Data Protection and Digital Information Bill

Debate between Baroness Stowell of Beeston and Lord Clement-Jones

Committee stage
Monday 22nd April 2024 Grand Committee

[Lord Clement-Jones (LD)]

My Lords, I do not know how unusual this is, but we are on the same page across both sides of the Committee.

First, having signed the amendments by the noble Lord, Lord Lucas, I express my support for the first batch, Amendments 199 to 201, which are strongly supported by the Advertising Association and the Interactive Advertising Bureau for obvious reasons. The noble Lords, Lord Lucas and Lord Bassam, and the noble Viscount, Lord Chandos, have expressed why they are fundamental to advertising on the internet. Audience measurement is an important function, for media owners in particular, to determine the consumption of content and to price advertising space for advertisers.

I understand that the department, DSIT, has conceded that most of the use cases for audience measurement fit within the term “statistical purposes”. It is this area of performance that is so important. As the noble Lord, Lord Bassam, seemed to indicate, we may be within touching distance of agreement on that, but the Minister needs to be explicit about it so that the industry understands what the intent behind that clause really is. As a number of noble Lords have said, this is a specific and targeted exemption for audience measurement and performance cookies that limits the consent exemption for those purposes and, as such, should definitely be supported. I very much hope that, if the Minister cannot give the necessary assurance now, then, as a number of noble Lords have said, he will engage in further discussions.

Amendments 203, which I have signed, and 205 are extremely important too. Amendment 203, picked up clearly by the noble Lord, Lord Bassam, is potentially important; it could save an awful lot of aggravation for users on the internet. It is potentially game-changing given that, when we approach the same site—even Google—we have to keep clicking the cookie. I very much hope the Minister will see the sense in that because, if we are changing the EC regulations, we need to do something sensible and useful like that. It might even give the Bill a good name.

As all noble Lords have rightly said, the Secretary of State needs to think about the implementation of the regulations and what they will affect. Amendment 202 is fundamental and badly needed. You need only look at the list of those who are absolutely concerned about the centralisation of cookies: the Internet Advertising Bureau, the Advertising Association, the Data & Marketing Association, the Market Research Society, the News Media Association, the Incorporated Society of British Advertisers, the Association of Online Publishers and the Professional Publishers Association. I hope that the Government are in listening mode and will listen to their concerns.

As the PPA says, centralising cookie consent with browsers could cause consumers far more harm than good. The Secretary of State’s powers would override cookie consent relationships between individuals and specialist publishers, which the noble Lord, Lord Bassam, talked about in particular. As the PPA says, in all likelihood a significant number of internet users would not consent to cookies from the browser but would consent to cookies on the websites of publishers that they know and trust. If the Secretary of State were to use this power to enforce cookie centralisation, many publishing businesses would be forced to present consumers with paywalls in order to be financially sustainable. As the PPA says, this would lead to consumers missing the opportunity to access high-quality publishing content without having to pay a fee.

The PPA has made an extremely good case. This would amplify existing barriers to competition in the digital market. There are provisions in the DMCC Bill that would give powers to the CMA to address any problems, such as enforced data sharing from platforms to publishers, but centralising cookie consent would completely undermine the objectives of that legislation. It is clear that this Bill should be amended to withdraw the provisions giving the Secretary of State the power to introduce these centralised cookie controls. I very much hope that the Minister will have second thoughts, given the weight of opinion and the impact that the Secretary of State’s powers would have.

[Baroness Stowell of Beeston (Con)]

My Lords, if the Committee will indulge me, I was a little late arriving for the introduction to this group of amendments by my noble friend Lord Lucas, but I heard most of what he said and I will speak briefly. I am quite sympathetic to the arguments about the exemption being too tightly drawn and the advantage that this is likely to give the likes of Google and Meta in the advertising ecology. As the noble Lord, Lord Clement-Jones, said, a range of different trade bodies have raised concerns about this, certainly with me.

