Online Safety Bill

Lord Clement-Jones Excerpts

Report stage
Thursday 6th July 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I will not engage with the amendments of the noble Lord, Lord Moylan, since mine are probably the diametric opposite of what he has been saying.

I say, first, on behalf of the noble Baroness, Lady Finlay, that she regrets very much not being able to be here. Amendment 204 in her name is very much a Samaritans amendment. The Samaritans have encouraged her to put it forward and encourage us to support it. It is clear that the Minister has got his retaliation in first and taken the wind out of all our sails right at the beginning. Nevertheless, that does not mean that we cannot come back at the Minister and ask for further and better particulars of what he has to say.

Clearly the Government’s decision to bring in the new offence of encouraging or assisting self-harm is welcome. However—certainly in the view of the Samaritans—this will only bring into the remit of the Bill content that encourages serious self-harm, which must reach the high threshold amounting to grievous bodily harm. Their view, therefore, is that much harmful content will still be left untouched and available to criminals online. This could include information, depictions, instructions and advice on methods of self-harm and suicide. It would also include content that portrays self-harm and suicide as positive or desirable, and graphic descriptions or depictions of self-harm and suicide.

Perhaps the Minister could redouble his efforts to assure us as to how the Bill will take a comprehensive approach to placing duties on all platforms to reduce all dangerous suicide and self-harm content, such as detailed instructions on how people can harm themselves, for adults as well as children. This should also be in respect of smaller sites; it is not just the larger category 1 sites that will need to proactively remove priority illegal content, whatever the level of detail in their risk assessment. I hope I have done my duty by the noble Baroness, Lady Finlay, who very much regrets that she was not able to be here.

My own Amendments 55, 59, 64 and 181 are about changes in social media. The Bill really began its life at the high point of the phase where services were free to the user and paid for by adverts. The noble Lord talked about this being a Twitter Bill. Well, to some extent we are influenced by what Twitter has been doing over the last 12 months: it has begun to charge for user-verification services and some features, and other services are adopting versions of what you might call this premium model. So there is a real concern that Clause 12 might not be as comprehensive as the Minister seems to be asserting. I assume that it is covered by the “proportionate” wording in Clause 12, and therefore it would not be proportionate—to put it the other way round—if they charged for this service. I would very much like the Minister to give the detail of that, so I am not going to cover the rest of the points that I would otherwise have made.

The Minister said that a blanket approach would not be appropriate for user-empowerment control features. The thought that people have had is that a platform might choose to have a big red on/off button that would try to cover all the types of content that could be subject to this kind of user-empowerment tool. I do not think the contents of Clause 12 are as clear as the Minister perhaps considers they could be, but they go with the grain of the new government amendments. I should have said right at the beginning—although many of us regret the deletion of “legal but harmful” from the original draft Bill—that the kind of assessment that is going to be made is a step in the right direction and demonstrates that the Minister was definitely listening in Committee. However, if a blanket approach of this kind is taken, that would not be in the spirit of where these user-empowerment tools are meant to go. I welcome what the Minister had to say, but again I would like the specifics of where he thinks the wording is helpful in making sure that we have a much more granular form of user-empowerment control feature when this eventually comes into operation.

Finally, I return to user verification. This is very much in the footsteps of the Joint Committee. The noble Baroness, Lady Merron, spoke very well in Committee to what was then Amendment 41, which was in the name of the noble Lord, Lord Stevenson. It would required category 1 services to make visible to users whether another user was verified or non-verified.

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I hope all that goes some way towards reassuring the noble Baroness, Lady Fox, that freedom of expression is baked into all these amendments. Many of the questions she raises come down to the choice of users. We are not forcing people by having a default on or off. We are encouraging all users to make a decision about what material they see as adults on the internet within the law. If, like her and like me, they want to continue to see that, they should continue to keep their settings broad and know that they will encounter things with which they may disagree or that may offend them.

[Lord Clement-Jones (LD)]

My Lords, does the Minister have any more to say on identity verification?

[Lord Parkinson of Whitley Bay (Con)]

I am being encouraged to be brief so, if I may, I will write to the noble Lord on that point.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Thursday 22nd June 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, I, too, support Amendments 233 and 234, and Amendment 233A, from the noble Lord, Lord Allan. As the noble Baroness, Lady Kidron, said, it has been made clear in the past 10 days of Committee that there is a role for every part of society to play to make sure that we see the benefits of the digital world but also mitigate the potential harms. The role that researchers and academics can play in helping us understand how the digital world operates is critical—and that is going to get ever more so as we enter a world of large language models and AI. Access to data in order to understand how digital systems and processes work will become even more important—next week, not just in 10 years’ time.

My noble friend Lord Bethell quite rightly pointed out the parallels with other regulators, such as the MHRA and the Bank of England. A number of people are now comparing the way in which the MHRA and other medical regulators regulate the development of drugs with how we ought to think about the emergence of regulation for AI. This is a very good read-across: we need to set the rules of the road for researchers and ensure, as the noble Baroness, Lady Kidron, said—nailing it, as usual—that we have the most transparent system possible, enabling people to conduct their research in the light, not in the grey zone.

[Lord Clement-Jones (LD)]

My Lords, as the noble Baroness, Lady Kidron, said, clearly, transparency is absolutely one of the crucial elements of the Bill. Indeed, it was another important aspect of the Joint Committee’s report. Like the noble Lord, Lord Knight—a fellow traveller on the committee—and many other noble Lords, I much prefer the reach of Amendments 233 and 234, tabled by the noble Lord, Lord Bethell, to Amendment 230, the lead amendment in this group.

We strongly support amendments that aim to introduce a duty for regulated platforms to enable access by approved independent researchers to information and data from regulated services, under certain conditions. Of course, there are arguments for speeding up the process under Clause 146, but this is really important because companies themselves currently decide who accesses data, how much of it and for what purposes. Only the companies can see the full picture, and the effect of this is that it has taken years to build a really solid case for this Online Safety Bill. Without a greater level of insight, enabling quality research and harm analysis, policy-making and regulatory innovation will not move forward.

I was very much taken by what the noble Baroness, Lady Harding, had to say about the future in terms of the speeding up of technological developments in AI, which inevitably will make the opening up of data, and research into it, of greater and greater importance. Of course, I also take extremely seriously my noble friend’s points about the need for data protection. We are very cognisant of the lessons of Cambridge Analytica, as he mentioned.

It is always worth reading the columns of the noble Lord, Lord Hague. He highlighted this issue last December, in the Times. He said:

“Social media companies should be required to make anonymised data available to third-party researchers to study the effect of their policies. Crucially, the algorithms that determine what you see—the news you are fed, the videos you are shown, the people you meet on a website—should not only be revealed to regulators but the choices made in crafting them should then be open to public scrutiny and debate”.


Those were very wise words. The status quo leaves transparency in the hands of big tech companies with a vested interest in opacity. The noble Lord, Lord Knight, mentioned Twitter announcing in February that it would cease allowing free research access to its application programming interface. It is on a whim that a billionaire owner can decide to deny access to researchers.

I much prefer Amendment 233, which would enable Ofcom to appoint an approved independent researcher. The Ofcom code of practice proposed in Amendment 234 would be issued for researchers and platforms, setting out the procedures for enabling access to data. I take the point made by the noble Baroness, Lady Fox, about who should be an independent accredited researcher, but I hope that that is exactly the kind of thing that a code of practice would deal with.

Just as a little contrast, Article 40 of the EU’s Digital Services Act gives access to data to a broad range of researchers—this has been mentioned previously—including civil society and non-profit organisations dedicated to public interest research. The DSA sets out in detail the framework for vetting and access procedures, creating an explicit role for new independent supervisory authorities. This is an example that we could easily follow.

The noble Lord, Lord Bethell, mentioned the whole question of skilled persons. Like him, I do not believe that this measure is adequate as a substitute for what is contained in Amendments 233 and 234. It will be a useful tool for Ofcom to access external expertise on a case-by-case basis but it will not provide for what might be described as a wider ecosystem of inspection and analysis.

The noble Lord also mentioned the fact that internet companies should not regard themselves as an exception. Independent scrutiny is a cornerstone of the pharmaceutical, car, oil, gas and finance industries. They are open to scrutiny from research; we should expect that for social media as well. Independent researchers are already given access in many other circumstances.

The case for these amendments has been made extremely well. I very much hope to see the Government, with the much more open approach that they are demonstrating today, accept the value of these amendments.

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[Lord Parkinson of Whitley Bay (Con)]

We are watching with interest what is happening in other jurisdictions. If I can furnish the Committee with any information in the area the noble Lord mentions, I will certainly follow up in writing.

[Lord Clement-Jones (LD)]

I have a question, in that case, in respect of the jurisdictions. Why should we have weaker powers for our regulator than others?

[Lord Parkinson of Whitley Bay (Con)]

I do not think that we do. We are doing things differently. Of course, Ofcom will be looking at all these matters in its report, and I am sure that Parliament will have an ongoing interest in them. As jurisdictions around the world continue to grapple with these issues, I am sure that your Lordships’ House and Parliament more broadly will want to take note of those developments.

[Lord Clement-Jones (LD)]

But surely, there is no backstop power. There is the review but there is no backstop which would come into effect on an Ofcom recommendation, is there?

[Lord Parkinson of Whitley Bay (Con)]

We will know once Ofcom has completed its research and examination of these complex issues; we would not want to pre-judge its conclusions.

[Lord Clement-Jones (LD)]

Again, that would require primary legislation.

[Lord Parkinson of Whitley Bay (Con)]

With that, if there are no further questions, I invite the noble Lord to withdraw his amendment.

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[Lord Clement-Jones (LD)]

My Lords, I congratulate the noble Baroness on having elucidated this arcane set of amendments. Unfortunately, though, it makes me deeply suspicious when I see what the amendments seem to do. I am not entirely clear about whether we are returning to some kind of merits-based appeal. If so, since the main litigators are going to be the social media companies, it will operate for their benefit to reopen every single thing that they possibly can on the basis of the original evidence that was taken into account by Ofcom, as opposed to doing it on a JR basis. It makes me feel quite uncomfortable if it is for their benefit, because I suspect it is not going to be for the ordinary user who has been disadvantaged by a social media company. I hope our brand spanking new independent complaints system—which the Minister will no doubt assure us is well on the way—will deal with that, but this strikes me as going a little too far.

[Baroness Kidron (CB)]

My Lords, I enter the fray with some trepidation. In a briefing, Carnegie, which we all love and respect, and which has been fantastic in the background in Committee days, shared some concerns. As I interpret its concerns, when Ofcom was created in 2003 its decisions could be appealed on their merits, as the noble Lord has just suggested, to the Competition Appeal Tribunal, and I believe that this was seen as a balancing measure against an untested regime. What followed was that the broad basis on which appeal was allowed led to Ofcom defending 10 appeals per year, which really frustrated its ability as a regulator to take timely decisions. It turned out that the appeals against Ofcom made up more than 80% of the workload of the Competition Appeal Tribunal, whose work was supposed to cover a whole gamut of matters. When there was a consultation in the fringes of the DEA, it was decided to restrict appeal to judicial review and appeal on process. I just want to make sure that we are not opening up a huge and unnecessary delaying tactic.

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Moved by

[Lord Clement-Jones]

264A: Clause 160, page 138, line 10, at end insert “including (but not necessarily) by making use of a stolen identity, credit card or national insurance number,”
Member’s explanatory statement
This amendment, together with the amendment to page 138, line 12 to which Lord Clement-Jones has added his name, seeks to probe the creation of a specific criminal offence of identity theft.

[Lord Clement-Jones (LD)]

My Lords, even by the standards of this Bill, this is a pretty diverse group of amendments. I am leading the line with an amendment that does not necessarily fit with much of the rest of the group, except for Amendment 266, which the noble Baroness, Lady Buscombe, will be speaking to. I look forward to hearing her speak.

This amendment is designed to probe the creation of a new offence of identity theft in Clause 160. As I argued in my evidence to the consultation on digital identity and attributes in 2021, a new offence of identity theft is required. Under the Fraud Act 2006, the Identity Documents Act 2010, the Forgery and Counterfeiting Act 1981, the Computer Misuse Act 1990 and the Data Protection Act 2018 there are currently the offences of fraud using a false identity, document theft, forging an identity, unauthorised computer access and data protection offences respectively, but no specific crime of digital identity theft.

