Online Safety Bill

Debate between Lord Allan of Hallam and Baroness Stowell of Beeston

3rd reading
Wednesday 6th September 2023 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, I shall ask my noble friend the Minister a question about encryption but, before I do, I will briefly make a couple of other points. First, I echo all the tributes paid around the House to those involved in this legislation. It is no secret that I would have preferred the Bill to be about only child safety, so I particularly congratulate the Government, and the various Members who focused their efforts in that area, on what has been achieved via the Bill.

That said, the Government should still consider other non-legislative measures, such as banning smartphones in schools and government guidance for parents on things such as the best age at which to allow their children to have their own smartphones. These may not be points for DCMS, but they are worth highlighting at this point, as the Bill leaves us, soon to become legislation.

As I said on Report, I remain concerned about the reintroduction of some protections for adults, in lieu of “legal but harmful”, without any corresponding amendments to reinforce to Ofcom that freedom of expression must be the top priority for adults. We now have to leave it to Ofcom and see what happens. I know that the current leadership is deeply conscious of its responsibilities.

On encryption, I was pleased to hear what my noble friend said when he responded to the debate at Third Reading. If he is saying that the technology not existing means that Clause 122 cannot be deployed, as it were, by Ofcom, does that mean that the oversight measures that currently exist would not be deployed? As my noble friend will recall, one of the areas that we were still concerned about in the context of encryption was that what was in the Bill did not mirror what exists for RIPA. I am not sure whether that means that, because Clause 122 has been parked, our oversight concerns have been parked too. It would be helpful if the Minister could clarify that.

In the meantime, in the absence of Clause 122, it is worth us all reinforcing again that we want the tech firms to co-operate fully with law enforcement, either because a user has alerted them to illegal activity or when law enforcement suspects criminal behaviour and seeks their help. In that latter context, it would be helpful to understand what the Minister has said and to know what oversight that might involve. I congratulate my noble friend on this marathon Bill, and I am sorry to have delayed its passing.

[Lord Allan of Hallam (LD)]

My Lords, I will make a short contribution so that I do not disappoint the noble Lord, Lord Moylan; I will make a few direct and crunchy comments. First, I thank colleagues who participated in the debate for giving me a hearing, especially when I raised concerns about their proposals. It has been a constructive process, where we have been, as the Minister said, kicking the tyres, which is healthy in a legislature. It is better to do it now than to find faults when something has already become law.

I am in the unusual position of having worked on problems comparable to those we are now placing on Ofcom’s desk. I have enormous empathy for it and the hard work we are giving it. I do not think we should underestimate just how difficult this job is.

I want to thank the Minister for the additional clarification of how Ofcom will give orders to services that provide private communications. Following on from what the noble Baroness, Lady Stowell, said, I think this is a challenging area. We want Ofcom to give orders where this is easy—for example, to an unencrypted service hosting child sexual abuse material. The technology can be deployed today and is uncontroversial, so it is important that we do not forget that.

I heard the Minister say that we do not want Ofcom to move so fast that it breaks encryption. It should be moving but it should be careful. Those are the fears that have been expressed outside: on the day that this becomes law, Ofcom will issue orders to services providing encrypted communications that they will not be able to accept and therefore they will leave the UK. I think I heard from the Minister today that this is not what we want Ofcom to do. At the same time, as the noble Baroness, Lady Stowell said, we are not expecting Ofcom to ease off; any online service should be doing everything technically possible and feasible to deal with abhorrent material.

I humbly offer three pieces of advice to Ofcom as we pass the baton to it. This is based on having made a lot of mistakes in the past. If I had been given this advice, I might have done a better job in my previous incarnation. First, you cannot overconsult; Ofcom should engage with all interested parties, including those who have talked to us throughout the process of the Bill. It should engage with them until it is sick of engaging with them and then it should engage some more. In particular, Ofcom should try to bring together diverse groups, so I hope it gets into a room the kind of organisations that would be cheering on the noble Lord, Lord Moylan, as well as those that would be cheering on the noble Baroness, Lady Kidron. If Ofcom can bring them into the room, it has a chance of making some progress with its regulations.