From my perspective, the other point of interest that I want to flag is that the Communications and Digital Committee is currently doing an inquiry into the future of news. As part of the evidence that we have taken in that inquiry, one of our witnesses from the news industry raised their concerns about a lack of joined-up thinking, as they described it, within government when it comes to various different bits of legislation in which there are measures that are inadvertently detrimental to the news or publishing industry because there has been no proper understanding or recognition of how the digital news environment is now so interconnected. Something like this, on cookies, could have quite a profound effect on the news and publishing industry, which we know is reliant on advertising and is increasingly feeling the pinch because the value that it gets from digital advertising is being squeezed all the time. I just wanted to reinforce the point, for the benefit of my noble friend the Minister, that concern about this is widespread and real.

Digital Markets, Competition and Consumers Bill

Debate between Baroness Stowell of Beeston and Lord Clement-Jones

3rd reading
Tuesday 26th March 2024 Lords Chamber

[Baroness Stowell of Beeston (Con)]

I hesitate to rise, because I realise I am probably testing the patience of the House, having already spoken in Third Reading. I just wanted to say a couple of things.

I thank my noble friends Lord Camrose and Lord Offord on the Front Bench for their work on this Bill. As they will know, this is legislation for which the Communications and Digital Committee has been calling for several years—it started under the chairmanship of my predecessor, my noble friend Lord Gilbert. It is something that I have been pleased to take a very active involvement in, and I am very pleased to support it passing.

As we think about what this Bill is trying to achieve and why, it is worth also remembering why we in the UK are forging a different path from the ones that Europe and the US are on. In the last few days, we have seen the US DoJ launch a major anti-trust lawsuit against Apple. In the EU, the Commission is taking serious measures against some of the big tech firms to make them comply with the spirit and letter of its new Digital Markets Act. Both situations have an ominous sense of being exactly the kind of lengthy legal battles that favour big tech, which we are trying to avoid.

The House has rightly voted on a number of measures to try to ensure that our regulation can work as it is meant to, in a timely, proportionate and less confrontational manner. That is what the Government are seeking to do with this legislation.

As the Bill leaves here and enters its final stage, I emphasise two measures from among the amendments passed by this House. First, the deadline for the Secretary of State to approve CMA guidance is key in keeping things on track and avoiding concerning delays. Secondly, if the Government and the Commons cannot accept the amendments to revert the appeals process on fines back to JR standard, I hope that my noble friends within government will consider putting a clarification in the Bill that the appeals process on fines cannot be changed in ways that undermine the JR standard or open up avenues for more expansive and protracted legal challenge.

That aside, I am grateful to the Government for bringing forward this important legislation. It will mark out our regulatory regime as different from those in other parts of the world that are having such a big impact—and not necessarily in good ways.

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Stowell. I agree with a huge amount of what she said.

I reiterate the welcome that we on these Benches gave to the Bill at Second Reading. We believe it is vital to tackle the dominance of big tech and to enhance the powers of our competition regulators to tackle it, in particular through the new flexible pro-competition powers and the ability to act ex ante and on an interim basis.

We were of the view, and still are, that the Bill needs strengthening in a number of respects. We have been particularly concerned about the countervailing benefits exemption under Clause 29. This must not be used by big tech as a major loophole to avoid regulatory action. A number of other aspects were inserted into the Bill on Report in the Commons about appeals standards and proportionality. During the passage of the Bill, we added a fourth amendment to ensure that the Secretary of State’s power to approve CMA guidance will not unduly delay the regime coming into effect.

As the noble Baroness, Lady Stowell, said, we are already seeing big tech take an aggressive approach to the EU Digital Markets Act. We therefore believe the Bill needs to be more robust in this respect. In this light, it is essential to retain the four key amendments passed on Report and that they are not reversed through ping-pong when the Bill returns to the Commons.

I thank both Ministers and the Bill team. They have shown great flexibility in a number of other areas, such as online trading standards powers, fake reviews, drip pricing, litigation, funding, cooling-off periods, subscriptions and, above all, press ownership, as we have seen today. They have been assiduous in their correspondence throughout the passage of the Bill, and I thank them very much for that, but in the crucial area of digital markets we have seen no signs of movement. This is regrettable and gives the impression that the Government are unwilling to move because of pressure from big tech. If the Government want to dispel that impression, they should agree with these amendments, which passed with such strong cross-party support on Report.