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[Lord Parkinson of Whitley Bay (Con)]

Yes, we will ensure that, in looking at this in the context of Scots law, we have the opportunity to see what is being done there and that we are satisfied that all the scenarios are covered. In relation to the noble Baroness’s Amendment 268, the intentional encouragement or assistance of a criminal offence is already captured under Sections 44 to 46 of the Serious Crime Act 2007, so I hope that that satisfies her that that element is covered—but we will certainly look at all of this.

I turn to government Amendment 268AZA, which introduces the new serious self-harm offence, and Amendments 268AZB and 268AZC, tabled by the noble Lords, Lord Allan and Lord Clement-Jones. The Government recognise that there is a gap in the law in relation to the encouragement of non-fatal self-harm. The new offence will apply to anyone carrying out an act which intends to, and is capable of, encouraging or assisting another person seriously to self-harm by means of verbal or electronic communications, publications or correspondence.

I say to the noble Baroness, Lady Finlay of Llandaff, that the new clause inserted by Amendment 268AZA is clear that, when a person sends or publishes a communication that is an offence, it is also clear that, when a person forwards on another person’s communication, that will be an offence too. The new offence will capture only the most serious behaviour and avoid criminalising vulnerable people who share their experiences of self-harm. The preparation of these clauses was informed by extensive consultation with interested groups and campaign bodies. The new offence includes two key elements that constrain the offence to the most culpable offending; namely, that a person’s act must be intended to encourage or assist the serious self-harm of another person and that serious self-harm should amount to grievous bodily harm. If a person does not intend to encourage or assist serious self-harm, as will likely be the case with recovery and supportive material, no offence will be committed. The Law Commission looked at this issue carefully, following evidence from the Samaritans and others, and the implementation will be informed by an ongoing consultation as well.

[Lord Clement-Jones (LD)]

I am sorry to interrupt the Minister, but the Law Commission recommended that the DPP’s consent should be required. The case that the Minister has made on previous occasions in some of the consultations that he has had with us is that this offence that the Government have proposed is different from the Law Commission one, and that is why they have not included the DPP’s consent. I am rather baffled by that, because the Law Commission was talking about a high threshold in the first place, and the Minister is talking about a high threshold of intent. Even if he cannot do so now, it would be extremely helpful to tie that down. As the noble Baroness and my noble friend said, 130 organisations are really concerned about the impact of this.

[Lord Parkinson of Whitley Bay (Con)]

The Law Commission recommended that the consent, but not the personal consent, of the Director of Public Prosecutions should be required. We believe, however, that, because the offence already has tight parameters due to the requirement for an intention to cause serious self-harm amounting to grievous bodily harm, as I have just outlined, an additional safeguard of obtaining the personal consent of the Director of Public Prosecutions is not necessary. We would expect the usual prosecutorial discretion and guidance to provide sufficient safeguards against inappropriate prosecutions in this area. As I say, we will continue to engage with those groups that have helped to inform the drafting of these clauses as they are implemented to make sure that that assessment is indeed borne out.

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[Lord Parkinson of Whitley Bay (Con)]

If my noble friend will forgive me, I had better refresh my memory of what he said—it was some time ago—and follow up in writing.

[Lord Clement-Jones (LD)]

My Lords, I will be extremely brief. There is much to chew on in the Minister’s speech and this was a very useful debate. Some of us will be happier than others; the noble Baroness, Lady Buscombe, will no doubt look forward to the digital markets Bill and I will just have to keep pressing the Minister on the Data Protection and Digital Information Bill.

There is a fundamental misunderstanding about digital identity theft. It will not necessarily always be fraud that is demonstrated—the very theft of the identity is designed to be the crime, and it is not covered by the Fraud Act 2006. I am delighted that the Minister has agreed to talk further with the noble Baroness, Lady Kennedy, because that is a really important area. I am not sure that my noble friend will be that happy with the response, but he will no doubt follow up with the Minister on his amendments.

The Minister made a very clear statement on the substantive aspect of the group, the new crime of encouraging self-harm, but further clarification is still needed. We will look very carefully at what he said in relation to what the Law Commission recommended, because it is really important that we get this right. I know that the Minister will talk further with the noble Baroness, Lady Finlay, who is very well versed in this area. In the meantime, I beg leave to withdraw my amendment.

Amendment 264A withdrawn.

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[Lord Knight of Weymouth (Lab)]

My Lords, that was a bravura performance by the noble Lord, Lord Lexden. We thank him. To those listening in the Public Gallery, I should say that we debated most of those; it was not quite as on the nod as it looked.

Amendment 286ZA, in the name of my noble friend Lord Stevenson, seeks to address a critical issue in our digital landscape: the labelling of AI-generated content on social media platforms.

As we navigate the ever-evolving world of technology, it is crucial that we uphold a transparency safeguarding the principles of honesty and accountability. Social media has become an integral part of our lives, shaping public discourse, disseminating information and influencing public opinion. However, the rise of AI-powered algorithms and tools has given rise to a new challenge: an increasing amount of content generated by artificial intelligence without explicit disclosure.

We live in an age where AI is capable of creating incredibly realistic text, images and even videos that can be virtually indistinguishable from those generated by humans. While this advancement holds immense potential, it also raises concerns regarding authenticity, trust and the ethical implications of AI-generated content. The proposed amendment seeks to address this concern by advocating for a simple but powerful solution—labelling AI-generated content as such. By clearly distinguishing human-generated content from AI-generated content, we empower individuals to make informed decisions about the information they consume, promoting transparency and reducing the potential for misinformation or manipulation.

Labelling AI-generated content serves several crucial purposes. First and foremost, it allows individuals to differentiate between information created by humans and that generated by algorithms in an era where misinformation and deep fakes pose a significant threat to public trust. Such labelling becomes a vital tool to protect and promote digital literacy.

Secondly, it enables users to better understand the potential biases and limitations of AI-generated content. AI algorithms are trained on vast datasets, and without labelling, individuals might unknowingly attribute undue credibility to AI-generated information, assuming it to be wholly objective and reliable. Labelling, however, helps users to recognise the context and provides an opportunity for critical evaluation.

Furthermore, labelling AI-generated content encourages responsible behaviour from the platforms themselves. It incentivises social media companies to develop and implement AI technologies with integrity and transparency, ensuring that users are aware of the presence and influence of AI in their online experiences.

Some may argue that labelling AI-generated content is an unnecessary burden or that it could stifle innovation. However, the intention behind this amendment is not to impede progress but to foster a healthier digital ecosystem built on trust, integrity and informed decision-making. By promoting transparency, we can strike a balance that allows innovation to flourish while safeguarding the interests of individuals and society as a whole.

In conclusion, the amendment to label AI-generated content on social media platforms represents a crucial step forward in addressing the challenges of the digital age. By embracing transparency and empowering individuals, we can foster a more informed and discerning society. Let us lead by example and advocate for a digital landscape that values accountability, integrity and the rights of individuals. I urge your Lordships to support this amendment as we strive to build a future where technology works hand-in-hand with humanity for the betterment of all.

In the spirit of the amendment, I must flag that my entire speaking note was generated by AI, as the noble Lord, Lord Allan, from his expression, had clearly guessed. In using this tool, I do so not to belittle the amendment but to illustrate that these tools are already infiltrating everyday life and can supercharge misinformation. We need to do something to ease internet users in trusting what they read.

[Lord Clement-Jones (LD)]

Does the noble Lord agree that the fact that we did not notice his speech was generated by AI somewhat damages his argument?

[Lord Knight of Weymouth (Lab)]

The fact that I labelled it as being AI-generated helped your Lordships to understand, and the transparency eases the debate. I beg to move.

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[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Allan. He reminded me of significant reports of the huge amount of exploitation in the digital sector that has come from identification of photos. A great deal of that is human labour, even though it is often claimed to have been done through machine intelligence.

In speaking to this late but important amendment, I thank the noble Lords, Lord Stevenson and Lord Knight, for giving us the chance to do so, because, as every speaker has said, this is really important. I should declare my position as a former newspaper editor. I distinctly recall teasing a sports journalist in the early 1990s when it was reported that journalists were going to be replaced by computer technology. I said that the sports journalists would be the first to go because they just wrote to a formula anyway. I apologise to sports journalists everywhere.

The serious point behind that is that a lot of extreme, high claims are now being made about so-called artificial intelligence. I declare myself an artificial-intelligence sceptic. What we have now—so-called generative AI—is essentially big data. To quote the science fiction writer, Ted Chiang, what we have is applied statistics. Generative AI relies on looking at what already exists, and it cannot produce anything original. In many respects, it is a giant plagiarism machine. There are huge issues, beyond the scope of the Bill, around intellectual property and the fact that it is not generating anything original.

None the less, it is generating what people in the sector like to describe as hallucinations, which might otherwise be described as errors, falsehoods or lies. This is where quotes are made up; ideas are presented which, at first glance, look as though they make sense but fall apart under examination; and data is actively invented. There is one rather famous case where a lawyer got himself into a great deal of trouble by producing a whole lot of entirely false cases that a bot generated for him. We need to be really careful, and this amendment shows us a way forward in attempting to deal with some of the issues we are facing.

To pick up the points made by the noble Lord, Lord Allan, about the real-world impacts, I was at an event in Parliament this week entitled “The Worker Experience of the AI Revolution”, run by the TUC and Connected by Data. It highlighted what has happened with a lot of the big data exercises already in operation: rather than humans being replaced by robots, people are being forced to act like robots. We heard from Royal Mail and Amazon workers, who are monitored closely and expected to act like machines. That is just one example of the unexpected outcomes of the technologies we have been exercising in recent years.

I will make two final comments. First, I refer to 19th-century Luddite John Booth, who was tortured to death by the state. He was a Luddite, but he was also on the record as saying that new machinery

“might be man’s chief blessing instead of his curse if society were differently constituted”.

History is not pre-written; it is made by the choices, laws and decisions we make in this Parliament. Given where we are at the moment with so-called AI, I urge that caution really is warranted. We should think about putting some caution in the Bill, which is what this amendment points us towards.

My final point relates to an amendment I was not allowed to table because, I was told, it was out of scope. It asked the Secretary of State to report on the climate emissions coming from the digital sector, specifically from artificial intelligence. The noble Baroness, Lady Kidron, said that it will operate on a vast scale. I point out that, already, the digital sector is responsible for 3% of the world’s electricity use and 2% of the world’s carbon emissions, which is about the same as the airline sector. We really need to think about caution. I very much agree with everyone who said that we need to have more discussions on all these issues before Report.

[Lord Clement-Jones (LD)]

My Lords, this is a real hit-and-run operation from the noble Lord, Lord Stevenson. He has put down an amendment on my favourite subject in the last knockings of the Bill. It is totally impossible to deal with this now—I have been thinking and talking about the whole area of AI governance and ethics for the past seven years—so I am not going to try. It is important, and the advisory committee under Clause 139 should take it into account. Actually, this is much more a question of authenticity and verification than of content. Trying to work out whether something is ChatGPT or GPT-4 content is a hopeless task; you are much more likely to be able to identify whether these are automated users such as chatbots than you are to know about the content itself.

I will leave it there. I missed the future-proofing debate, which I would have loved to have been part of. I look forward to further debates with the noble Viscount, Lord Camrose, on the deficiencies in the White Paper and to the Prime Minister’s much more muscular approach to AI regulation in future.

[Lord Parkinson of Whitley Bay (Con)]

I am sure that the noble Lord, Lord Stevenson of Balmacara, is smiling over a sherry somewhere about the debate he has facilitated. His is a useful probing amendment and we have had a useful discussion.

The Government certainly recognise the potential challenges posed by artificial intelligence and digitally manipulated content such as deepfakes. As we have heard in previous debates, the Bill ensures that machine-generated content on user-to-user services created by automated tools or machine bots will be regulated where appropriate. Clause 49(4)(b) means that machine-generated content is regulated unless the bot or automated tool producing the content is controlled by the provider of the service.

The labelling of this content via draft legislation is not something to which I can commit today. The Government’s AI regulation White Paper sets out the principles for the responsible development of artificial intelligence in the UK. These principles, such as safety, transparency and accountability, are at the heart of our approach to ensuring the responsible development and use of AI. As set out in the White Paper, we are building an agile approach that is designed to be adaptable in response to emerging developments. We do not wish to introduce a rigid, inflexible form of legislation for what is a flexible and fast-moving technology.

