Data Protection and Digital Information Bill

Lord Black of Brentwood Excerpts

Committee stage
Monday 25th March 2024 Grand Committee

[Baroness Harding of Winscombe (Con)]

My Lords, in moving Amendment 27 in my name, I will also express my support for Amendments 28 to 34. I thank my noble friend Lord Black, the noble Baroness, Lady Jones, and the noble Lord, Lord Clement-Jones, for supporting and signing a number of these amendments.

This is quite a specific issue compared to the matters of high policy that we have been debating this afternoon. There is a specific threat to the continuing ability of companies to use the open electoral register for marketing purposes without undue burdens. Some 37% of registered voters choose not to opt out of their data being used for direct marketing via the open electoral register, so quite a significant proportion of the population openly agrees that that data can be used for direct marketing. It is an essential resource for accurate postal addresses and for organisations such as CACI—I suspect that a number of us speaking have been briefed by it; I thank it for its briefing—and it has been used for more than 40 years without detriment to consumers and with citizens’ full knowledge. The very fact that 63% of people on the electoral register have opted out tells you that this is a conscious choice that people have knowingly made.

Why is it in doubt? A recent First-tier Tribunal ruling in a legal case stated, by implication, that every company using open electoral register data must, by 20 May 2024, notify individuals at their postal addresses whenever their data on the electoral register is used and states that cost cannot be considered “dispro-portionate effort”. That means that organisations that are using the electoral roll would need to contact 24.2 million individuals between now and the middle of May, making it completely practically and financially unviable to use the electoral register at scale.

This group of amendments to Clause 11 aims to address this issue. I fully acknowledge that we have tried to hit the target with a number of shots in this group, and I encourage the Minister, first, to acknowledge that he recognises that this is a real problem that the Bill should be able to address and, secondly, if the wording in individual amendments is not effective or has some unintended consequences that we have missed, I encourage him to respond appropriately.

To be clear, the amendments provide legal certainty about the use of the open electoral register without compromising on any aspect of the data privacy of UK citizens or risking data adequacy. The amendments specify that companies are exempt from the requirement to provide individuals with information in cases where their personal data has not been obtained from them directly if that data was obtained from the open electoral register. They provide further clarification of what constitutes “disproportionate effort” under new paragraph (e) in Article 14(5) of the GDPR. These additional criteria include the effort and cost of compliance, the damage and distress caused to the data subjects and the reasonable expectation of the data subjects, which the percentage of people not opting out shows.

Why is this a problem that we need to fix? First, if we do not fix this, we might create in the physical world the very problem that parts of the Bill are trying to address in the digital world: the bombarding of people with lots of information that they do not want to receive, lots of letters telling us that a company is using the electoral roll that we gave it permission to use in the first place. It will also inadvertently give more power to social media companies for targeting because it will make physical direct marketing much harder to target, so SMEs will be forced into a pretty oligopolistic market for social media targeting. Finally, it will mean that we lose jobs and reduce productivity at a time when we are trying to do the opposite.

This is quite a simple issue and there is cross-party support. It is not an issue of great philosophical import, but for the companies in this space, it is very real, and for the people working in this industry, it is about their jobs. Inch by inch, we need to look at things that improve productivity rather than actively destroy it, even when people have agreed to it. With that, I note the hour and I beg to move.

[Lord Black of Brentwood (Con)]

My Lords, I support Amendments 27 to 34, tabled variously by my noble friend Lady Harding, and the noble Lord, Lord Clement-Jones, to which I have added my name. As this is the first time I have spoken in Committee, I declare my interests as deputy chairman of the Telegraph Media Group and president of the Institute of Promotional Marketing and note my other declarations in the register.

The direct marketing industry is right at the heart of the data-driven economy, which is crucial not just to the future of the media and communications industries but to the whole basis of the creative economy, which will power economic growth into the future. The industry has quite rightly welcomed the Bill, which provides a long-term framework for economic growth as well as protecting customers.

However, there is one area of great significance, as my noble friend Lady Harding has just eloquently set out, on which this Bill needs to provide clarity and certainty going forward, namely, the use of the open electoral register. That register is an essential resource for a huge number of businesses and brands, as well as many public services, as they try to build new audiences. As we have heard, it is now in doubt because of a recent legal ruling that could, as my noble friend said, lead to people being bombarded with letters telling them that their data on the OER has been used. That is wholly disproportionate and is not in the interests of the marketing and communications industry or customers.

These sensible amendments would simply confirm the status quo that has worked well for so long. They address the issue by providing legal certainty around the use of the OER. I believe they do so in a proportionate manner that does not in any way compromise any aspect of the data privacy of UK citizens. I urge the Minister carefully to consider these amendments. As my noble friend said, there are considerable consequences of not acting for the creative economy, jobs in direct marketing, consumers, the environment and small businesses.