In closing, I thank a number of outside organisations that have been so helpful during the passage of the Bill—in particular, the Coalition for App Fairness, the Public Interest News Foundation, Which?, Preiskel & Co, Foxglove, the Open Markets Institute and the News Media Association. I also thank Sarah Pughe and Mohamed-Ali Souidi in our own Whips’ Office. Last, but certainly not least, I thank my noble friend Lord Fox for his support and—how shall I put it?—his interoperability.

Given the coalition of interest that has been steadily building across the House during the debates on the Online Safety Bill and now this Bill, I thank all noble Lords on other Benches who have made common cause and, consequently, had such a positive impact on the passage of this Bill. As with the Online Safety Act, this has been a real collaborative effort in a very complex area.

Online Safety Bill

Debate between Baroness Stowell of Beeston and Lord Clement-Jones

Report stage
Wednesday 19th July 2023 Lords Chamber

[Baroness Stowell of Beeston (Con)]

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

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

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

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

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Stowell. My noble friend has spoken very cogently to Amendment 258ZA, and I say in answer to the question posed by the noble Baroness that I do not think this is designed to make big tech companies content. What it is designed to do is bring this out into the open and make it contestable; to see whether or not privacy is being invaded in these circumstances. To that extent it airs the issues and goes quite a long way towards allaying the concerns of those 80 organisations that we have heard from.

I am not going to repeat all the arguments of my noble friend, but many noble Lords, not least on the opposite Benches, have taken us through some of the potential security and privacy concerns which were also raised by my noble friends, and other reasons for us on these Benches putting forward these amendments. We recognise those concerns and indeed we recognise concerns on both sides. We have all received briefs from the NSPCC and the IWF, but I do not believe that essentially what is being proposed here in our amendments, or indeed by the amendments put forward by the noble Lord, Lord Stevenson, are designed in any way to prevent Ofcom doing its duty in relation to child sexual abuse and exploitation material in private messaging. We believe that review by the ICO to ensure that there is no invasion of privacy is a very useful mechanism.

We have all tried to find solutions and the Minister has put forward his stab at this with the skilled persons report. The trouble is, that does not go far enough, as the noble Baroness, Lady Stowell, said. Effectively, Ofcom can choose the skilled person and what the skilled person is asked to advise on. It is not necessarily comprehensive and that is essentially the major flaw.

As regards the amendments put forward by the noble Lord, Lord Stevenson, it is interesting that the Equality and Human Rights Commission itself said:

“We are concerned by the extent and seriousness of CSEA content being shared online. But these proposed measures may be a disproportionate infringement on millions of individuals’ right to privacy where those individuals are not suspected of any wrongdoing”.


It goes on to say:

“We recommend that Ofcom should be required to apply to an independent judicial commissioner—as is the case for mass surveillance under the Investigatory Powers Act”.


I am sure that is the reason why the noble Lord, Lord Stevenson, put forward his amendments; if he put them to a vote, we would follow and support. Otherwise, we will put our own amendments to the House.

Online Safety Bill

Debate between Baroness Stowell of Beeston and Lord Clement-Jones

Report stage
Wednesday 12th July 2023 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, I shall speak very briefly. I feel a responsibility to speak, having spoken in Committee on a similar group of amendments when the noble Lords, Lord Lipsey and Lord McNally, were not available. I spoke against their amendments then and would do so again. I align myself with the comments of my noble friend Lord Black, the noble Lord, Lord Faulks, and the noble Viscount, Lord Colville. As the noble Baroness, Lady Fox, just said, they gave a comprehensive justification for that position. I have no intention of repeating it, or indeed repeating my arguments in Committee, but I think it is worth stating my position.

[Lord Clement-Jones (LD)]

My Lords, we have heard some very well-rehearsed lines during the debate today, with the usual protagonists. Nevertheless, the truth of the matter is that the Press Recognition Panel is as frustrated as many of us on these Benches and other Benches at the failure to implement a post-Leveson scheme of press regulation. Despite many efforts, it has never been fully put into effect.