The public consultation on these proposals closed yesterday so I cannot pre-empt our response to it. The Government’s response will provide an update. I am joined on the Front Bench by the Minister for Artificial Intelligence and Intellectual Property, who is happy to meet with the noble Baroness, Lady Kidron, and others before the next stage of the Bill if they wish.

Beyond labelling such content, I can say a bit to make it clear how the Bill will address the risks coming from machine-generated content. The Bill already deals with many of the most serious and illegal forms of manipulated media, including deepfakes, when they fall within scope of services’ safety duties regarding illegal content or content that is potentially harmful to children. Ofcom will recommend measures in its code of practice to tackle such content, which could include labelling where appropriate. In addition, the intimate image abuse amendments that the Government will bring forward will make it a criminal offence to send deepfake images.

In addition to ensuring that companies take action to keep users safe online, we are taking steps to empower users with the skills they need to make safer choices through our work on media literacy. Ofcom, for example, has an ambitious programme of work through which it is funding several initiatives to build people’s resilience to harm online, including initiatives designed to equip people with the skills to identify disinformation. We are keen to continue our discussions with noble Lords on media literacy and will keep an open mind on how it might be a tool for raising awareness of the threats of disinformation and inauthentic content.

With gratitude to the noble Lords, Lord Stevenson and Lord Knight, and everyone else, I hope that the noble Lord, Lord Knight, will be content to withdraw his noble friend’s amendment.

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[Baroness Kidron (CB)]

My Lords, we already had a long debate on this subject earlier in Committee. In the interim, many noble Lords associated with these amendments have had conversations with the Government, which I hope will bear some fruit before Report. Today, I want to reiterate a few points that I hope are clarifying to the Committee and the department. In the interests of everyone’s evening plans, the noble Lord, Lord Bethell, and the noble Baroness, Lady Harding, wish to associate themselves with these remarks so that they represent us in our entirety.

For many years, we thought age verification was a gold standard, primarily because it involved a specific government-issued piece of information such as a passport. By the same token, we thought age estimation was a lesser beast, given that it is an estimate by its very nature and that the sector primarily relied on self-declarations with very few checks and balances. In recent years, many approaches to age checking have flourished. Some companies provide age assurance tokens based on facial recognition; others use multiple signals of behaviour, friendship group, parental controls and how you move your body in gameplay; and, only yesterday, I saw the very impressive on-device privacy-preserving age-verification system that Apple rolled out in the US two weeks ago. All of these approaches, used individually and cumulatively, have a place in the age-checking ecosystem, and all will become more seamless over time. But we must ensure that, when they are used, they are adequate for the task they are performing and are quality controlled so that they do not share information about a child, are secure and are effective.

That is why, at the heart of the package of measures put forward in my name and that of the noble Lords, Lord Stevenson and Lord Bethell, and the right reverend Prelate the Bishop of Oxford, are two concepts. First, the method of measuring age should be tech neutral so that all roads can be used. Secondly, there must be robust mechanism of measurement of effectiveness so that only effective systems can be used in high-risk situations, particularly those of primary priority harms such as self-harm and pornography, and that such a measurement will be determined by Ofcom, not industry.

From my work over the last decade and from recent discussion with industry, I am certain that any regime of age assurance must be measurable and hold to certain principles. We cannot create a situation where children’s data is loosely held and liberally shared; we cannot have a system that discriminates against, or does not have automatic appeal mechanisms for, children of colour or those who are 17 or 19, who are at most likelihood of error. Systems should aim to be interoperable and private, not leave traces as children go from one service to another.

Each of the principles of our age-verification package set out in the schedule are of crucial importance. I hope that the Government will see the sense in that because, without them, this age checking will not be trusted. Equally, I urge the Committee to embrace the duality of age verification and estimation that the Government have put forward, because, if a child uses an older sibling’s form of verification and a company understands through the child’s behaviour that they are indeed a child, then we do not want to set up a perverse situation in which the verification is considered of a higher order and they cannot take action based on estimation; ditto, if estimation in gameplay is more accurate than tokens that verify whether someone is over or under 18, it may well be that estimation gives greater assurance that the company will treat the child according to their age.

I hope and believe that, in his response, the Minister will confirm that definitions of age assurance and age estimation will be on the face of the Bill. I also urge him to make a generous promise to accept the full gamut of our concerns about age checking and bring forward amendments in his name on Report that reflect them in full. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I associate these Benches with the introduction by the noble Baroness, Lady Kidron, support her amendments and, likewise, hope that they form part of the package that is trundling on its way towards us.

[Lord Knight of Weymouth (Lab)]

My Lords, what more can I say than that I wish to be associated with the comments made by the noble Baroness and then by the noble Lord, Lord Clement-Jones? I look forward to the Minister’s reply.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Thursday 22nd June 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, I support this group of amendments. I pay tribute to the families who I see are watching us as we debate this important group. I also pay tribute to my noble friend Lady Newlove, who has just given one of the most powerful speeches in the full 10 days of Committee.

The real sadness is that we are debating what happens when things go horribly wrong. I thank my noble friend the Minister and the Secretary of State, who is currently on leave, for the very collaborative way in which I know they have approached trying to find the right package—we are all waiting for him to stand up and speak to show us this. Very often, Governments do not want to give concessions early in the process of a Bill going through because they worry that those of us campaigning for concessions will then ask for more. In this case, as the noble Lord, Lord Russell, has just pointed to, all we are asking for in this Bill is to remember that a concession granted here helps only when things have gone horribly wrong.

As the noble Baroness, Lady Kidron, said, what we really want is a safer internet, where fewer children die. I reiterate the comments that she made at the end of her speech: as we have gone through Committee, we have all learned how interconnected the Bill is. It is fantastic that we will be able to put changes into it that will enable bereaved families not to have to follow the path that the Russells and all the other bereaved families campaigning for this had to follow—but that will not be enough. We also need to ensure that we put in place the safety-by-design amendments that we have been discussing. I argue that one of the most important is the one that the noble Lord, Lord Russell, has just referenced: when you already know that your child is in trouble but you cannot get help, unfortunately no one wants then to be able to say, “It’s okay. Bereaved families have what they need”. We need to do more than that.

[Lord Clement-Jones (LD)]

My Lords, this has been a very moving debate for a very important cause. I thank the noble Baroness, Lady Kidron, for introducing it in the way that she did, along with those who have spoken in the debate.

The good news is that this is very much a cross-party and cross-Bench debate. It clearly appears to be a concern that the Government share, and I appreciate that. I agree with the noble Baroness, Lady Harding, that it is not a weakness for the Government to concede here but very much the logic of where we have now got to. Compared with what is in the Joint Committee report on the draft Bill, what seems to be proposed—and I very much look forward to hearing what the Minister has to say—goes further than what we were proposing, so it may be that we have reached another milestone. However, we wait to hear the detail.

Like other noble Lords, I pay tribute to the bereaved parents. We heard from parents during our consideration of the draft Online Safety Bill and we have heard further since then, particularly as a result of the two notable inquests into the deaths of Frankie Thomas and Molly Russell, which highlighted the difficulties that families and coroners face. Both families talked about the additional toll on their mental health as they battle for information, and the impossibility of finding closure in the absence of answers.

The noble Baroness, Lady Newlove, said in her very moving speech that a humane process must be established for bereaved families and coroners to access data pertinent to the death of a child. That is what we have been seeking, and I pay tribute to the relentless way in which the noble Baroness, Lady Kidron, has pursued this issue on behalf of us all, supported by 5Rights and the NSPCC. We must have a transparent process in which bereaved families and coroners can access information from regulated services in cases where social media may have played a part in the death of a child.

My noble friend Lord Allan—who I am delighted is so plugged in to what could be the practical way of solving some of these issues—expertly described how Ofcom’s powers could and should be used and harnessed for this purpose. That very much goes with the grain of the Bill.

I shall repeat a phrase that the noble Baroness, Lady Kidron, used: the current situation is immoral and a failure of justice. We absolutely need to keep that in mind as we keep ourselves motivated to find the solution as soon as we possibly can. I look forward to good news from the Minister about the use of information notices for the purpose that has been heralded by the noble Baroness, Lady Kidron, but of course the devil is in the detail. We will obviously want to see the detail of the amendment well before Report.

--- Later in debate ---

[Baroness Kidron (CB)]

My Lords, I will be even more direct than the noble Baroness, Lady Morgan, and seek some confirmation. I understood from our various briefings in Committee that, where content is illegal, it is illegal anywhere in the digital world—it is not restricted simply to user to user, search and Part 5. Can the Minister say whether I have understood that correctly? If I have, will he confirm that Ofcom will be able to use its disruption powers on a service out of scope, as it were, such as a blog or a game with no user-to-user aspect, if it were found to be persistently hosting illegal content?

[Lord Clement-Jones (LD)]

My Lords, this has been an interesting debate, though one of two halves, if not three.

The noble Lord, Lord Bethell, introduced his amendment in a very measured way. My noble friend Lady Benjamin really regrets that she cannot be here, but she strongly supports it. I will quote her without taking her speech entirely on board, as we have been admonished for that previously. She would have said that

“credit card companies have claimed ignorance using the excuse of how could they be expected to know they are supporting porn if they were not responsible for maintaining porn websites … This is simply not acceptable”.

Noble Lords must forgive me—I could not possibly have delivered that in the way that my noble friend would have done. However, I very much took on board what the noble Lord said about how this makes breaches transparent to the credit card companies. It is a right to be informed, not an enforcement power. The noble Lord described it as a simple and proportionate measure, which I think is fair. I would very much like to hear from the Minister why, given the importance of credit card companies in the provision of pornographic content, this is not acceptable to the Government.

The second part of this group is all about effective enforcement, which the noble Lord, Lord Bethell, spoke to as well. This is quite technical; it is really important that these issues have been raised, in particular by the noble Lord. The question is whether Ofcom has the appropriate enforcement powers. I was very taken by the phrase

“pre-empt a possible legal challenge”,

as it is quite helpful to get your retaliation in first. Underlying all this is that we need to know what advice the Minister and Ofcom are getting about the enforcement powers and so on.

I am slightly more sceptical about the amendments from the noble Lord, Lord Curry. I am all in favour of the need for speed in enforcement, particularly having argued for it in competition cases, where getting ex-ante powers is always a good idea—the faster one can move, the better. However, restricting the discretion of Ofcom in those circumstances seems to me a bit over the top. Many of us have expressed our confidence in Ofcom as we have gone through the Bill. We may come back to this in future; none of us thinks the Bill will necessarily be the perfect instrument, and it may prove that we do not have a sufficiently muscular regulator. I entirely respect the noble Lord’s track record and experience in regulation, but Ofcom has so far given us confidence that it will be a muscular regulator.

I turn now to the third part of the group. I was interested in the context in which my noble friend placed enforcement; it is really important and supported by the noble Baroness, Lady Morgan. It is interesting what questions have been asked about the full extent of the Government’s ambitions in this respect: are VPNs going to be subject to these kinds of notices? I would hope so; if VPNs are really the gateway to some of the unacceptable harms that we are trying to prevent, we should know about that. We should be very cognisant of the kind of possible culture being adopted by some of the social media and regulated services, and we should tailor our response accordingly. I will be interested to hear what the Government have to say on that.

[Baroness Merron (Lab)]

My Lords, I am grateful to the noble Lords, Lord Bethell, Lord Curry and Lord Allan for introducing their amendments, to the noble Baroness, Lady Morgan, for her direct question, and to the noble Baroness, Lady Kidron, for her equally direct question. I am sure they will be of great assistance to the Minister when he replies. I will highlight the words of the noble Lord, Lord Allan, who said “We are looking for services to succeed”. I think that is right, but what is success? It includes compliance and enforcement, and that is what this group refers to.

The amendments introduced by the noble Lord, Lord Bethell, seek to strengthen what is already in the Bill about Ofcom’s Chapter 6 powers of enforcement, otherwise known as business disruption powers, and they focus on what happens in the event of a breach; they seek to be more prescriptive than what we already have. I am sure the Minister will remember that the same issue came up in the Digital Economy Bill, around the suggestion that the Government should take specific powers. There, the Government argued they had assurances from credit card companies that, if and when action was required, they would co-operate. In light of that previous discussion, it will be interesting to hear what the Minister has to say.