Secondly, be transparent. The more information that Ofcom provides about what it is doing, the less space it will leave for people to make up things about what it is doing. I said this in the previous debate about the access request but it applies across the piece. We are starting to see some of this in the press. We are here saying that it is great that we now have a government regulator—independent but part of the UK state—overseeing online services. As soon as that happens, we will start to see the counterreaction of people being incredibly suspicious that part of the UK state is now overseeing their activity online. The best way to combat that is for Ofcom to be as transparent as possible.

Thirdly, explain the trade-offs you are making. This legislation necessarily involves trade-offs. I heard it again in the Minister’s opening remarks: we have indulged in a certain amount of cakeism. We love freedom of expression but we want the platforms to get rid of all the bad stuff. The rubber is going to hit the road once Ofcom has the powers and, in many cases, it will have to decide between one person’s freedom of expression and another’s harm. My advice is not to pretend that you can make both sides happy; you are going to disappoint someone. Be honest and frank about the trade-offs you have made. The legislation has lots of unresolved trade-offs in it because we are giving lots of conflicting instructions. As politicians, we can ride that out, but when Ofcom gets this and has to make real decisions, my advice would be to explain the trade-offs and be comfortable with the fact that some people will be unhappy. That is the only way it will manage to maintain confidence in the system. With that, I am pleased that the Bill has got to this stage and I have a huge amount of confidence in Ofcom to take this and make a success of it.

Online Safety Bill

Debate between Lord Allan of Hallam and Baroness Stowell of Beeston

Report stage
Monday 10th July 2023 Lords Chamber

[Lord Allan of Hallam (LD)]

That point is well made. In support of that, if the public space treated me in a discriminatory way, I would expect to have redress, but I do not think I have a right in every public space to say everything I like in the classic Article 8 sense. My right vis-à-vis the state is much broader than my right vis-à-vis any public space that I am operating in where norms apply as well as my basic legal rights. Again, to take the pub example, if I went in and made a racist speech, I may well be thrown out of the pub even though it is sub-criminal and the police are never called; they do not need to be as the space itself organises it.

I am making the point that terms of service are about managing these privately managed public services, and it would be a mistake to equate them entirely with our right to speak or the point at which the state can step in and censor us. I understand the point about state interference but it cuts both ways: both the state interfering in excessively censoring what we can say but also the state potentially interfering in the management of what is, after all, a private space. To refer back to the US first amendment tradition, a lot of that was about freedom of religion and precisely about enabling heterodoxy. The US did not want an orthodoxy in which one set of rules applied everywhere to everybody. Rather, it wanted people to have the right to dissent, including in ways that were exclusive. You could create your own religious sect and you could not be told not to have those beliefs.

Rolling that power over to the online world, online services, as long as they are non-discriminatory, can have quite different characters. Some will be very restrictive of speech like a restrictive religious sect; some will be very open and catholic, with a small “c”, in the sense of permitting a broad range of speech. I worry about some of the amendments in case there is a suggestion that Ofcom would start to tell a heterodox community of online services that there is an orthodox way to run their terms of service; I would rather allow this to be a more diverse environment.

Having expressed some concerns, I am though very sympathetic to Amendment 162 on Section 5 of the Public Order Act. I have tried in our debates to bring some real experience to this. There are two major concerns about the inclusion of the Public Order Act in the Bill. One is a lack of understanding of what that means. If you look at the face of the language that has been quoted at us, and go back to that small service that does not have a bunch of lawyers on tap, it reads as though it is stopping any kind of abusive content. Maybe you will google it, as I did earlier, and get a little thing back from the West Yorkshire Police. I googled: “Is it illegal to swear in the street?”. West Yorkshire Police said, “Yes, it is”. So if you are sitting somewhere googling to find out what this Public Order Act thing means, you mind end up thinking, “Crikey, for UK users, I have to stop them swearing”. There is a real risk of misinterpretation.

The second risk is that of people deliberately gaming the system; again, I have a real-life example from working in one of the platforms. I had people from United Kingdom law enforcement asking us to remove content that was about demonstrations by far-right groups. They were groups I fundamentally disagree with, but their demonstrations did not appear to be illegal. The grounds cited were that, if you allow this content to go ahead and the demonstration happens, there will be a Public Order Act offence. Once you get that on official notepaper, you have to be quite robust to say, “No, I disagree”, which we did on occasion.