I do not think I need to repeat a great deal of what has been said today. For instance, the record of IPSO, which the noble Lord, Lord Faulks, talked about, has been very well tracked by Hacked Off. This is not a proposal for state regulation—which is so often, if you like, the canard placed on it.

If not this Bill, which Bill? The media Bill is not going to tackle issues such as this, as my noble friend Lord McNally said. As the noble Lord, Lord Stevenson, has pointed out, this Bill has been a series of conversations —extremely fruitful conversations—but in this particular direction it has borne no fruit at all.

I must admit that, throughout my looking at the draft Bill and continuing to look through its various versions, this opt-out for news publishers has remained a puzzle. The below-the-line opt-out for the mainstream news media always strikes me as strange, because there is no qualification that there should be any curation of that below-the-line, user-generated content. That is peculiar, and it is rather like somebody in the last chance saloon being rewarded with a bouquet. It seems a rather extraordinary provision.

My noble friend Lord Allan rightly pointed to some of the dangers in the new provisions, and indeed in the provisions generally, for these services. I hope the Minister has at least some answers to give to the questions he raised. Progress on this and the scheme that the PRP was set up to oversee, which is still not in place, remain a source of great division across the parties and within them. There is still hope; it may be that under a different Government we would see a different result.

Online Safety Bill

Debate between Baroness Stowell of Beeston and Lord Clement-Jones

Thursday 25th May 2023 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, I welcome government Amendment 135A and the inclusion in the Bill of the new offence of cyberflashing.

I understand why questions have been raised, and indeed arguments advanced, about the way in which this offence has been crafted and whether the onus should be on the perpetrator or the victim of such a crime. I tend to come down on the side of the Law Commission and what is in the Bill as it stands. I have thought about it, and I have listened carefully and read the various briefings. I have weighed it up and found it quite hard at times to make my mind up. On balance. I would stick with what is in the Bill.

The noble Baroness, Lady Burt, said something I am not sure is correct. She said that, in the way it is currently included in the Bill, it will be the responsibility of women and girls to show that they are harmed by this. My understanding is that the opposite of that is true; they just need to report it and the responsibility sits on the shoulders of the person distributing these images. I am sure my noble friend the Minister will be able to confirm that—or otherwise—when he comes to wind up.

The only other thing in that context which I will add—I think this has been touched on by others—is that it is important, in introducing this as a new offence, that we ensure that we educate young people away from what I have been told has now become quite a common practice as a way of expressing interest in one another. I do not think that, just because it is happening, we should tolerate it and say, “Okay, well that’s all right then”. I do not think that it is right, and we should be much clearer about advising and explaining to our young people why that is not the best way to express any kind of interest in anyone, whether they are of the opposite sex or of the same sex. I also understand this is a common practice among gay men as well. I just think that taking photographs of one’s genitals and distributing them to other people is not a good idea—that is my argument.

My noble friend Lady Berridge’s Amendment 271 is an interesting proposal. What I found compelling about it was her argument that we will introduce a new offence in the Bill, and, specifically in that context, she proposes a way to report receiving these pictures when people do not want to receive them, and to do so in a way that makes it easier for the police to see new trends and incidences emerging. It is then more likely that they would be able to pursue a perpetrator. However, although I hope my noble friend the Minister will consider this carefully, I do not know what the tech companies would argue about their position, having been given that responsibility. So I am interested in her proposal and think that it is worth proper consideration, but I say that without the benefit of an understanding of where the tech firms are on it. But, overall, I welcome what the Government propose and offer my support.

[Lord Clement-Jones (LD)]

My Lords, alongside others, I very much welcome government Amendment 135A and how the Minister introduced it. But there is a big “but” as regards much of the rest of what he said. I very much welcome that this will be included as a priority offence, and I join other noble Lords in that—but there is still a view out there that women and girls are being short-changed by the Bill. The other day, we had a debate on the Violence Against Women and Girls Code of Practice, and the same feeling about the cyberflashing offence was very much there, which is why I strongly support Amendments 269 and 270, which would alter the nature of Clause 167.