In respect of the amendments introduced by the noble Lord, Lord Curry, on the need to toughen up requirements on Ofcom to act, I am sure the Minister will say that these powers are not required and that the Bill already makes provision for Ofcom blocking services which are failing in their duties. I echo the concern of the noble Lord, Lord Clement-Jones, about being overly prescriptive and not allowing Ofcom to do its job. The truth is that Ofcom may need discretion but it also needs teeth, and I will be interested to hear what the Minister has to say about whether he feels, in the light of the debate today and other conversations, that there is sufficient toughness in the Bill and that Ofcom will be able to do the job it is required to do. There is an issue of the balance of discretion versus requirement, and I know he will refer to this. I will also be interested to hear from the Minister about the view of Ofcom with respect to what is in the Bill, and whether it feels that it has sufficient powers.

I will raise a final point about the amendments in the name of the noble Lord, Lord Curry. I think they ask a valid question about the level of discretion that Ofcom will have. I ask the Minister this: if, a few years down the line, we find that Ofcom has not used the powers suitably, despite clear failures, what would the Government seek to do? With that, I look forward to hearing from the Minister.

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[Lord Parkinson of Whitley Bay (Con)]

When I saw the noble Lord, Lord Foster of Bath, and the noble Baroness, Lady Armstrong of Hill Top, in their places, I wondered whether they were intending to raise these points. I will certainly take on board what the noble Lord says and, if there is further information I can furnish your Lordships with, I certainly will.

The noble Baroness, Lady Kidron, asked whether the powers can be used on out-of-scope services. “No” is the direct answer to her direct question. The powers can be used only in relation to regulated services, but if sites not regulated by the Bill are publishing illegal content, existing law enforcement powers—such as those frequently deployed in cases of copyright infringement—can be used. I could set out a bit more in writing if that would be helpful.

My noble friend Lord Bethell’s amendments seek to set out in the Bill that Ofcom will be able to make a single application to the courts for an order enabling business disruption measures that apply against multiple platforms and operators. I must repeat, as he anticipated, the point made by my right honourable friend Chris Philp that the civil procedure rules allow for a multi-party claim to be made. These rules permit any number of claimants or defendants and any number of claims to be covered by one claim form. The overriding objective of the civil procedure rules is that cases are dealt with justly and proportionately. I want to reassure my noble friend that the Government are confident that the civil procedure rules will provide the necessary flexibility to ensure that services can be blocked or restricted.

The amendment in the name of the noble Lord, Lord Allan of Hallam, seeks to clarify what services might be subject to access restriction orders by removing the two examples provided in the Bill: internet access services and application stores. I would like to reassure him that these are simply indicative examples, highlighting two kinds of service on which access restriction requirements may be imposed. It is not an exhaustive list. Orders could be imposed on any services that meet the definition—that is, a person who provides a facility that is able to withdraw, adapt or manipulate it in such a way as to impede access to the regulated service in question. This provides Ofcom with the flexibility to identify where business disruption measures should be targeted, and it future-proofs the Bill by ensuring that the power remains functional and effective as technologies develop.

As the noble Lord highlighted, these are significant powers that can require that services be blocked in the UK. Clearly, limiting access to services in this way substantially affects the business interests of the service in question and the interests of the relevant third-party service, and it could affect users’ freedom of expression. It is therefore essential that appropriate safeguards are included and that due process is followed. That is why Ofcom will be required to seek a court order to be able to use these powers, ensuring that the courts have proper oversight.

To ensure that due process is upheld, an application by the regulator for a court order will have to specify the non-compliant provider, the grounds of the order and the steps that Ofcom considers should be imposed on the third parties in order to withdraw services and block users’ access. These requirements will ensure that the need to act quickly to tackle harm is appropriately balanced against upholding fundamental rights.

It might be useful to say a little about how blocking works—

[Lord Clement-Jones (LD)]

Before the Minister does that, can he say whether he envisages that operating against VPNs as well?

[Lord Parkinson of Whitley Bay (Con)]

If I may, I will take advice on that and write to the noble Lord.

[Lord Clement-Jones (LD)]

That would be useful.

[Lord Parkinson of Whitley Bay (Con)]

Yes; he made a helpful point, and I will come back on it.

Online Safety Bill

Lord Clement-Jones Excerpts

Thursday 25th May 2023 Lords Chamber

I hope the Minister is sympathetic to Amendment 134 so we can make the necessary progress. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I rise to support Amendment 134, tabled by the noble Lord, Lord Stevenson, which was so ably introduced by the noble Baroness, Lady Merron. The Government accepted the Joint Committee’s recommendation that priority offences should be put in the Bill, and that is now contained in Schedules 5, 6 and 7. In particular, Schedule 7 sets out the priority offences. The noble Baroness, Lady Merron, has nailed it in setting out why these animal suffering-related offences fall within the Government’s criteria.

When the Government responded to the Joint Committee, they accepted our recommendation that we should put priority content in the Bill. As the noble Baroness, Lady Merron, said, the criteria are very clearly set out in paragraph 86 of their report:

“The prevalence of such content on regulated services … The risk of harm being caused to UK users by such content; and … The severity of that harm”.

The noble Baroness has absolutely set out how these offences fall within those criteria: the prevalence of these offences; the abuse that is present; the viewing by children and its impact on them; the impact on animal welfare, which would be positive if this content were treated as a priority offence; and the very strong public support.

Of course—the noble Baroness did not quite go here, but I will—there is a massive contrast with the inclusion of the encouragement of immigration offence in Schedule 7. These offences have far greater merit for inclusion in Schedule 7. I very much hope the Minister will accede to what I think is an extremely reasonable amendment.

[The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)]

I thank the noble Baroness for her amendment and the noble Lord, Lord Clement-Jones, for speaking so powerfully, as ever. I very much recognise the harms and horrors of cruelty to animals online or anywhere else. The UK has a proud history of championing and taking action on animal welfare, and the Government are committed to strengthening animal welfare standards and protections.

Our Action Plan for Animal Welfare demonstrates the Government’s commitment to a brighter future for animals both at home and abroad and provides a foundation for conversations on how we can continue to improve animal welfare and conservation in future. I can also reassure your Lordships that this Bill will tackle some of the worst online activities related to animal cruelty.

Amendment 134 seeks to add certain specified animal offences to the list of priority offences in Schedule 7. It is worth reminding ourselves that the Bill will already tackle some of the worst examples of animal cruelty online. This includes, for example, where the content amounts to an existing priority offence, such as extreme pornography, which platforms must prevent users encountering. Equally, where content could cause psychological harm to children, it must be tackled. Where the largest services prohibit types of animal abuse content in their terms of service, the Bill will require them to enforce those terms and remove such content. Improved user reporting and redress systems, as mandated by the Bill, will make it easier for users to report such content.

The Bill, however, is not designed to address every harm on the internet. For it to have an impact, it needs to be manageable for both Ofcom and the companies. For it to achieve the protections envisaged since the start of the Bill, it must focus on its mission of delivering protections for people. Schedule 7 has been designed to focus on the most serious and prevalent offences affecting humans in the UK, on which companies can take effective and meaningful action. The offences in this schedule are primarily focused on where the offences can be committed online—for example, threats to kill or the unlawful supply of drugs. The offences that the noble Baroness proposes cannot be committed online; while that would not stop them from being added for inchoate purposes, the Government do not believe that platforms would be able to take effective steps proactively to identify and tackle such offences online.

Crucially, the Government feel that adding too many offences to Schedule 7 that cannot be effectively tackled also risks spreading companies’ resources too thinly, particularly for smaller and micro-businesses, which would have to address these offences in their risk assessments. Expanding the list of offences in Schedule 7 to include the animal cruelty offences could dilute companies’ efforts to tackle other offences listed in the Bill which have long been the priority of this legislation.

Beyond the Bill, however, the Government are taking a very wide range of steps to tackle animal cruelty. Since publishing the Action Plan for Animal Welfare in 2021, the Government have brought in new laws to recognise animal sentience, introduced additional legislative measures to tackle illegal hare-coursing, and launched the animal health and welfare pathway as part of our agricultural transition plan. We will, of course, continue to discuss these important issues with colleagues at the Department for Environment, Food and Rural Affairs, who lead on our world-leading protections for animals, but, for the reasons I have set out, I am unable to accept this amendment. I therefore hope that the noble Baroness will withdraw it.

--- Later in debate ---

[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.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a very good and well-focused debate. We have focused deeply on the particular issue I will focus on in my speech about why there is a difference in the Government’s approach to what seem to be, on the surface, very similar instances of the evidence we have all been looking at, and are convinced by, that, in some way, the internet, as currently constructed, is gendered against women. Something must be done about that.

I am grateful to the Minister for introducing this group. Amendment 135A is very well-drafted and appropriate for what we are doing. I have very little to comment on it. It is a difficult area, but I am glad that the Government are putting their money where their mouth was on this issue and that we are seeing some action coming forward.

My noble friend Lady Merron would have been speaking to our amendments in this group, but, unfortunately, she has been taken off for some treatment to her leg, which seems to have been slightly twisted. They follow on from the meeting that the Minister mentioned with Professor Lewis from the Law Commission, when she very expertly introduced this whole topic, explaining very carefully, and with great care and concern, the reasons why the Law Commission has proposed, and the Government have accepted, that the new law to be brought in on cyberflashing needs to be different. My problem with that was that it seemed, by the end of it, that the rationale for doing it differently from other offences of a similar nature and type was more to do with the fact that there were good reasons for having the ability to send dick pics—let us call them that, even though it is a horrible term to use.

It is sometimes necessary for pictures to be sent around, and examples of that were given. For example, in a medical situation in which a doctor, perhaps during the Covid epidemic, wanted to know about a patient’s particular problem in the genital area, a picture would be helpful in diagnosis. Sending that should not be made illegal. Other reasons were given. The argument was good, but not sufficient to trump the need to have in place a set of laws relating to the way in which the internet treats women and girls in this dimension that does not come from different directions and is not confusing but complementary.

--- Later in debate ---

[Lord Stevenson of Balmacara (Lab)]

It is a very narrow point, but it is important in terms of the overall approach that we are taking on this. The Minister very accurately described the reasons that the Law Commission came up with for moving back to an intent-based rather than content-based approach. I wanted to ask him to check whether the wording in the amendment that we signed up to, in the name of the noble Baroness, Lady Featherstone—ably introduced by the noble Baroness, Lady Burt, and spoken to by many people around the Chamber—would cover off those points where there is legitimate reason for this material to be circulated. I used an unfortunate phrase that I will not repeat. Are the Government happy to accept that it is possible to get around that objection by the Law Commission by making legitimate those particular explicit reasons for those pictures being circulated? I make that point only to get an admission at the Dispatch Box that the Government could get round the issue that has been mentioned, but they are still deciding to go for an intent-based approach for other reasons, which the Minister has just adumbrated and which I accept are genuine.

[Lord Clement-Jones (LD)]

It may be helpful to the Minister to just repeat the terms of the amendment itself. If you reverse the point and do not have intent, you would still need to consider

“Whether a belief is reasonable”


which

“is to be determined having regard to all the circumstances, including any steps that A has taken to ascertain whether B consents”.

The noble Lord, Lord Stevenson, has absolutely hit the mark on this. This would not lead to terrible consequences and injustices because of this particular qualification.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Thursday 25th May 2023 Lords Chamber

My only caveat to this proposal relates to what the noble Lord, Lord Allan, said about the bad guys being banned and that, if they are banned, they might emerge somewhere else. We also need to recognise that sometimes people who are called the bad guys can be banned, and they are not the bad guys. They need to be able to say, “We’re not the bad guys”. That is why the more detail, the better. The only other caveat is that I do not want to be in a situation where we demand endless regulatory complexity and reports and impositions make life impossible for the services in terms of red tape and paperwork. That is my only caveat. Generally speaking, however, I am very positive about these amendments, and I hope that by Report they become, one way or another, part of the Bill.