I think there will be other services that receive Public Order Act letters from people who seem official and they will be tempted to take down content that is entirely legal. The critical thing here is that that content will often be political. In other parts of the Bill, we are saying that we should protect political speech, yet we have a loophole here that risks that.

I am sure the Minister will not concede these amendments, but I hope he will concede that it is important that platforms are given guidance so that they do not think that somebody getting upset about a political demonstration is sufficient grounds to remove the content as a Public Order Act offence. If you are a local police officer it is much better to get rid of that EDL demonstration, so you write to the platform and it makes your life easier, but I do not think that would be great from a speech point of view.

Finally, I turn to the point made by the noble Lord, Lord Moylan, on Amendment 188 about the ECHR Article 8 exemption. As I read it, if your terms of service are not consistent with ECHR Article 8—and I do not think they will be for most platforms—you then get an exemption from all the other duties around appeals and enforcing them correctly. It is probably a probing amendment but it is a curious way of framing it; it essentially says that, if you are more restrictive, you get more freedom in terms of the Ofcom relationship. I am just curious about the detail of that amendment.

It is important that we have this debate and understand this relationship between the state, platforms and terms of service. I for one am persuaded that the general framework of the Bill makes sense; there are necessary and proportionate restrictions. I am strongly of the view that platforms should be allowed to be heterodox in their terms of service. Ofcom’s job is very much to make sure that they are done correctly but not to interfere with the content of those terms of service beyond that which is illegal. I am persuaded that we need to be extraordinarily careful about including Public Order Act offences; that particular amendment needs a good hearing.

[Baroness Stowell of Beeston (Con)]

My Lords, I have said several times when we have been debating this Bill—and I will probably say it again when we get to the group about powers—that, for me, the point of the Online Safety Bill is to address the absence of accountability for the extraordinary power that the platforms and search engines have over what we see online and, indeed, how we live and engage with each other online. Through this Bill, much greater responsibility for child safety will be placed on the platforms. That is a good thing; I have been very supportive of the measures to ensure that there are strong protections for children online.

The platforms will also have responsibility, though, for some measures to help adults protect themselves. We must not forget that, the more responsibility that platforms have to protect, the more power we could inadvertently give them to influence what is an acceptable opinion to hold, or to shape society to such an extent that they can even start to influence what we believe to be right or wrong—we are talking about that significant amount of power.

I was of the camp that was pleased when the Government removed the legal but harmful aspects of the Bill, because for me they represented a serious risk to freedom of expression. As I just described, I felt that they risked too much inadvertent power, as it were, going to the platforms. But, with the Government having done that, we have seen through the passage of the Bill some push-back, which is perfectly legitimate and understandable—I am not criticising anyone—from those who were concerned about that move. In response to that, the Government amended the Bill to provide assurances and clarifications on things like the user-empowerment tools. As I said, I do not have any problem; although I might not necessarily support some of the specific measures that were brought forward, I am okay with that as a matter of principle.

However, as was explained by my noble friend Lord Moylan and the noble Baroness, Lady Fox, there has not been a similar willingness from the Government to reassure those who remain concerned about the platforms’ power over freedom of expression. We have to bear in mind that some people’s concerns in this quarter remained even when the legal but harmful change was made—that is, the removal of legal but harmful was a positive step, but it did not go far enough for some people with concerns about freedom of expression.

I am sympathetic to the feeling behind this group, which was expressed by my noble friend and the noble Baroness, Lady Fox. I am sympathetic to many of the amendments. As the noble Lord, Lord Allan of Hallam, pointed out, specifically Amendment 162 in relation to the Public Order Act seems worthy of further consideration by the Government. But the amendments in the group that caught my attention place a specific duty on Ofcom in regard to freedom of expression when drawing up or amending codes of practice or other guidance—these amendments are in my noble friend Lord Moylan’s name. When I looked at them, I did not think that they undermined anything else that the Government brought forward through the amendments to the Bill, as he said, but I thought that they would go a long way towards enforcing the importance of freedom of expression as part of this regulatory framework—one that we expect Ofcom to attach serious importance to.