The equivalence between online and offline was mentioned by my noble friend Lady Burt—I also regret that my noble friend Lady Featherstone has not been with us for some time—and she introduced extremely clearly and well that this kind of cyberflashing offence leads to other and worse offences in both the offline and the online worlds, as we have seen.

Like others, I am in debt to Professor McGlynn for her analysis of the proposed offence. We had evidence from UCL and the Bumble survey, and there is of course also the YouGov survey that shows that nearly half of young women aged 18 to 24 have been sent an unwanted penis image—that is an extraordinary figure. So all of the evidence of this offence is there.

We have heard differing views on the offence—the noble Baronesses, Lady Berridge and Lady Stowell, are on the side of the status quo on the nature of the offence. The fact is that the Government’s proposal covers only some cases of cyberflashing, where motivated by a desire to cause “distress” or for “sexual gratification” with recklessness about causing distress.

I am not a criminal lawyer, but, in answer to the noble Baroness, Lady Stowell, you have to show intent beyond reasonable doubt—that is where the onus on the victim arises. There is a very high barrier in a criminal offence. My noble friend made that point clearly, and the analysis of the noble Baroness, Lady Gohir, was absolutely right that, of course, if you make it a criminal offence, where the issue is about consent rather than intent, you can always be more lenient when an offence does not seem so egregious, where there is clear misunderstanding or where there are other mitigating factors—that is what happens under the criminal law.

This is all about proving the motive—that is the real problem; it is technically called mens rea or the intent—so we need a clear message, as my noble friend said. I believe that we are squandering an opportunity here; it could be a real opportunity for the Government to send a much more powerful signal that the Bill is about protecting women and girls, despite the very welcome addition of abuse under Amendment 135A.

The noble Baroness, Lady Berridge, put her point extremely well. She made a very good case for another addition to the armoury of user-empowerment tools. Although I disagree with her about the ambit of the cyberflashing offence, she proposed something which would be extremely useful to add.

We ought to take heed from the noble Baroness, Lady Morgan, given her legal background. She referred to the Law Commission’s rather inconsistent approach. The very welcome proposal to extend the way that revenge porn events will apply seems to be extremely sensible. I am afraid that, in the battle of the professors, I prefer what Professor McGlynn is saying to what Professor Lewis is saying; that is the choice that I have made.

Following the way that the noble Baroness, Lady Gohir, talked about this issue, we need to call men to account. That is something that the Government need to pay heed to.

That is all I want to say on this subject. This is not just a technical aspect—it is not just a question of whether or not we accept the Law Commission’s advice in this particular case—it is about the difficulty that young women, in particular, will find in enforcing this offence, and we need to be very mindful of that.

Online Safety Bill

Debate between Baroness Stowell of Beeston and Lord Clement-Jones

Committee stage
Thursday 11th May 2023 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, I welcome the amendments the Government have tabled, but I ask the Minister to clarify the effect of Amendment 50E. I declare an interest as chair of the Communications and Digital Select Committee, which has discussed Amendment 50E and the labelling of content for children with the news media organisations. This is a very technical issue, but from what my noble friend was just saying, it seems that content that would qualify for labelling for child protection purposes, and which therefore does not qualify for a right of appeal before the content is so labelled, is not content that would normally be encountered by adults but might happen to appeal to children. I would like to be clear that we are not giving the platforms scope for adding labels to content that they ought not to be adding labels to. That aside, as I say, I am grateful to my noble friend for these amendments.

[Lord Clement-Jones (LD)]

My Lords, like the noble Baroness, Lady Stowell, I have no major objection and support the Government’s amendments. In a sense the Minister got his retaliation in first, because we will have a much more substantial debate on the scope of Clause 14. At this point I welcome any restriction on Clause 14 in the way that the Minister has stated.

Yet to come we have the whole issue of whether an unregulated recognised news publisher, effectively unregulated by the PRP’s arrangements, should be entitled to complete freedom in terms of below-the-line content, where there is no moderation and it does not have what qualifies as independent regulation. Some debates are coming down the track and—just kicking the tyres on the Minister’s amendments—I think the noble Baroness, Lady Stowell, made a fair point, which I hope the Minister will answer.

