliament. I also accept that Ofcom can provide guidance on other content under Amendment 123, but, without a regulatory power added to Amendment 93, it feels that we are perhaps missing a belt-and-braces approach to online harms to children. After all, our principal purpose here is to protect children from online harm.

I commend the noble Baroness, Lady Kidron, on putting these important amendments before the Committee, and I fully support the principle of what she seeks to achieve. But I hope that, on further reflection, she will look at the points I have suggested. Perhaps she might suggest other ideas in her wind-up, and we could have further discussions in advance of Report. I also look forward to the Minister’s comments on these issues.

[The Lord Bishop of Oxford]

My Lords, I support Amendments 20, 93 and 123, in my name and those of the noble Baroness, Lady Kidron, and the noble Lords, Lord Bethell and Lord Stevenson. I also support Amendment 74 in the name of the noble Baroness, Lady Kidron. I pay tribute to the courage of all noble Lords and their teams, and of the Minister and the Bill team, for their work on this part of the Bill. This work involves the courage to dare to look at some very difficult material that, sadly, shapes the everyday life of too many young people. This group of amendments is part of a package of measures to strengthen the protections for children in the Bill by introducing a new schedule of harms to children and plugging a chronological gap between Part 3 and Part 5 services, on when protection from pornography comes into effect.

Every so often in these debates, we have been reminded of the connection with real lives and people. Yesterday evening, I spent some time speaking on the telephone with Amanda and Stuart Stephens, the mum and dad of Olly Stephens, who lived in Reading, which is part of the diocese of Oxford. Noble Lords will remember that Olly was tragically murdered, aged 13, in a park near his home, by teenagers of a similar age. Social media played a significant part in the investigation and in the lives of Olly and his friends—specifically, social media posts normalising knife crime and violence, with such a deeply tragic outcome.