[Lord Clement-Jones (LD)]

My Lords, I strongly support the amendment in the names of the noble Lords, Lord Knight and Lord Stevenson, as well as my noble friend Lady Featherstone. The essence of the message from the noble Lord, Lord Knight, about the need for trust and the fact that you can gain trust through greater transparency is fundamental to this group.

The Joint Committee’s report is now a historical document. It is partly the passage of time, but it was an extraordinary way in which to work through some of the issues, as we did. We were very impacted by the evidence given by Frances Haugen, and the fact that certain things came to light only as a result of her sharing information with the Securities and Exchange Commission. We said at the time that:

“Lack of transparency of service providers also means that people do not have insight into the prevalence and nature of activity that creates a risk of harm on the services that they use”.


That is very much the sense that the noble Lord, Lord Stevenson, is trying to get to by adding scope as well.

We were very clear about our intentions at the time. The Government accepted the recommendation that we made and said that they agreed with the committee that

“services with transparency reporting requirements should be required to publish their transparency reports in full, and in an accessible and public place”.

So what we are really trying to do is to get the Government to agree to what they have already agreed to, which we would have thought would be a relatively straightforward process.

There are some other useful aspects, such as the review of effectiveness of the transparency requirements. I very much appreciate what my noble friend just said about not reading transparency reports. I read the oversight reports but not necessarily the transparency reports. I am not sure that Frances Haugen was a great advert for transparency reports at the time, but that is a mere aside in the circumstances.

I commend my noble friend Lady Featherstone’s Amendment 171, which is very consistent with what we were trying to achieve with the code of practice about violence against women and girls. That would fit very easily within that. One of the key points that my noble friend Lord Allan made is that this is for the benefit of the platforms as well. It is not purely for the users. Of course it is useful for the users, but not exclusively, and this could be a way of platforms engaging with the users more clearly, inserting more fresh air into this. In these circumstances it is pretty conclusive that the Government should adhere to what they agreed to in their response to the Joint Committee’s report.

[The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)]

As ever, I thank all noble Lords who have spoken. I absolutely take, accept and embrace the point that transparency is wholly critical to what we are trying to achieve with the Bill. Indeed, the chandelier of transparency reports should be our shared aim—a greenhouse maybe. I am grateful for everyone’s contributions to the debate. I agree entirely with the views expressed. Transparency is vital in holding companies to account for keeping their users safe online. As has been pointed out, it is also to the benefit of the platforms themselves. Confident as I am that we share the same objectives, I would like to try to reassure noble Lords on a number of issues that have been raised.

Amendments 160A, 160B and 181A in the name of the noble Lord, Lord Knight of Weymouth, seek to require providers to make their transparency reports publicly available, subject to appropriate redactions, and to allow Ofcom to prevent their publication where it deems that the risks posed by drawing attention to illegal content outweigh the benefit to the public of the transparency report. Let me reassure the noble Lord that the framework, we strongly believe, already achieves the aim of those amendments. As set out in Clause 68, Ofcom will specify a range of requirements in relation to transparency reporting in a notice to categories 1, 2A and 2B. This will include the kind of information that is required in the transparency report and the manner in which it should be published. Given the requirement to publish the information, this already achieves the intention of Amendment 160A.

The specific information requested for inclusion within the transparency report will be determined by Ofcom. Therefore, the regulator will be able to ensure that the information requested is appropriate for publication. Ofcom will take into account any risks arising from making the information public before issuing the transparency notice. Ofcom will have separate information-gathering powers, which will enable the regulator to access information that is not suitable to be published in the public domain. This achieves the intention of Amendment 160B. There is also a risk of reducing trust in transparency reporting if there is a mechanism for Ofcom to prevent providers publishing their transparency reports.

Amendment 181A would require Ofcom to issue guidance on what information should be redacted and how this should be done. However, Ofcom is already required to produce guidance about transparency reports, which may include guidance about what information should be redacted and how to do this. It is important to provide the regulator with the flexibility to develop appropriate guidance.

Amendment 165 seeks to expand the information within the transparency reporting requirements to cover the scope of the terms of service set out by user-to-user providers. I very much agree with the noble Lord that it is important that Ofcom can request information about the scope of terms of service, as well as about their application. Our view is that the Bill already achieves this. Schedule 8 sets out the high-level matters about which information may be required. This includes information about how platforms are complying with their duties. The Bill will place duties on user-to-user providers to ensure that any required terms of service are clear and accessible. This will require platforms to set out what the terms of service cover—or, in other words, the scope. While I hope that this provides reassurance on the matter, if there are still concerns in spite of what I have said, I am very happy to look at this. Any opportunity to strengthen the Bill through that kind of clarity is worth looking at.

--- Later in debate ---

He was referring to journalistic sources. I have had a great number of journalists and their representatives reaching out to me, pointing to the terms used by the Minister. They have said that if those algorithms, searches or de-encryption tools are let loose, there is no way of being able to say, “That’s a bit of journalism, so the tool’s not going to apply to it”. That simply does not add up. The amendments in this group are getting into that much broader issue, so I look forward to hearing from the noble Lord, Lord Stevenson, on them.

[Lord Clement-Jones (LD)]

My Lords, this is the most miscellaneous of all the groups that we have had, so it has rightly been labelled as such—and the competition has been pretty strong. I want to come back to the amendments of the noble Lord, Lord Stevenson, and of the noble Lord, Lord Bassam, but first I want to deal with my Amendments 200 and 201 and to put on the record the arguments there.

Again, if I refer back to our joint report, we were strongly of the view—alongside the Communications and Digital Committee—that there should be a statutory requirement for regulators

“to cooperate and consult with one another”.

Although we welcomed the formation of the DRCF, it seemed to us that there should be a much firmer duty. I was pleased to hear the examples that my noble friend put forward of the kinds of co-operation that will be needed. The noble Baroness, Lady Morgan, clearly understands that, particularly in the area of fraud, it could be the FCA or ICO, and it could be Ofcom in terms in social media. There is a range of aspects to this—it could be the ASA.

These bodies need to co-operate. As my noble friend pointed out, they can apparently conflict; therefore, co-operating on the way that they advise those who are subject to regulation is rather important. It is not just about the members of the Digital Regulation Cooperation Forum. Even the IWF and the ASA could be included in that, not to mention other regulators in this analogous space. That forum has rightly been labelled as “Digital”, and digital business is now all-pervasive and involves a huge number of regulatory aspects.

Although in this context Ofcom will have the most relevant powers and expertise, and many regulators will look to it for help in tackling online safety issues, effective public protection will be achieved through proper regulatory co-operation. Therefore, Ofcom should be empowered to co-operate with others to share information. As much as it can, Ofcom should be enabled to work with other regulators and share online safety information with them.

It has been very heartening to see the noble Lord, Lord Grade, in his place, even on a Thursday afternoon, and heartening how Ofcom has engaged throughout the passage of the Bill. We know the skills that it is bringing on board, and with those skills we want it to bring other regulators into its work. It seems that Ofcom is taking the lead on those algorithmic understanding skills, but we need Ofcom to have the duty to co-operate with the other regulators on this as well.

Strangely, in Clause 103 the Bill gives Ofcom the general ability to co-operate with overseas regulators, but it is largely silent on co-operation with UK regulators. Indeed, the Communications Act 2003 limits the UK regulators with which Ofcom can share information, excluding the ICO, for example, which is rather perverse in these circumstances. However, the Bill has a permissive approach to overseas regulators so, again, it should extend co-operation and information-sharing in respect of online safety to include regulators overseeing the offences in Schedule 7 that we have spent some time talking about today—the enforcement authorities, for instance, those responsible for enforcing the offences in relation to priority harms to children and priority offences regarding adults. Elsewhere in regulation, the Financial Conduct Authority may have a general duty to co-operate. The reverse may be true, so that duty of co-operation will need to work both ways.

As my noble friend Lord Allan said, Amendment 200, the skilled persons provision, is very straightforward. It is just to give the formal power to be able to use the expertise from a different regulator. It is a very well-known procedure to bring skilled persons into inquiries, which is exactly what is intended there.

Both amendments tabled by the noble Lord, Lord Bassam, are rather miscellaneous too, but are not without merit, particularly Amendment 185A. Please note that I agree with the noble Baroness, Lady Fox. I 100% support the intention behind the amendment but wonder whether the Bill is the right vehicle for it. No doubt the Minister will answer regarding the scope and how practical it would be. I absolutely applaud the noble Lord for campaigning on this issue. It is extraordinarily important, because we have seen some tragic outcomes of these weapons being available for sale online.

Amendment 268AA, also tabled by the noble Lord, Lord Bassam, is entirely different. Our Joint Committee heard evidence from Edleen John of the FA and Rio Ferdinand about abuse online. It was powerful stuff. I tend to agree with my noble friend. We have talked about user empowerment, the tools for it and, particularly in the context of violence against women and girls, the need for a way to be able to report that kind of abuse or other forms of content online. This is a candidate for that kind of treatment. While platforms obviously need to prevent illegal content and have systems to prevent it and so on, having assessed risk in the way that we have heard about previously, I do not believe that expecting the platforms to pick it up and report it, turning them into a sort of proto-enforcer, is the most effective way. We have to empower users. I absolutely share the objectives set out.

[Lord Bassam of Brighton (Lab)]

My Lords, when I brought an amendment to a police Bill, my local football club said to me that it was anticipating spending something like £100,000 a year trying to create and develop filters, which were commercially available, to stop its footballers being able to see the abuse that they were getting online. It did that for a very sensible commercial reason because those footballers’ performance was affected by the abuse they got. I want to know how the noble Lord sees this working if not by having some form of intervention that involves the platforms. Obviously, there is a commercial benefit to providers of filters et cetera, but it is quite hard for those who have been victims to see a way to make this useful to them without some external form of support.

[Lord Clement-Jones (LD)]

I absolutely take what the noble Lord is saying, and I am not saying that the platforms do not have responsibility. Of course they do: the whole Bill is about the platforms taking responsibility with risk assessment, adhering to their terms of service, transparency about how those terms are operating, et cetera. It is purely on the question of whether they need to be reporting that content when it occurs. They have takedown responsibilities for illegal content or content that may be seen by children and so on, but it is about whether they have the duty to report to the police. It may seem a relatively narrow point, but it is quite important that we go with the framework. Many of us have said many times that we regret the absence of “legal but harmful” but, given where we are, we basically have to go with that architecture.

I very much enjoyed listening to the noble Baroness, Lady Bennett. There is no opportunity lost in the course of the Bill to talk about ChatGPT or GPT-4, and that was no exception. It means that we need to listen to how young people are responding to the way that this legislation operates. I am fully in favour of whatever mechanism it may be. It does not need to be statutory, but I very much hope that we do not treat this just as the end of the process but will see how the Bill works out and will listen and learn from experience, and particularly from young people who are particularly vulnerable to much of the content, and the way that the algorithms on social media work.

[Lord Stevenson of Balmacara (Lab)]

My Lords—

[Lord Clement-Jones (LD)]

I am so sorry. With due respect to the noble Lord, Lord Stevenson, the noble Baroness, Lady Bennett, reminded me that his Amendments 202ZA and 210A, late entrants into the miscellaneous group, go very much with the grain that we are trying to get in within the area of encryption. We had quite a long debate about encryption on Clause 110. As ever, the noble Lord has rather cunningly produced something that I think will get us through the eye of the free speech needle. They are two very cunning amendments.

[Lord Stevenson of Balmacara (Lab)]

I thank the noble Lord for that. Free expression, my Lords, not free speech.

[Lord Clement-Jones (LD)]

Freedom of expression.

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

I was suggesting that we have a bigger problem than it appearing on a small site. It quotes from mainstream media, but it ends up being broadly disseminated and not because it is on a small site. I am not advocating that we all go round carrying the manifestos of mass shooters and legitimising them. I was more making the point that it can be complicated. Would not the solution be that you can make appeals that a small site is treated differently? That is the way we deal with harmful material in general and the way we have dealt with, for example, RT as press without compromising on press freedom. That is the kind of point I am trying to make.

I understand lots of concerns but I do not want us to get into a situation where we destroy the potential of all smaller platforms—many of them doing huge amounts of social good, part of civil society and all the rest of it—by treating them as though they are large platforms. They just will not have the resources to survive, that is all my point is.