[Lord Clement-Jones (LD)]

My Lords, I am extremely grateful to the noble Baroness, Lady Harding, and the noble Lord, Lord Black, for doing all the heavy lifting on these amendments. I of course support them having put forward my own amendments. It is just the luck of the draw that the noble Baroness, Lady Harding, put forward her amendment along with all the others. I have very little to say in this case, and just echo what the noble Lord, Lord Black, said about the fact that the open electoral register has played an important part in the direct marketing, data-driven economy, as it is described. It is particularly interesting that he mentioned the creative industries as well.

The First-tier Tribunal precedent could impact on other public sources of data, including the register of companies, the register of judgments, orders and fines, the land register and the food standards agency register. It could have quite far-reaching implications unless we manage to resolve the issue. There is a very tight timescale. The First-tier Tribunal’s ruling means that companies must notify those on the electoral register by 20 May or be at risk of breaching the law. This is really the best route for trying to resolve the issue. Secondly, the First-tier Tribunal’s ruling states that costs cannot be considered as disproportionate effort. That is why these amendments explicitly refer to that. This is no trivial matter. It is a serious area that needs curing by this Bill, which is a good opportunity to do so.

I shall speak briefly to Clause 11 as a whole standing part. That may seem a bit paradoxical, but it is designed to address issues arising in Article 13, not Article 14. Article 13 of the UK GDPR requires controllers, where they intend to process data that was collected directly from data subjects—as opposed to Article 14 obligations, which apply to personal data not obtained from the data subject—for a new purpose, to inform data subjects of various matters to the extent necessary,

“to ensure fair and transparent processing”.

Clause 11(1) removes this obligation for certain purposes where it would require disproportionate effort. The obligation is already qualified to what is necessary to make processing fair and transparent, the fundamental requirements of the GDPR. If, in these circumstances, processing cannot be made fair and transparent without disproportionate effort, then it should not take place. Clause 11(1) would sidestep the requirement and allow unfair, untransparent processing to go ahead for personal data that the data controllers had themselves collected. Perhaps I should have tabled a rather more targeted amendment, but I hope that noble Lords get the point of the difference between this in terms of Article 13 and Article 14.

Digital Markets, Competition and Consumers Bill

Lord Black of Brentwood Excerpts

Committee stage
Wednesday 24th January 2024 Grand Committee

[Lord Holmes of Richmond (Con)]

My Lords, it is a pleasure to take part in day two of Committee on the DMCC Bill. Again, I declare my interest as an adviser to Boston Limited.

It is a pleasure to follow the introduction from my noble friend Lord Faulks. I think is highly appropriate that we discuss proportionality. I have a number of amendments in my name in this group: Amendments 33, 52 and 220, and then the rather beautifully double Nelsonian, Amendment 222. Essentially, a considerable amount of work needs to be done before we can have proportionality going through the Bill in its current form. My amendments suggest not only addressing that but looking at counter- vailing benefits exemptions and financial penalties.

Agreeing with pretty much everything that has been said, and with the tone and spirit of all the amendments that have been introduced thus far, I will limit my remarks to Amendment 222. It suggests that regulations bringing into force Clauses 19, 21, 46 and 86

“may not be made until the Secretary of State has published guidance”

going into the detail of how all this will operate in reality.

Proportionality is obviously a key element, as has already been discussed, this is just as important, as we will come on to in the next group. My Amendment 222 straddles the groups a bit, under the vagaries of grouping amendments, but it is nevertheless all the better for it.

I look forward to hearing my noble friend the Minister’s response on proportionality, countervailing benefits exemptions and financial penalties, and on the need for clear, detailed guidance to come from the Secretary of State before any moves are made in any and all of these areas.

[Lord Black of Brentwood (Con)]

My Lords, I am afraid I am going to play the role of Little Sir Echo here. I hope that the unanimity expressed so far will send a strong message to my noble friend the Minister. I support Amendment 16 in the name of the noble Lord, Lord Faulks, to which I have added my name, and Amendments 17, 53 and 54. I note my interests as declared at the start of Committee.

As I made clear in my remarks on Second Reading, we must, throughout the consideration of the Bill, steadfastly avoid importing anything into the CMA and DMU procedures that would allow the platforms to deploy delaying tactics and tie up the regulators in endless legal knots. Long legal wrangling will destroy the very essence of the Bill, and it is not mere speculation to suggest that this might happen. As we have seen elsewhere in the world, and indeed in publishers’ own existing dealings with the platforms, we do not need to gaze into a crystal ball; we can, as the noble Lord, Lord Tyrie, put it the other day, read the book.