I take on board what the noble Lord, Lord Allan, said about the framework of this legislation being primarily about safeguarding and protection. The purpose of the Bill is not to enhance freedom of expression, but, throughout its passage, that has none the less always been a concern. It is right that the Government seek to balance these two competing fundamental principles. I ask whether more can be done—my noble friend pointed to the recommendations of the Equality and Human Rights Commission and how they reinforce some of what he proposed. I would like to think that my noble friend the Minister could give some greater thought to this.

As was said, it is to the Government’s credit how much they have moved on the Bill during its passage, particularly between Committee and Report. That was quite contrary to the sense that I think a lot of us felt during the early stages of our debates. It would be a shame if, once the Bill leaves the House, it is felt that the balance is not as fine—let me put it like that—as some people feel it needs to be. I just wanted to express some support and ask my noble friend the Minister to give this proper and serious consideration.

Online Safety Bill

Debate between Lord Allan of Hallam and Baroness Stowell of Beeston

Report stage
Thursday 6th July 2023 Lords Chamber

[Lord Allan of Hallam (LD)]

On the noble Baroness’s point, that is why I intervened in the debate: so that we are all clear. We are not saying that, for priority content, it is an amber light and not a red light. We are not saying, “Just remove all this stuff”; it would be a wrong response to the Bill to say, “It’s a fictional character being slaughtered so remove it”, because now we have removed “Twilight”, “Watership Down” and whatever else. We are saying, “Think very carefully”. If it is one of those circumstances where this is causing harm—they exist; we cannot pretend that they do not—it should be removed. However, the default should not be to remove everything on this list; that is the point I am really trying to make.

[Baroness Stowell of Beeston (Con)]

My Lords, our debate on this group is on the topic of priority harms to children. It is not one that I have engaged in so I tread carefully. One reason why I have not engaged in this debate is because I have left it to people who know far more about it than I do; I have concentrated on other parts of the Bill.

In the context of this debate, one thing has come up on which I feel moved to make a short contribution: misinformation and disinformation content. There was an exchange between my noble friend Lady Harding and the noble Baroness, Lady Fox, on this issue. Because I have not engaged on the topic of priority harms, I genuinely do not have a position on what should and should not be featured. I would not want anybody to take what I say as support for or opposition to any of these amendments. However, it is important for us to acknowledge that, as much as misinformation and disinformation are critical issues—particularly for children and young people because, as the right reverend Prelate said, the truth matters—we cannot, in my view, ignore the fact that misinformation and disinformation have become quite political concepts. They get used in a way where people often define things that they do not agree with as misinformation—that is, opinions are becoming categorised as misinformation.

We are now putting this in legislation and it is having an impact on content, so it is important, too, that we do not just dismiss that kind of concern as not relevant because it is real. That is all I wanted to say.

Online Safety Bill

Debate between Lord Allan of Hallam and Baroness Stowell of Beeston

Committee stage
Tuesday 23rd May 2023 Lords Chamber

[Lord Allan of Hallam (LD)]

My Lords, I support Amendment 227 in particular. I am pleased to contribute, as someone who gave evidence to the Leveson inquiry, explaining why social media should not be in scope for any new press regulation scheme. It is entertaining for me now to come through the looking glass and listen to the noble Lords, Lord Black of Brentwood and Lord Faulks, in particular making the kinds of argument I made then, as we discuss whether the press should be in scope for a new social media regulatory scheme.

These amendments are a helpful way to test how the Government expect their decision to afford certain privileges for online activity by journalists and news publishers to work. That is what the regime does, in effect, with the rationale, which was explained to us, that this is why certain bodies can be privileged when using user-to-user services and search engines in a way that, if they were not afforded that status, they would not be given those privileges. Again, it is noteworthy that there has often been criticism of social media precisely for giving special treatment to some users, including in stories in some of the press that we are talking about, and here we are creating not just a state sanction but a state-ordered two-tier system that all the social media companies will now have to adopt. That creates some interesting questions in itself.