[Lord Clement-Jones (LD)]

My Lords, I am going to be extremely brief given the extremely compelling way that these amendments have been introduced by the noble Baroness, Lady Morgan, and the noble Lord, Lord Griffiths, and contributed to by the noble Baroness, Lady Bull. I thank her for her comments about my noble friend Lady Parminter. I am sure she would have wanted to be here and would have made a very valuable contribution as she did the other day on exactly this subject.

As the noble Baroness, Lady Fox, has illustrated, we have a very different view of risk across this Committee and we are back, in a sense, into that whole area of risk. I just wanted to say that I think we are again being brought back to the very wise words of the Joint Committee. It may sound like special pleading. We keep coming back to this, and the noble Lord, Lord Stevenson, and I are the last people standing on a Thursday afternoon.

We took a lot of evidence in this particular area. We took the trouble to go to Brussels and had a very useful discussion with the Centre on Regulation in Europe and Dr Sally Broughton Micova. We heard a lot about interconnectedness between some of these smaller services and the impact in terms of amplification across other social media sites.

We heard in the UK from some of the larger services about their concerns about the activities of smaller services. You might say “They would say that, wouldn’t they?” but they were pretty convincing. We heard from HOPE not Hate, the Antisemitism Policy Trust and Stonewall, stressing the role of alternative services.

Of course, we know that these amendments today—some of them sponsored by the Mental Health Foundation, as the noble Lord, Lord Griffiths, said, and Samaritans—have a very important provenance. They recognise that these are big problems. I hope that the Minister will think strongly about this. The injunction from the noble Lord, Lord Allan, to consider how all this is going to work in practice is very important. I very much hope that when we come to consider how this works in practical terms that the Minister will think very seriously about the way in which risk is to the fore— the more nuanced approach that we suggested—and the whole way that profiling by Ofcom will apply. I think that is going to be extremely important as well. I do not think we have yet got to the right place in the Bill which deals with these risky sites. I very much hope that the Minister will consider this in the quite long period between now and when we next get together.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a good little debate with some excellent speeches, which I acknowledge. Like the noble Lord, Lord Clement-Jones, I was looking at the Joint Committee’s report. I concluded that one of the first big issues we discussed was how complicated the categorisation seemed in relation to the task that was being set for Ofcom. We comforted ourselves with the thought that if you believe that this is basically a risk-assessment exercise and that all the work Ofcom will subsequently do is driven by its risk assessments and its constant reviewing of them, then the categorisation is bound to fall down because the risks will reveal the things that need to happen.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 23rd May 2023 Lords Chamber

[Lord Bethell (Con)]

My Lords, I speak to support my noble friend Lady Stowell and the noble Lord, Lord Stevenson. I would like to share two insights: one a piece of experience from my role as a junior Minister, and one as it bears down on the Bill.

As a junior Health Minister responsible for innovation and life sciences, it was my responsibility to look after 22 arm’s-length bodies, including the MHRA—an incredibly powerful regulator, possibly as powerful and important as Ofcom is, and certainly will be under this new Bill. As the junior Minister, you are under huge pressure from civil society, from the pharma industry and from noble Lords—some of whom I see in the Chamber today—who all have extremely strong opinions about the regulation of medicines. They also have, at times, very important insights about patients and what might be able to be done if certain innovative medicines could be accelerated. The great thing about being the Life Sciences Minister is that there is nothing you can do about it whatever. Your hands are tied. The MHRA obeys science and the regulation of science and not, I am pleased to say, Ministers, because Ministers are not good people to judge the efficacy and safety of medicines.

My advice to the Minister is to embrace the Bethell principle: that it is a huge relief not to be able to interfere in the day-to-day operations of your regulator. I remember speaking at a G7 meeting of Health Ministers to one of my compadres, who expressed huge envy for the British system because he had demonstrators and political donors on his back night and day, trying to get him to fix the regulations one way or the other. That is my point about the day-to-day management and implementation of policy.

When it comes to the objectives of the regulator, the Bill maybe leaves scope for some improvement. I thought my noble friend put it extremely well: it is where Parliament needs to have a voice. We have seen that on the subject of age verification for porn—a subject I feel very strongly about—where, at the moment, Parliament is leaving it to the regulator to consult industry, users of the internet and wider civic society to determine what the thresholds for age verification should be. That is a mistake; it is not the right way round to do things. It is where Parliament should have a voice, because these are mandatory population-wide impositions. We are imposing them on the population, and that is best done by Parliament, not the regulator. It needs the heft of Parliament when it comes to imposing and enforcing those regulations. If you do not have that parliamentary heft, the regulator may be on a granite island but it would be a very lonely island without the support it needs when taking on extremely powerful vested interests. That is why Parliament needs a reach into the system when it comes to objective setting.

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Bethell, who is clearly passionate about this aspect. As the noble Baroness, Lady Harding, said, this is one of the most important groups of amendments that we have to debate on the Bill, even though we are on day eight of Committee. As she said, it is about the right assignment of responsibilities, so it is fundamental to the way that the Bill will operate.

My noble friend Lord Allan brilliantly summed up many of the arguments, and he has graphically described the problem of ministerial overreach, as did the noble Baroness, Lady Harding. We on these Benches strongly support the amendments put forward by the noble Lord, Lord Stevenson, and those put forward by the noble Baroness, Lady Stowell. Obviously, there is some difference of emphasis. They each follow the trail of the different committees of which their proposers were members, which is entirely understandable. I recall that the noble Lord, Lord Gilbert, was the hinge between the two committees—and brilliantly he did that. I very much hope that, when we come back at the next stage, if the Minister has not moved very far, we will find a way to combine those two strands. I think they are extremely close—many noble Lords have set out where we are on accountability and oversight.

Strangely, we are not trying to get out of the frying pan of the Secretary of State being overbearing and move to where we have no parliamentary oversight. Both the noble Baroness, Lady Stowell, and the noble Lord, Lord Stevenson, are clearly in favour of greater oversight of Ofcom. The question is whether it is oversight of the codes and regulation or of Ofcom itself. I think we can find a way to combine those two strands. In that respect, I entirely agree with the noble Baroness, Lady Fox: it is all about making sure that we have the right kind of oversight.

I add my thanks to Carnegie UK. The noble Lord, Lord Stevenson, and the noble Baroness, Lady Stowell, set out the arguments, and we have the benefit of the noble Baroness’s letter to the Secretary of State of 30 January, which she mentioned in her speech. They have set out very clearly where speakers in this debate unanimously want to go.

The Government have suggested some compromise on Clause 39. As the noble Lord, Lord Stevenson said, we have not seen any wording for that, but I think it is highly unlikely that that, by itself, will satisfy the House when we come to Report.

There are many amendments here which deal with the Secretary of State’s powers, but I believe that the key ones are the product of both committees, which is about the Joint Committee. If noble Lords read the Government’s response to our Joint Committee on the draft Bill, they will see that the arguments given by the Government are extremely weak. I think it was the noble Baroness, Lady Stowell, who used the phrase “democratic deficit”. That is exactly what we are not seeking: we are trying to open this out and make sure we have better oversight and accountability. That is the goal of the amendments today. We have heard from the noble Viscount, Lord Colville, about the power of lobbying by companies. Equally, we have heard about how the Secretary of State can be overbearing. That is the risk we are trying to avoid. I very much hope that the Minister sees his way to taking on board at least some of whichever set of amendments he prefers.

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

My Lords, the amendments concern the independence of Ofcom and the role of parliamentary scrutiny. They are therefore indeed an important group, as those things will be vital to the success of the regime that the Bill sets up. Introducing a new, ground-breaking regime means balancing the need for regulatory independence with a transparent system of checks and balances. The Bill therefore gives powers to the Secretary of State comprising a power to direct Ofcom to modify a code of practice, a power to issue a statement of strategic priorities and a power to issue non-binding guidance to the regulator.

These powers are important but not novel; they have precedent in the Communications Act 2003, which allows the Secretary of State to direct Ofcom in respect of its network and spectrum functions, and the Housing and Regeneration Act 2008, which allows the Secretary of State to make directions to the Regulator of Social Housing to amend its standards. At the same time, I agree that it is important that we have proportionate safeguards in place for the use of these powers, and I am very happy to continue to have discussions with noble Lords to make sure that we do.

Amendment 110, from the noble Lord, Lord Stevenson, seeks to introduce a lengthier process regarding parliamentary approval of codes of practice, requiring a number of additional steps before they are laid in Parliament. It proposes that each code may not come into force unless accompanied by an impact assessment covering a range of factors. Let me reassure noble Lords that Ofcom is already required to consider these factors; it is bound by the public sector equality duty under the Equality Act 2010 and the Human Rights Act 1998 and must ensure that the regime and the codes of practice are compliant with rights under the European Convention on Human Rights. It must also consult experts on matters of equality and human rights when producing its codes.

Amendment 110 also proposes that any designated Select Committee in either House has to report on each code and impact assessment before they can be made. Under the existing process, all codes must already undergo scrutiny by both Houses before coming into effect. The amendment would also introduce a new role for the devolved Administrations. Let me reassure noble Lords that the Government are working closely with them already and will continue to do so over the coming months. As set out in Schedule 5 to the Scotland Act 1998, however, telecommunications and thereby internet law and regulation is a reserved policy area, so input from the devolved Administrations may be more appropriately sought through other means.

Amendments 111, 113, 114, 115, and 117 to 120 seek to restrict or remove the ability of the Secretary of State to issue directions to Ofcom to modify draft codes of practice. Ofcom has great expertise as a regulator, as noble Lords noted in this debate, but there may be situations where a topic outside its remit needs to be reflected in a code of practice. In those situations, it is right for the Government to be able to direct Ofcom to modify a draft code. This could, for example, be to ensure that a code reflects advice from the security services, to which Ofcom does not have access. Indeed, it is particularly important that the Secretary of State be able to direct Ofcom on matters of national security and public safety, where the Government will have access to information which Ofcom will not.

I have, however, heard the concerns raised by many in your Lordships’ House, both today and on previous occasions, that these powers could allow for too much executive control. I can assure your Lordships that His Majesty’s Government are committed to protecting the regulatory independence of Ofcom, which is vital to the success of the framework. With this in mind, we have built a number of safeguards into the use of the powers, to ensure that they do not impinge on regulatory independence and are used only in limited circumstances and for the appropriate reasons.

I have heard the strong feelings expressed that this power must not unduly restrict regulatory independence, and indeed share that feeling. In July, as noble Lords noted, the Government announced our intention to make substantive changes to the power; these changes will make it clear that the power is for use only in exceptional circumstances and will replace the “public policy” wording in Clause 39 with a defined list of reasons for which a direction can be made. I am happy to reiterate that commitment today, and to say that we will be making these changes on Report when, as the noble Lord, Lord Clement-Jones, rightly said, noble Lords will be able to see the wording and interrogate it properly.

Additionally, in light of the debate we have just had today—

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 23rd May 2023 Lords Chamber

Moved by

[Lord Clement-Jones]

124: Clause 49, page 47, line 6, at end insert—
“(2A) Subsection (2)(e) does not apply in respect of a regulated user-to-user service which is operated by an organisation which—(a) is a relevant publisher (within the meaning of section 41 of the Crime and Courts Act 2013), and(b) has an annual UK turnover in excess of £100 million.”Member’s explanatory statement
This amendment seeks to ensure the comment sections of the largest newspaper websites are subject to the Online Safety Bill’s regulatory regime.

[Lord Clement-Jones (LD)]

My Lords, I shall speak to Amendment 124 but also to Amendments 126 and 227, all of which were tabled by my noble friend Lord McNally and supported by the noble Lord, Lord Lipsey. Sadly, they are both unable to do battle today, for health reasons, and I start by wishing them both a speedy recovery. I hope that I at least partly do justice to their intentions and to these amendments today.

These amendments are designed to address significant loopholes in the Bill which have been very clearly pointed out by Hacked Off, Impress—the press regulator—and the Press Recognition Panel. These loopholes risk enabling extremist publishers to take advantage of the overbroad “recognised news publisher” exemption and allow hatred and other online harms to spread on some of the most popular social media forums online—the newspaper comment sections. Amendment 124 would remove comment sections operated by news websites where the publisher has a UK turnover of more than £100 million from the exemption for regulated user-generated content.