In that light, as we have heard consistently this afternoon, I fear that the government amendments made in the other place, requiring the conduct requirements and PCIs to be proportionate rather than appropriate, do just that. They impose significant restrictions on the work of the CMA and, as an extremely helpful briefing—which I think all Members have had—from Which? put it, produce “a legal quagmire” that would allow the unaccountable platforms

“with their vast legal budgets … to push back against each and every decision the regulator takes”.

It is simply counterintuitive to the design of the flexible and participatory framework the legislation portends. As my noble friend Lady Stowell said, it certainly makes me very nervous.

The key point is that introducing the concept of proportionality is, frankly, totally otiose, as the noble Lord, Lord Faulks, put it so well, as proportionality is already tested by judicial review—something the CMA itself has already reiterated. The courts, in this novel area of legislation, will rely on Parliament clearly to state its intentions. Introducing the concept of proportionality not only is unnecessary but in fact muddies the waters and creates confusion that will be mercilessly used by the platforms. It certainly does not produce clarity. The Government really must think again.

[Lord Tyrie (Non-Afl)]

My Lords, I do not know whether I am the sole dissenting voice—I do not think I am—but I want to make one preliminary point. I never thought I would make a point in defence of lawyers, but not all legal challenge or scrutiny will necessarily be wrong as this Bill proceeds or as the CMA takes its decisions. It is extremely important that we bear in mind, as we will come on to later on in the Bill, that we need to have a sense of balance about all this, so that we do not allow quite reasonable discontent with some of the shocking practices we have seen from platforms to lead us to a place that we might subsequently regret and which could lead to injustices or damage to British interests through loss of innovation or inward investment.

I listened very carefully to what the noble Lord, Lord Faulks, said. It seemed to boil down to very few things. Are convention rights engaged? They probably are, or if they are not then they will be. Even if they are not, the courts will find a way of getting them in eventually. If they are, what have the Government added? That is why I think I might be with the amenders here. I think very little, if anything at all, has been added. Was this a piece of window dressing, supplied by the Government to satisfy the intense lobbying that has taken place, particularly of No. 10? It had a whiff of that about it for me when I first saw it—I see one or two nods of assent. If it is, I am particularly wary of this change, which is what leads me to think that the amenders might be right. If it is more than this—if something very substantive has been added—then I think we would all like to hear from the Minister what exactly it is that, as a result of the adding of “proportionality”, will be considered for legal scrutiny when this Bill is on the statute book.

--- Later in debate ---

[Lord Holmes of Richmond (Con)]

May I build on that before my noble friend the Minister responds? What precisely was inappropriate about “appropriate”?

[Lord Black of Brentwood (Con)]

My Lords, this is not just to prevent the Minister getting up again; it is relevant to both points that have just been made. A number of noble Lords asked whether this huge volte-face by the Government between the publication of the Bill and the amendments made very late in the other place came about as a result of pressure from the platforms. Could he tell us whether the platforms lobbied for this change and whether he discussed it with them?

[Lord Bassam of Brighton (Lab)]

My Lords, if I might help the Minister, this legislation has been knocking around for some time now, so what was it that provided that blinding flash of official or ministerial inspiration to bring this amendment about “proportionate” so late in the day in the other place that it was tabled right at the end of the Commons process? What was it that was so compelling as to make that dramatic change?

--- Later in debate ---

This is a huge group, covering a whole range of things, and I hope I have done justice to my noble friend who was not here.

[Lord Black of Brentwood (Con)]

We are all delighted that he is in fact here. I support Amendment 48 in the name of the noble Baroness, Lady Jones of Whitchurch, to which I have added my name.

The final offer mechanism is a crucial part of the Bill; it is the engine that makes it all work. In an ideal world, of course, it ought never to be deployed because the platforms would see the light of day and enter into sensible agreements with publishers. It should be a last resort only where common sense has failed. But this last resort is—like a deterrent—credible as an incentive to negotiate only if it can be deployed throughout the process of negotiation, not at some far distant point in the future. If it is something so far off that the platforms and publishers believe it will never in reality be reached, publishers will be compelled, out of commercial necessity, to accept suboptimal deals from SMS firms, in some cases—I think in particular of the local and regional press—simply to survive. As the Bill is currently drafted, that is exactly what might happen. The noble Viscount, Lord Colville, talked passionately about that aspect.

SMS firms that have time and money on their side—in the way that hard-pressed publishers do not—could very easily hold out until the very last minute of negotiations before the final offer mechanism is deployed. That ability continually to delay things simply reinforces the market power of the SMS firms and does nothing to redress the balance, which is what the Bill is supposed to be all about.