I want to press the Minister primarily on definitions. It is certainly my experience that definitions of who is a journalist or a news media publisher are challenging and can be highly political. There have been several pressure points, pushing social media companies to try to define journalists and news publishers for themselves, outside of any regulatory scheme—notably following the disputes about misinformation and disinformation in the United States. The European Union also has a code of practice on misinformation and disinformation. Every time someone approaches this subject, they ask social media companies to try to distinguish journalists and news media from other publishers. So these efforts have been going on for some time, and many of them have run into disputes because there is no consistent agreement about who should be in or outside those regimes. This is one of those problems that seems clear and obvious when you stand back from it, but the more that you zoom in, the more complex and messy it becomes. We all say, “Oh yes, journalists and news publishers—that is fine”, and we write that in the legislation, but, in practice, it will be really hard when people have to make decisions about individuals.

Some news organisations are certainly highly problematic. Most terrorist organisations have news outlets and news agencies. They do not advertise themselves as such but, if you work in a social media platform, you have to learn to distinguish them. They are often presented entirely legitimately, and some of the information that you use to understand why they are problematic may be private, which creates all sorts of problems. Arguably, this is the Russia Today situation: it presented itself as legitimate and was registered with Ofcom for a period of time; we accepted that it was a legitimate news publisher, but we changed our view because we regard the Russian Government as a terrorist regime, in some senses. That is happening all of the time, with all sorts of bodies across the world that have created these news organisations. In the Middle East in particular, you have to be extraordinarily careful—you think that something is a news organisation but you then find that it has a Hezbollah connection and, there you go, you have to try to get rid of it. News organisations tied to extremist organisations is one area that is problematic, and my noble friend referred to it already.

There is also an issue with our domestic media environment. Certainly, most people would regard Gary Lineker as a journalist who works for a recognised news publisher—the BBC—but not everyone will agree with that definition. Equally, most people regard the gentleman who calls himself Tommy Robinson as not being a journalist; however much he protests that he is in front of judges and others, and however much support he has from recognised news publishers in the United States, most people would say that he is not a journalist. The community of people who agree that Gary Lineker is not a journalist and that of people who think that Tommy Robinson is not a journalist do not overlap much, but I make the point that there is continually this contention about individuals, and people have views about who should be in or out of any category that we create.

This is extraordinarily difficult, as in the Bill we are tasking online services with a very hard job. In a few lines of it, we say: “Create these special privileges for these people we call journalists and news publishers”. That is going to be really difficult for them to do in practice and they are going to make mistakes, either exclusionary or inclusionary. We are giving Ofcom an incredibly difficult role, which is why this debate is important, because it is going to have to adjudicate when that journalist or news publisher says to Ofcom: “I think this online platform is breaching the Online Safety Act because of the way it treated me”. Ofcom is going to have to take a view about whether that organisation or individual is legitimate. Given the individuals I named, you can bet your bottom dollar that someone is going to go to Ofcom and say, “I don’t think that Gary Lineker or the BBC are legitimate”. That one should be quite easy; others across the spectrum will be much more difficult for it to deal with.

That is the primary logic underlying Amendment 227: we have known unknowns. There will be unanticipated effects of this legislation and, until it is in place and those decisions are being made, we do not know how it will work. Frankly, we do not know whether, as a result of legal trickery and regulatory decisions, we have inadvertently created a loophole where some people will be able to go and win court cases by claiming protections that we did not intend them to have. I disagree with the noble Lord, Lord Black: I do not think Amendment 227 undermines press freedom in any sense at all. All it does is to say: “We have created an Online Safety Bill. We expect it to enhance people’s safety and within it we have some known unknowns. We do not know how this exemption is going to work. Why not ask Ofcom to see if any of those unintended consequences happen?”

I know that we are labouring our way through the Online Safety Bill version 1, so we do not want to think about an online safety Bill version 2, but there will at some point have to be a revision. It is entirely rational and sensible that, having put this meaningful exemption in there—it has been defended, so I am sure that the Government will not want to give it up—the least we can do is to take a long, hard look, without interfering with press freedom, and get Ofcom to ask, “Did we see those unintended consequences? Do we need to look at the definitions again?”