Online Safety Bill

Debate between Baroness Stowell of Beeston and Lord Clement-Jones

Committee stage
Tuesday 2nd May 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, this has been a really interesting debate. I started out thinking that we were developing quite a lot of clarity. The Government have moved quite a long way since we first started debating senior manager liability, but there is still a bit of fog that needs dispelling—the noble Baronesses, Lady Kidron and Lady Harding, have demonstrated that we are not there yet.

I started off by saying yes to this group, before I got to grips with the government amendments. I broadly thought that Amendment 33, tabled by the noble Lord, Lord Stevenson, and Amendment 182, tabled by the noble Lord, Lord Bethell, were heading in the right direction. However, I was stopped short by Trustpilot’s briefing, which talked about a stepped approach regarding breaches and so on—that is a very strong point. It says that it is important to recognise that not all breaches should carry the same weight. In fact, it is even more than that: certain things should not even be an offence, unless you have been persistent or negligent. We have to be quite mindful as to how you formulate criminal offences.

I very much liked what the noble Lord, Lord Bethell, had to say about the tech view of its own liability. We have all seen articles about tech exceptionalism, and, for some reason, that seems to have taken quite a hold—so we have to dispel that as well. That is why I very much liked what the noble Lord, Lord Curry, said. It seemed to me that that was very much part of a stepped approach, while also being transparent to the object of the exercise and the company involved. That fits very well with the architecture of the Bill.

The noble Baroness, Lady Harding, put her finger on it: the Bill is not absolutely clear. In the Government’s response to the Joint Committee’s report, we were promised that, within three to six months, we would get that senior manager liability. On reading the Bill, I am certainly still a bit foggy about it, and it is quite reassuring that the noble Baroness, Lady Harding, is foggy about it too. Is that senior manager liability definitely there? Will it be there?

The Joint Committee made two other recommendations which I thought made a lot of sense: the obligation to report on risk assessment to the main board of a company, and the appointment of a safety controller, which the noble Lord, Lord Knight, mentioned. Such a controller would make it very clear—as with GDPR, you would have a senior manager who you can fix the duty on.

Like the noble Baroness, Lady Harding, I would very much like to hear from the Minister on the question of personal liability, as well as about Ofcom. It is important that any criminal prosecution is mediated by Ofcom; that is cardinal. You cannot just create criminal offences where you can have a prosecution without the intervention of Ofcom. That is extraordinarily important.

I have just a couple of final points. The noble Baroness, Lady Fox, comes back quite often to this point about regulation being the enemy of innovation. It very much depends what kind of innovation we are talking about. Technology is not necessarily neutral. It depends how the humans who deploy it operate it. In circumstances such as this, where we are talking about children and about smaller platforms that can do harm, I have no qualms about having regulation or indeed criminal liability. That is a really important factor. We are talking about a really important area.

I very strongly support Amendment 219. It deals with a really important aspect which is completely missing from the Bill. I have a splendid briefing here, which I am not going to read out, but it is all about Mastodon being one example of a new style of federated platform in which the app or hub for a network may be category 1 owing to the size of its user base but individual subdomains or networks sitting below it could fall under category 2 status. I am very happy to give a copy of the briefing to the Minister; it is a really well-written brief, and demonstrates entirely some of the issues we are talking about here.

I reassure the noble Lord, Lord Knight, that I think the amendment is very well drafted. It is really quite cunning in the way that it is done.

[Baroness Stowell of Beeston (Con)]

My Lords, I wonder whether I can make a brief intervention—I am sorry to do so after the noble Lord, Lord Clement-Jones, but I want to intervene before my noble friend the Minister stands up, unless the Labour Benches are about to speak.

I have been pondering this debate and have had a couple of thoughts. Listening to the noble Lord, Lord Clement-Jones, I am reminded of something which was always very much a guiding light for me when I chaired the Charity Commission, and therefore working in a regulatory space: regulation is never an end in itself; you regulate for a reason.

I was struck by the first debate we had on day one of Committee about the purpose of the Bill. If noble Lords recall, I said in that debate that, for me, the Bill at its heart was about enhancing the accountability of the platforms and the social media businesses. I felt that the contribution from my noble friend Lady Harding was incredibly important. What we are trying to do here is to use enforcement to drive culture change, and to force the organisations not to never think about profit but to move away from profit-making to focusing on child safety in the way in which they go about their work. That is really important when we start to consider the whole issue of enforcement.