Some of the most harmful online content is in newspaper comment sections, which are in fact social media forums themselves and are read by millions of readers every day. Hacked Off has found examples of misogyny, explicit anti-Semitic language, Holocaust denial and more. Women in public life are also the target of misogyny in these comments sections. Professor Corinne Fowler, an academic who was criticised by some newspapers after contributing to a National Trust report, describing her experience, wrote that

“unregulated comments beneath articles, including the Telegraph and The Times as well as the Daily Mail and the Express … contained scores of suggestions about how to kill or injure me. Some were general ideas, such as hanging, but many were gender-specific, saying that I should be burnt at the stake like a witch … without me knowing, my son (then 12 years old) read these reader comments. He became afraid for my safety. The comments were easily accessible: he googled ‘Corinne Fowler National Trust’ and scrolled below the articles. No child should have to deal with hate speech directed at a parent”.

Amendment 126 would have the effect of incentivising newspapers to sign up to an independent regulator. It would expand the definition of a “recognised news publisher” to incorporate any entity that is a member of an approved regulator, while excluding publishers that are not members of such a regulator, unless they are broadcasters and regulated by Ofcom. Recognised news publishers enjoy wide exemptions in the Bill. Their content is not only protected from being taken down by platforms, but a new provision will require platforms to actively consult media publishers before removing their content. As a result, news publishers will enjoy greater free speech rights under the Bill than private citizens.

The criteria to qualify as a “recognised news publisher” is different for broadcasters and other media. For broadcasters, outlets must be regulated by Ofcom. For non-broadcast media, outlets need only meet a list of vague criteria: have a standards code, which could say anything; have a complaints process, which could also say anything; have a UK office; have staff; and not be a sanctioned title. As a result, a host of extremist and disinformation publishing websites may qualify immediately, or with minor administrative changes, for this rather generous exemption. For example, conspiracy theorist and racist David Icke’s website could qualify with minor administrative changes. He would be free to propagate his dangerous and, in many cases, anti-Semitic conspiracies on social media. Heritage and Destiny, an openly racist website, would likewise be able to qualify with minor changes and spread racial hatred on social media. Infowars could open up a UK office, qualify and spread harmful content on social media.

This amendment would replace that vague list of criteria with the simple requirement that, to access the exemption, non-broadcast media publishers must be in a PRP-approved independent regulator. The effect would be that extremists and harmful publishers would not be able to access the exemption. All publishers would have the same free speech rights as everyone else, unless they are otherwise regulated under the charter system or Ofcom in the case of broadcasters.

Amendment 227 requires Ofcom’s reporting on the impact of the regulatory regime on the availability and treatment of news publishers and journalistic content to also cover what impact the news publisher exemption and journalistic content duty have on the regime’s efficacy. The Bill requires Ofcom to publish a report on whether the new regime will harm freedom of the press. This is despite the fact the Bill already goes to extraordinary lengths to protect the interests of the press. This very modest amendment would require Ofcom’s report to also query whether the news publisher exemption is undermining the regulatory regime.

Impress, which is the UK’s only press regulator approved by the Press Recognition Panel under royal charter, says that the Bill leaves the public vulnerable and exposed to online harms and therefore falls short of the Government’s aim of making the UK the safest place to be online. It has summarised the three ways in which the current Bill is in danger of undermining its principal function—to protect the public from online harms—which could be resolved by these amendments.

First, the Bill creates an uneven playing field. A poor definition of what constitutes a news publisher threatens to undermine the public protection benefits of the Bill. Secondly, the Bill misses an opportunity to fight misinformation or disinformation. The Bill undermines industry standards and fails to distinguish journalism from fake news. Thirdly, the Bill could be easily used as a cover to spread serious harms. The Bill’s current journalism exemptions create dangerous loopholes which could easily be exploited to spread misinformation and disinformation. Publishers should be required to demonstrate compliance and oversight in relation to their published code of conduct and complaints policy.

If we needed any more persuasion, a letter to me from David Wolfe KC, the chair of the PRP, provides an additional twist:

“I am writing to draw your attention to the Bill’s potential impact on the regulation of the press and news publishers in the UK. Specifically, to Clause 50 of the Bill, which explains the circumstances in which news publishers are taken out of the proposed Ofcom regulatory regime … it does not specify any minimum standards and does not specify who is to assess publishers. The practical implication, though, is that Ofcom—whose board are appointed by the Secretary of State … and which operates under their direct oversight—will not only set the minimum requirements but also undertake the assessment. Paradoxically, the possibility of political interference, which Lord Leveson and the Royal Charter set out to avoid (in the Royal Charter and PRP framework) might now be directly introduced for all UK news publishers”.


That means that the national press, which has avoided regulation, is coming under the regulation of Ofcom. I will be very interested to hear what a number of noble Lords might have to say on that subject.

Taken together, these amendments would address serious flaws in the Bill, and I very much hope that the Government’s response will be to reflect on them. I beg to move.

[Lord Black of Brentwood (Con)]

My Lords, I join the noble Lord in wishing the noble Lords, Lord McNally and Lord Lipsey, well. I hope they are watching us on the television—perhaps as a cure for insomnia at this time of night. I declare my interest as deputy chairman of the Telegraph Media Group and of the Regulatory Funding Company and note my other interests set out in the register. I must admit I was gripped by a sense of déjà vu when I saw these amendments on the Marshalled List, because I fear they risk catapulting us back into the debate over matters which were settled a decade ago in response to events which took place two decades or more ago.

Before coming on to the detail of some of the amendments that the noble Lord set out, I will make a few general points which relate principally to Amendments 126 and 227 but impinge on the whole group.

First, I do not believe that this Bill, which is about the enormous, unaccountable and unregulated platforms and the dangers they pose to the vulnerable, is the place to reopen the debate about press regulation. Later in the year there will be a media Bill, recently published in draft, which will contain provisions to repeal Section 40 of the Crime and Courts Act 2013. If noble Lords want to discuss the whole issue of the royal charter and punitive legislation against the press, I respectfully suggest that that is the time and place to do so.

Secondly, this Bill has widespread support. The vast majority of people agree with its aims, even if we have disagreements at the edges. If the Bill ceases to be the Online Safety Bill and becomes the state regulation of the press Bill, it will become enormously controversial not just here but internationally.

That is my third point: the enormous global ramifications of seeking to use novel online legislation to force state-backed regulation on the press. The Crime and Courts Act 2013 and the establishment of the royal charter were roundly condemned by international press freedom organisations worldwide—the very same press freedom organisations we all claim to support when talking about the safety of journalists or the way in which the press is controlled in authoritarian regimes. Those same organisations condemned it utterly and they would look on with incredulity and horror if this, the first brave piece of legislation in the world to tackle online safety, was corrupted in this way and in a manner which sent the wrong signals to undemocratic regimes worldwide that it is okay to censor the press in the name of making the platforms accountable.

I was going to make a few comments about IPSO, which the noble Lord raised, but I see that the noble Lord, Lord Faulks, is in his place and I am sure he will make them much more effectively than I would.

The other general point is that this group of amendments flies in the face of the most fundamental Leveson recommendation. In his report, he stressed that it was essential that the system of self-regulation remained voluntary. What these proposals do is the antithesis of that. In effect, they hold a gun to the head of the industry and say, “Either you join a state-approved regulator, or you’re subject to the statutory control of Ofcom”. There is no voluntary element in that at all because either route ends up in a form of state regulation. That is Hobson’s choice.

Finally, as I have said to this House before, and I hoped I would never have to say again, the vast majority of the press will not under any circumstances join a regulator which is authorised by a state body and underpinned by the threat of legislation. Even Sir Brian Leveson said that he recognised that this was a matter of principle. That principle is that the press cannot be free if it is subject to any form of statutory control, however craftily concealed. That position has existed for many centuries and is threatened by the amendments. The reason for that is that if Amendment 126, and some of the others, went through, none of the major publishers at national, regional and local level, nor magazines, would be exempt from the terms of the Bill and would become subject to the statutory control of Ofcom—something that Ofcom has always made clear that it wants nothing to do with—and the prospect of unlimited penal sanctions. That is the end of a free press, by any definition.

I will very briefly discuss a few specifics. Amendment 124 seeks to bring the comments sections of basically all national newspaper websites within the Bill’s statutory regime. These are already regulated by IPSO, unless the noble Lord, Lord Faulks, corrects me, and they come under its jurisdiction as soon as a complaint is made to the publishers, even if they are not moderated. Unlike social media, which is entirely different in its reach and impact, editors are legally responsible for what appears on their websites, which is why in most cases there are strong content moderation procedures in place. That is why comments sections rightly fall within the limited functionality exemption in the Bill, because there is such limited scope for harm. The impact of Amendment 124 would be to introduce confusing and complex double regulation of comments sections on websites, to the detriment of the public who wish to engage in legitimate debate.

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[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for his responses to the number of different issues that he has been asked about after he sat down, so to speak, which I think have been taken on board. I thank the noble Baronesses, Lady Gohir and Lady Grey-Thompson, and the noble Lord, Lord Allan, for their support for these amendments.

It is also a pleasure to see the noble Lord, Lord Black, who has clearly been lured out at this late hour—perhaps not so unwillingly; it gives him a chance to rehearse some of the arguments for the media Bill coming down the track. Along with the noble Lord, Lord Faulks, I am sure he will enjoy the media Bill when it comes. I had many happy hours sitting next door to the noble Lord, Lord Black, on the Joint Committee on the draft Bill, on which I may say that we agreed on most things.

But the fact is that one person’s strong exemptions is another person’s special privileges, and that very much applies in these circumstances as regards what I think the noble Baroness, Lady Fox, would call the mainstream media. I enjoyed what the noble Baroness had to say, because she came round to some kind of agreement at the end on what we might call mainstream media exceptionalism, which is a fair description. There is an element of cakeism about the way that the mainstream media seem to want to have it.

The Minister talked about low-risk services, and I think that was the reason why we had these questions asked about risk assessment. How does the Minister know that these below-the-line comments sections are low-risk unless a risk assessment has been made? We heard from the noble Baronesses, Lady Grey-Thompson and Lady Gohir, about the content of some of those comments sections. That does not sound low-risk to me at all, and I think that is the basis of their support for the amendments. When the Minister says it is not proportionate to regulate these comments sections, he is assuming they are low-risk services without much evidence. He threw a small bone by saying that sites can be held liable for illegal content, but that is a relatively small bone in those circumstances.

I took some comfort from the way that the noble Baroness, Lady Stowell, talked about the need for constant evaluation. Perish the thought, but we may well need an online safety Bill number 2; I just hope it is not too soon and that we have time for a little evaluation of how this Bill operates. That is why I am pretty keen that we should get this Bill into the best possible shape.

I thought what the noble Lord, Lord Knight, had to say about post-legislative scrutiny was very apposite, but the hour is late so I will not go through too many other aspects of this. This has been a good debate. I hope the media Bill is not déjà vu all over again, but we will see what happens when we get to it. In the meantime, I beg leave to withdraw the amendment.

Amendment 124 withdrawn.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 16th May 2023 Lords Chamber

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

My Lords, the amendments in this group consider the role of collaboration and consultation in Ofcom’s approach. The proposals range in their intent, and include mandating additional roles for young people in the framework, adding new formal consultation requirements, and creating powers for Ofcom to work with other organisations.

I reassure noble Lords that the Government take these concerns extremely seriously. That is why the Bill already places the voices of experts, users and victims at the heart of the regime it establishes. In fact, the intent of many of the amendments in this group will already be delivered. That includes Ofcom working with others effectively to deliver the legislation, consulting on draft codes of practice, and having the ability to designate specific regulatory functions to other bodies where appropriate. Where we can strengthen the voices of users, victims or experts—without undermining existing processes, reducing the regulator’s independence or causing unacceptable delays—the Government are open to this. That is why I am moving the amendment today. However, as we have heard in previous debates, this is already a complex regulatory framework, and there is a widespread desire for it to be implemented quickly. Therefore, it is right that we guard against creating additional or redundant requirements which could complicate the regime or unduly delay implementation.

I turn to the amendment in my name. As noble Lords know, Ofcom will develop codes of practice setting out recommended measures for companies to fulfil their duties under the Bill. When developing those codes, Ofcom must consult various persons and organisations who have specific knowledge or expertise related to online harms. This process will ensure that the voices of users, experts and others are reflected in the codes, and, in turn, that the codes contain appropriate and effective measures.