Such an extended nature of the enforcement process means that it could take years for the FOM to be reached if SMS firms are not acting in good faith—and, let us face it, that will happen. We need a system much closer to the Australian news media bargaining code, whereby strict timelines mean that every step combined—bargaining, mediation and final offer arbitration—would take just over six months. Of course, neither publisher nor platform wishes to end up in FOM unnecessarily. This amendment from the noble Baroness would make the FOM available at an earlier stage only if the CMA judged that its standard enforcement mechanisms would not be effective; for example, if an SMS firm had simply refused to enter negotiations. However, if the CMA judges that its standard enforcement mechanisms under Part 1 would be sufficient to ensure that deals are made swiftly, it could proceed with other remedies. This ensures that the FOM is a last resort but also a credible alternative.

Many publishers, particularly local and regional ones, as I have mentioned, are under the most severe commercial pressure. They simply cannot afford to wait to see the fruits of this Bill. Many more titles will have closed and some publishers may have gone under. In the interests of media plurality and local democracy, we need to get this right. As it stands, the Bill wills the ends but not the means.

Digital Markets, Competition and Consumers Bill

Lord Black of Brentwood Excerpts

Committee stage
Monday 22nd January 2024 Grand Committee

[Lord Black of Brentwood (Con)]

My Lords, I support Amendment 25; but for the glitch that others have experienced, I would have put my name to it. I shall also speak to Amendments 26 and 27. As this is the first time I have spoken in Committee, I must declare my interest as deputy chairman of the Telegraph Media Group and note my other interests.

In short order, the noble Lord, Lord Clement-Jones, got it right: in many ways, these anti-leveraging provisions, the whack-a-mole provisions, go to the heart of the Bill, because if we do not get this right then it will fail. As my noble friend Lord Vaizey said, at the moment Clause 20 is far too narrow and will give the SMS firms remarkable opportunities to avoid any form of compliance. In fact, it runs a coach and horses through the Bill, which is why we need to rectify it. The example of Apple that he gave could be replicated across all sorts of SMS platforms, which is why we absolutely need to close the loophole. My noble friend’s amendment is probably the cleanest and easiest way to do that, but I would also support Amendments 26 and 27, tabled by the noble Baroness, Lady Jones, which would effectively address the same concerns. I look forward to hearing from the Minister on these points, which are crucial to the future of the Bill.

[Lord Vaizey of Didcot (Con)]

On a point of order, I am incredibly embarrassed that I fail to declare my interests each time I speak because I am so nervous in this Committee. I declare my interests, particularly as a presenter of Times Radio, which links me to News UK, and as an adviser to a mobile games company, Pixel United.

King’s Speech

Lord Black of Brentwood Excerpts

Tuesday 14th November 2023 Lords Chamber

[Lord Black of Brentwood (Con)]

My Lords, it is an immense pleasure to follow my noble friend Lord Ranger and congratulate him on a superb and memorable maiden speech, which was elegant, captivating and moving in equal measure. He has an exceptional track record of distinguished service at the highest levels of industry, government and the public sector, and a specialist knowledge of transport, digital and technological issues, which will be of inestimable value in this House. His many achievements—the delivery of the Oyster card, as described, establishing the Digital London office, helping prepare for the hugely successful 2012 Olympics and championing Crossrail—speak volumes in themselves. He has also been closely involved with key environmental issues as a member of the C40 Cities Climate Leadership Group, sitting on the board of Bristol 2015 European Green Capital and campaigning on issues such as cleaner air and electric vehicles. With such a track record of accomplishments, many at an international level, and such a strong sense of public service, he will bring real insight and wisdom to our deliberations.

His powerful speech—the harbinger, I have no doubt, of many more to come—gave us an inspirational insight into his family story. I was of course delighted to hear that his maternal grandfather founded the first Indian newspaper in the UK, which is a shining achievement. His journey to becoming the first British-born, turban-wearing Sikh in this House is a remarkable one and his experiences will enrich our deliberations beyond measure. My noble friend is exceptionally welcome. We look forward to hearing from him in years to come on public policy issues of huge importance to everyone in this country—not least digital transformation and artificial intelligence—with the fascinating perspectives that he will bring to our work.

I want to talk about aspects of the gracious Speech relating to the media. I declare my interest as deputy chairman of the Telegraph Media Group, a member of the News Media Association and director of the Regulatory Funding Company, and note my other interests in the register.