It struck me at the start of this discussion that we have to be clear what our general approach and mindset is about this part of our economy that we are seeking to regulate. We have to be clear about the crimes we think are being committed or the offences that need to be dealt with. We need to make sure that Ofcom has the powers to tackle those offences and that it can do so in a way that meets Parliament’s and the public’s expectations of us having legislated to make things better.

I am really asking my noble friend the Minister, when he comes to respond on this, to give us a sense of clarity on the whole question of enforcement. At the moment, it is insufficiently clear. Even if we do not get that level of clarity today, when we come back later on and look at enforcement, it is really important that we know what we are trying to tackle here.

Online Safety Bill

Debate between Baroness Stowell of Beeston and Lord Clement-Jones

Committee stage
Wednesday 19th April 2023 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, just before the noble Lord, Lord Clement-Jones gets to wind up, I wanted to ask a question and make a point of clarification. I am grateful for the contribution from the noble Baroness, Lady Chakrabarti; that was a helpful point to make.

My question, which I was going to direct to the noble Lord, Lord Stevenson—although it may be one that the noble Lord, Lord Clement-Jones, wants to respond to if the noble Lord, Lord Stevenson, is not coming back—is about the use of the word “purpose” versus “objective”. The point I was trying to make in referring to the Joint Committee’s report was that, when it set out the limbs of this amendment, it was referring to them as objectives for Ofcom. What we have here is an amendment that is talking about purposes of the Bill, and in the course of this debate we have been talking about the need for clarity of purpose. The point I was trying to make was not that I object to the contents of this amendment, but that if we are looking for clarity of purpose to inform the way we want people to behave as a result of this legislation, I would make it much shorter and simpler, which is why I pointed to subsection (g) of the proposed clause.

It may be that the content of this amendment—and this is where I pick up the point the noble Baroness, Lady Chakrabarti, was making—is not objectionable, although I take the point made by the noble Baroness, Lady Fox. However, the noble Baroness, Lady Chakrabarti, is right: at the moment, let us worry less about the specifics. Then, we can be clearer about what bits of the amendment are meant to be doing what, rather than trying to get all of them to offer clarity of purpose. That is my problem with it: there are purposes, which, as I say, are helpful structurally in terms of how an organisation might go about its work, and there is then the clarity of purpose that should be driving everything. The shorter, simpler and more to the point we can make that, the better.

[Lord Clement-Jones (LD)]

My Lords, I thank the noble Baroness. I hope I have not appeared to rush the proceedings, but I am conscious that there are three Statements after the Bill. I thank the noble Lord, Lord Stevenson, for tabling this amendment, speaking so cogently to it and inspiring so many interesting and thoughtful speeches today. He and I have worked on many Bills together over the years, and it has been a real pleasure to see him back in harness on the Opposition Front Bench, both in the Joint Committee and on this Bill. Long may that last.

It has been quite some journey to get to this stage of the Bill; I think we have had four Digital Ministers and five Prime Ministers since we started. It is pretty clear that Bismarck never said, “Laws are like sausages: it’s best not to see them being made”, but whoever did say it still made a very good point. The process leading to today’s Bill has been particularly messy, with Green and White Papers; a draft Bill; reports from the Joint Committee and Lords and Commons Select Committees; several versions of the Bill itself; and several government amendments anticipated to come. Obviously, the fact that the Government chose to inflict last-minute radical surgery on the Bill to satisfy what I believe are the rather unjustified concerns of a small number in the Government’s own party made it even messier.

It is extremely refreshing, therefore, to start at first principles, as the noble Lord, Lord Stevenson, has done. He has outlined them and the context in which we should see them—namely, we should focus essentially on the systems, what is readily enforceable and where safety by design and transparency are absolutely the essence of the purpose of the Bill. I share his confidence in Ofcom and its ability to interpret those purposes. I say to the noble Baroness, Lady Stowell, that I am not going to dance on the heads of too many pins about the difference between “purpose” and “objective”. I think it is pretty clear what the amendment intends, but I do have a certain humility about drafting; the noble Baroness, Lady Chakrabarti, reminded us of that. Of course, one should always be open to change and condensation of wording if we need to do that. But we are only at Amendment 1 in Committee, so there is quite a lot of water to flow under the bridge.