[Baroness Stowell of Beeston (Con)]

My Lords, the noble Lord, Lord Allan, has clearly and comprehensively painted a picture of the complex world in which we now live, and I do not think that anybody can disagree with that or deny it. We are in a world which is going to keep evolving; we have talked in lots of other contexts about the pace of change, and so on. However, in recognising all that, what the noble Lord has just described—the need for constant evaluation of whether this regime is working effectively—is a job for Parliament, not for Ofcom. That is where I come back to in starting my response to this group of amendments.

Briefly—in order that we can get to the wind-ups and conclude business for the day—ensuring that recognised news publishers and organisations are not subject to Ofcom or any form of state regulation is a vital principle. I am pleased that the Government have included the safeguards which they have in the legislation, while also making it much harder for the tech platforms to restrict the freedom of recognised news publishers and users’ access to them.

I reiterate that I understand that this is becoming increasingly complicated, but these are important principles. We have to start in the world that we currently understand and know, ensure that we protect those publications which we recognise as trusted news providers now, and do not give way on those principles. As my noble friend Lord Black said, regarding debates about Section 40 of the Crime and Courts Act, there will be an opportunity to re-evaluate that in due course when we come to the media Bill. For what it is worth, my personal view is that I support the Government’s intention to remove it.

Online Safety Bill

Debate between Lord Allan of Hallam and Baroness Stowell of Beeston

Committee stage
Wednesday 19th April 2023 Lords Chamber

[Lord Allan of Hallam (LD)]

My Lords, I have had a helpful reminder about declarations of interest. I once worked for Facebook; I divested myself of any financial interest back in 2020, but of course a person out there may think that what I say today is influenced by the fact that I previously took the Facebook shilling. I want that to be on record as we debate the Bill.

[Baroness Stowell of Beeston (Con)]

My Lords, I have not engaged with this amendment in any particular detail—until the last 24 hours, in fact. I thought that I would come to listen to the debate today and see if there was anything that I could usefully contribute. I have been interested in the different points that have been raised so far. I find myself agreeing with some points that are perhaps in tension or conflict with each other. I emphasise from the start, though, my complete respect for the Joint Committee and the work that it did in the pre-legislative scrutiny of the Bill. I cannot compare my knowledge and wisdom on the Bill with those who, as has already been said, have spent so much intensive time thinking about it in the way that they did at that stage.

Like my noble friend Lady Harding, I always have a desire for clarity of purpose. It is critical for the success of any organisation, or anything that we are trying to do. As a point of principle, I like the idea of setting out at the start of this Bill its purpose. When I looked through the Bill again over the last couple of weeks in preparation for Committee, it was striking just how complicated and disjointed a piece of work it is and so very difficult to follow.

There are many reasons why I am sympathetic towards the amendment. I can see why bringing together at the beginning of the Bill what are currently described as “Purposes” might be for it to meet its overall aims. But that brings me to some of the points that the noble Baroness, Lady Fox, has just made. The Joint Committee’s report recommends that the objectives of the Bill

“should be that Ofcom should aim to improve online safety for UK citizens by ensuring that service providers”—

it then set out objectives aimed at Ofcom rather than them actually being the purposes of the Bill.

I was also struck by what the noble Lord, Lord Allen, said about what we are looking for. Are we looking for regulation of the type that we would expect of airlines, or of the kind we would expect from the car industry? If we are still asking that question, that is very worrying. I think we are looking for something akin to the car industry model as opposed to the airline model. I would be very grateful if my noble friend the Minister was at least able to give us some assurance on that point.

If I were to set out a purpose of the Bill at the beginning of the document, I would limit myself to what is currently in proposed new subsection (1)(g), which is

“to secure that regulated internet services operate with transparency and accountability in respect of online safety”.

That is all I would say, because that, to me, is what this Bill is trying to do.

The other thing that struck me when I looked at this—I know that there has been an approach to this legislation that sought to adopt regulation that applies to the broadcasting world—was the thought, “Somebody’s looked at the BBC charter and thought, well, they’ve got purposes and we might adopt a similar sort of approach here.” The BBC charter and the purposes set out in it are important and give structure to the way the BBC operates, but they do not give the kind of clarity of purpose that my noble friend Lady Harding is seeking—which I too very much support and want to see—because there is almost too much there. That is my view on what the place to start would be when setting out a very simple statement of purpose for this Bill.