First, I want to pay my own tribute to our late friend and colleague the noble and learned Lord, Lord Judge. I had the pleasure of working with him on an issue he held most dear, the freedom of the press, for which he was a consistently passionate and eloquent champion. His commitment to the principles of an independent, self-regulating media was as strong as tungsten, and his calm, wise voice will be sorely missed in our debates.

I welcome the Government’s commitment to bring forward

“legislation ... to support the creative industries and protect public interest journalism”,

which has never been under such threat, and I applaud their commitment to press freedom. Central to this is the Media Bill. It will ensure that broadcasters such as ITV can continue to invest in their brilliant British content, by guaranteeing prominence on digital platforms for PSBs. It will take forward the principles established by the Online Safety Act by levelling the deeply unfair playing field between the platforms and the traditional media and bringing streaming regulation into line with broadcast TV.

At this point, I am going to disappoint the noble Lord, Lord McNally, because, for me, the most crucial part of the Bill is the repeal of Section 40 of the Crime and Courts Act 2013—one of the most pernicious and draconian pieces of legislation ever put on to the statute book. It sought, in effect, to put a gun to the heads of the free and independent media by attempting to force them into a system of state-backed regulation or saddle them with costs, whether or not a case was won in court, that would have killed stone-dead investigative journalism and bankrupt most of the regional press and a large part of the national media. Fortunately, common sense has since prevailed, and Section 40 has never been put into effect. But its baleful, chilling presence remains—one reason that we have sunk down the international press freedom tables—and it must go.

Perhaps we can then move on to dismantle the royal charter on state regulation of the press, another otiose part of the detritus of the Leveson inquiry, along with the Press Recognition Panel, which shamefully continues to receive commitments of hundreds of thousands of pounds from the taxpayer, despite its mission to become self-funding.

I applaud too the Digital Markets, Competition and Consumers Bill. This heavily consulted-on legislation will give the Digital Markets Unit within the CMA the teeth it needs to level the playing field between news publishers and the unaccountable giant tech platforms, and will pave the way for a sustainable future for quality journalism across the UK. We must scrutinise the Bill carefully to ensure that there are no unintended consequences of the sensible provisions to crack down on unscrupulous operators deceiving customers with malicious subscription traps in a way that impacts on responsible news publishers who are building new business models on the back of subscription revenues. We must also ensure that the carefully constructed appeals mechanisms are retained intact. Chief among these is the robust judicial review appeals standard, which is an essential part of the provisions redressing the imbalance in market power. To amend it as a result of aggressive lobbying by the giant platforms would undermine the whole regime. I associate myself absolutely with what the noble Lord, Lord Clement-Jones, and my noble friend Lady Stowell had to say on the subject —she hit the nail on the head.

I hope that both pieces of legislation will move swiftly though this House, with as much cross-party support as possible, so that the Government’s stated aim to protect journalism can be fulfilled as soon as possible. Other legislation—including the Automated Vehicles Bill, which could pose a threat to the future of public notices in printed local newspapers—will need careful scrutiny to ensure that it does not pull in the opposite direction to this vital legislation.

As the Government are committed to ensuring a sustainable future for a free press, then one issue that they must tackle—not foreshadowed in the gracious Speech—is the burgeoning imperial ambition of the BBC. Here, I am afraid that I will again upset the noble Lord, Lord McNally. I am going to talk just about its local activities, because I recognise that it is a national treasure and I absolutely support it. However, an absolutely vital part of the rich tapestry of the British media is the local and regional press, yet it is under commercial threat as never before as a result of the BBC’s Across the UK plan. This will inexorably lead to an increase in its online news provision in areas already well-served by independent news publishers, which means the inevitable loss of jobs for journalists in the local press.

The BBC’s royal charter requires the BBC to

“avoid adverse impacts on competition”

and causing harm to commercial providers. But that is precisely what these plans do. The BBC, which I absolutely support, is using the might of its enormous taxpayer funding aggressively to draw local audiences away from commercial providers and deprive them of readers and the revenue needed to continue investing in independent journalism, and does so at the expense of much-loved local radio services, to which it is taking the axe. It is inexplicable that, at a time when the BBC claims to be facing financial pressures—I am sure that it is—it chooses to invest heavily in news provision that is already well-served by the commercial sector.

If the BBC is allowed by the Government—the ultimate arbiter of the charter—and Ofcom to continue down this dangerous path, it will end up eradicating plurality in the local news market and leave local people only one source of news about their area: the corporation’s. As the clock ticks towards the mid-term review of the charter, I hope my noble friend will take note of the strong views of local publishers in particular and act to stop the BBC destroying independent local media.

Our free press is under the most terrible commercial strain. Much in the gracious Speech will help the situation but there is a great deal more to do.