It is very heartening that there is a great deal of cross-party agreement about how we must regulate social media going forward. These Benches—and others, I am sure—will examine the Bill extremely carefully and will do so in a cross-party spirit of constructive criticism, as we explained at Second Reading. Our Joint Committee on the draft Bill exemplified that cross-party spirit, and I am extremely pleased that all four signatories to this amendment served on the Joint Committee and readily signed up to its conclusions.

Right at the start of our report, we made a strong case for the Bill to set out these core objectives, as the noble Lord, Lord Stevenson, has explained, so as to provide clarity—that word has been used around the Committee this afternoon—for users and regulators about what the Bill is trying to achieve and to inform the detailed duties set out in the legislation. In fact, I believe that the noble Lord, Lord Stevenson, has improved on that wording by including a duty on the Secretary of State, as well as Ofcom, to have regard to the purposes.

We have heard some very passionate speeches around the Committee for proper regulation of harms on social media. The case for that was made eloquently to the Joint Committee by Ian Russell and by witnesses such as Edleen John of the FA and Frances Haugen, the Facebook whistleblower. A long line of reports by Select Committees and all-party groups have rightly concluded that regulation is absolutely necessary given the failure of the platforms even today to address the systemic issues inherent in their services and business models.

The introduction to our Joint Committee report makes it clear that without the original architecture of a duty of care, as the White Paper originally proposed, we need an explicit set of objectives to ensure clarity for Ofcom when drawing up the codes and when the provisions of the Bill are tested in court, as they inevitably will be. Indeed, in practice, the tests that many of us will use when judging whether to support amendments as the Bill passes through the House are inherently bound up with these purposes, several of which many of us mentioned at Second Reading. Decisions may need to be made on balancing some of these objectives and purposes, but that is the nature of regulation. I have considerable confidence, as I mentioned earlier, in Ofcom’s ability to do this, and those seven objectives—as the right reverend Prelate reminded us, the rule of seven is important in other contexts—set that out.

In their response to the report published more than a year ago, the Government repeated at least half of these objectives in stating their own intentions for the Bill. Indeed, they said:

“We are pleased to agree with the Joint Committee on the core objectives of the Bill”,


and, later:

“We agree with all of the objectives the Joint Committee has set out, and believe that the Bill already encapsulates and should achieve these objectives”.


That is exactly the point of dispute: we need this to be explicit, and the Government seem to believe that it is implicit. Despite agreeing with those objectives, at paragraph 21 of their response the Government say:

“In terms of the specific restructure that the Committee suggested, we believe that using these objectives as the basis for Ofcom’s regulation would delegate unprecedented power to a regulator. We do not believe that reformulating this regulatory framework in this way would be desirable or effective. In particular, the proposal would leave Ofcom with a series of high-level duties, which would likely create an uncertain and unclear operating environment”.


That is exactly the opposite of what most noble Lords have been saying today.

It has been an absolute pleasure to listen to so many noble Lords across the Committee set out their ambitions for the Bill and their support for this amendment. It started with the noble Baroness, Lady Kidron, talking about this set of purposes being the “North Star”. I pay tribute to her tireless work, which drove all of us in the Joint Committee on in an extremely positive way. I am not going to go through a summing-up process, but what my noble friend had to say about the nature of the risk we are undertaking and the fact that we need to be clear about it was very important. The whole question of clarity and certainty for business and the platforms, in terms of making sure that they understand the purpose of the Bill—as the noble Baroness, Lady Harding, and many other noble Lords mentioned—is utterly crucial.

If noble Lords look at the impact assessment, they will see that the Government seem to think the cost of compliance is a bagatelle—but, believe me, it will not be. It will be a pretty expensive undertaking to train people in those platforms, across social media start-ups and so on to understand the nature of their duties.