One of the most important goals of the Bill, as noble Lords have heard me say many times, is the protection of children. It is also critical that the codes reflect the views of victims of online abuse, as well as the expertise of those who have experience in managing them. Therefore, the government amendment seeks to name the Commissioner for Victims and Witnesses, the domestic abuse commissioner and the Children’s Commissioner as statutory consultees under Clause 36(6). Ofcom will be required to consult those commissioners when preparing or amending a code of practice.

Listing these commissioners as statutory consultees will guarantee that the voices of victims and those who are disproportionately affected by online abuse are represented when developing codes of practice. This includes, in particular, women and girls—following on from our debate on the previous group—as well as children and vulnerable adults. This will ensure that Ofcom’s codes propose specific and targeted measures, such as on illegal content and content that is harmful to children, that platforms can take to address abuse effectively. I therefore hope that noble Lords will accept it.

I will say a little about some of the other amendments in this group before noble Lords speak to them. I look forward to hearing how they introduce them.

I appreciate the intent of Amendment 220E, tabled by the noble Lord, Lord Clement-Jones, and my noble friend Lady Morgan of Cotes, to address the seriousness of the issue of child sexual exploitation and abuse online. This amendment would allow Ofcom to designate an expert body to tackle such content. Where appropriate and effective, Section 1(7) of the Communications Act 2003 and Part II of the Deregulation and Contracting Out Act 1994 provide a route for Ofcom to enter into co-regulatory arrangements under the online safety framework.

There are a number of organisations that could play a role in the future regulatory framework, given their significant experience and expertise on the complex and important issue of tackling online child sexual exploitation and abuse. This includes the Internet Watch Foundation, which plays a pivotal role in the detection and removal of child sexual abuse material and provides vital tools to support its members to detect this abhorrent content.

A key difference from the proposed amendment is that the existing route, following consultation with Ofcom, requires an order to be made by a Minister, under the Deregulation and Contracting Out Act 1994, before Ofcom can authorise a co-regulator to carry out regulatory functions. Allowing Ofcom to do this, without the need for secondary legislation, would allow Ofcom to bypass existing parliamentary scrutiny when contracting out its regulatory functions under the Bill. By contrast, the existing route requires a draft order to be laid before, and approved by, each House of Parliament.

The noble Lord, Lord Knight of Weymouth, tabled Amendment 226, which proposes a child user advocacy body. The Government are committed to the interests of child users being represented and protected, but we believe that this is already achieved through the Bill’s existing provisions. There is a wealth of experienced and committed representative groups who are engaged with the regulatory framework. As the regulator, Ofcom will also continue to consult widely with a range of interested parties to ensure that it understands the experience of, and risks affecting, children online. Further placing children’s experiences at the centre of the framework, the Government’s Amendment 98A would name the Children’s Commissioner as a statutory consultee for the codes of practice. The child user advocacy body proposed in the noble Lord’s Amendment 226 may duplicate the Children’s Commissioner’s existing functions, which would create uncertainty, undermining the effectiveness of the Children’s Commissioner’s Office. The Government are confident that the Children’s Commissioner will effectively use her statutory duties and powers to understand children’s experiences of the digital realm.

For the reasons that I have set out, I am confident that children’s voices will be placed at the heart of the regime, with their interests defended and advocated for by the regulator, the Children’s Commissioner, and through ongoing engagement with civil society groups.

Similarly, Amendment 256, tabled by the noble Baroness, Lady Bennett of Manor Castle, seeks to require that any Ofcom advisory committees established by direction from the Secretary of State under Clause 155 include at least two young people. Ofcom has considerable experience in setting up committees of this kind. While there is nothing that would preclude committee membership from including at least two young people, predetermining the composition of any committee would not give Ofcom the necessary space and independence to run a transparent process. We feel that candidates should be appointed based on relevant understanding and technical knowledge of the issue in question. Where a board is examining issues with specific relevance to the interests of children, we would expect the committee membership to reflect that appropriately.

I turn to the statement of strategic priorities. As I hope noble Lords will agree, future changes in technology will likely have an impact on the experience people have online, including the nature of online harms. As provided for by Clause 153, the statement of strategic priorities will allow the Secretary of State to set out a statement of the Government’s strategic priorities in relation to online safety. This ensures that the Government can respond to changes in the digital and regulatory landscape at a strategic level. A similar power exists for telecommunications, the management of the radio spectrum, and postal services.

Amendments 251 to 253 seek to place additional requirements on the preparation of a statement before it can be designated. I reassure noble Lords that the existing consultation and parliamentary approval requirements allow for an extensive process before a statement can be designated. These amendments would introduce unnecessary steps and would move beyond the existing precedent in the Communications Act when making such a statement for telecommunications, the management of the radio spectrum, and postal services.

Finally, Amendment 284, tabled by the noble Lord, Lord Stevenson of Balmacara, proposes changes to Clause 171 on Ofcom’s guidance on illegal content judgments. Ofcom is already required to consult persons it considers appropriate before producing or revising the guidance, which could include the groups named in the noble Lord’s amendment. This amendment would oblige Ofcom to run formal public consultations on the illegal content guidance at two different stages: first, at a formative stage in the drafting process, and then before publishing a final version. These consultations would have to be repeated before subsequently amending or updating the guidance in any way. This would impose duplicative, time-consuming requirements on the regulator to consult, which are excessive when looking at other comparable guidance. The proposed consultations under this amendment would ultimately delay the publication of this instrumental guidance.

I will listen to what noble Lords have to say when they speak to their amendments, but these are the reasons why, upon first reading, we are unpersuaded by them.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for opening the group. This is a slightly novel procedure: he has rebutted our arguments before we have even had a chance to put them—what is new? I hope he has another speech lined up for the end which accepts some of the arguments we put, to demonstrate that he has listened to all the arguments made in the debate.

I will speak mainly to Amendments 220E and 226, ahead of the noble Baroness, Lady Kidron; I understand that the noble Baroness, Lady Merron, will be speaking at the end of the group to Amendment 226. I am very grateful to the noble Baroness, Lady Morgan, for signing Amendment 220E; I know she feels very strongly about this issue as well.

As the Minister said, this amendment is designed to confirm the IWF’s role as the recognised body for dealing with notice and take-down procedures for child sexual abuse imagery in the UK and to ensure that its long experience and expertise continues to be put to best use. In our view, any delay in establishing the roles and responsibilities of expert organisations such as the IWF in working with Ofcom under the new regulatory regime risks leaving a vacuum in which the risks to children from this hateful form of abuse will only increase. I heard what the Minister said about the parliamentary procedure, but that is a much slower procedure than a designation by Ofcom, so I think that is going to be one of the bones of contention between us.

The Internet Watch Foundation is a co-regulatory body with over 25 years of experience working with the internet industry, law enforcement and government to prevent the uploading of, and to disable public access to, known child sexual abuse, and to secure the removal of indecent images and videos of children from the internet. The organisation has had some considerable success over the last 25 years, despite the problem appearing to be getting worse globally.

In 2022, it succeeded in removing a record 255,000 web pages containing child sexual abuse. It has also amassed a database of more than 1.6 million unique hashes of child sexual abuse material, which has been provided to the internet industry to keep its platforms free from such material. In 2020, the Independent Inquiry into Child Sexual Abuse concluded that, in the UK, the IWF

“sits at the heart of the national response to combating the proliferation of indecent images of children. It is an organisation that deserves to be acknowledged publicly as a vital part of how, and why, comparatively little child sexual abuse material is hosted in the UK”.

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[Lord Parkinson of Whitley Bay (Con)]

I am grateful to noble Lords who have spoken to their amendments. Regarding the lead amendment in the group, I take on board what was said about its inevitable pre-emption—something that I know all too well from when the boot is on the other foot in other groups. However, I have listened to the points that were made and will of course respond.

I join the tributes rightly paid by noble Lords to the Internet Watch Foundation. The Government value its work extremely highly and would support the use of its expertise and experience in helping to deliver the aims of the Bill. My noble friend Lady Morgan of Cotes is right to say that it is on the front line of this work and to remind us that it encounters some of the most horrific and abhorrent content in the darkest recesses of the internet—something that I know well from my time as an adviser at the Home Office, as well as in this capacity now. Both the Secretary of State for Science, Innovation and Technology and the Minister for Safeguarding at the Home Office recently provided a foreword to the foundation’s latest annual report.

Clearly, Ofcom will need a wide variety of relationships with a range of organisations. Ofcom has been in regular contact with the Internet Watch Foundation, recognising its significant role in supporting the objectives of online safety regulation, and is discussing a range of options to make the best use of its expertise. The noble Lord, Lord Clement-Jones, asked what consultation and discussion is being had. We support the continuation of that engagement and are in discussions with the Internet Watch Foundation ourselves to understand how it envisages its role in supporting the regulatory environment. No decisions have been made on the co-regulatory role that other organisations may play. The Government will work with Ofcom to understand where it may be effective and beneficial to delivering the regulatory framework. Careful assessment of the governance, independence and funding of any organisations would be needed if co-designation were to be considered, but officials from the Department for Science, Innovation and Technology and the Home Office are in discussion with the IWF in relation to a memorandum of understanding to support ongoing collaboration.

On the designation of regulatory functions, we are satisfied that the powers under the Communications Act and the Deregulation and Contracting Out Act are sufficient, should other bodies be required to deliver specific aspects of the regime, so we do not see a need to amend the Bill in the way the amendments in this group suggest. Those Acts require an order from the Minister in order to designate any functions. The Minister has to consult Ofcom before making the order, and that is the mechanism that was used to appoint the Advertising Standards Authority to regulate broadcast advertising. It remains appropriate for Parliament to scrutinise the delivery of these important regulatory functions; accordingly, such an order cannot be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.

The noble Baroness, Lady Merron, dwelt on the decision not to include a child user advocacy body. As I said in my earlier remarks and in relation to other groups, the Bill ensures that children’s voices will be heard and that what they say will be acted on. Ofcom will have statutory duties requiring it to understand the opinions and experiences of users, including children, by consulting widely when developing its codes. Ofcom will also have the flexibility to establish other mechanisms for conducting research about users’ experience. Additionally, the super-complaints process, which we began discussing this afternoon, will make sure that entities, including those that represent the interests of children, will have their voices heard and will help Ofcom recognise and eliminate systemic failings.

We are also naming the Children’s Commissioner as a statutory consultee for Ofcom in developing its codes of practice. A further new child user advocacy body would encroach on the wider statutory functions of the Children’s Commissioner. Both bodies would have similar responsibilities and powers to represent the interests of child users of regulated services, to protect and promote the interests of child users of regulated services, and to be a statutory consultee for the drafting and amendment of Ofcom’s codes of practice.

The noble Baroness, Lady Kidron, when discussing the input of the Children’s Commissioner into the regulatory framework, suggested that it was a here and now issue. She is right: the Children’s Commissioner will represent children’s views to Ofcom in preparing the codes of practice to ensure that they are fully informing the regime, but the commissioner will also have a continuing role, as they will be the statutory consultee on any later amendments to the codes of practice relating to children. That will ensure that they can engage in the ongoing development of the regime and can continue to feed in insights on emerging risks identified through the commissioner’s statutory duty to understand children’s experiences.

The Bill further ensures that new harms and risks to children are proactively identified by requiring that Ofcom make arrangements to undertake research about users’ experiences on regulated services. This will build on the significant amount of research that Ofcom already does, better to understand children’s experience online, particularly their experiences of online harms.

The super-complaints process will enable an eligible entity to make a complaint to Ofcom regarding a provider or providers that cause significant harm or significant adverse impact on users, including children. This will help Ofcom to recognise and eliminate systemic failings, including those relating to children, and will ensure that children’s views and voices continue to inform the regime as it is developed.

The Bill will also require that Ofcom undertake consumer consultation in relation to regulated services. This will, in effect, expand the scope of the Communications Consumer Panel to online safety matters, and will ensure that the needs of users, including children, are at the heart of Ofcom’s regulatory approach.

I draw noble Lords’ attention to the provisions of Clause 141(2), which states that Ofcom must make arrangements to ascertain

“the experiences of United Kingdom users of regulated services”.

That, of course, includes children. I hope, therefore, that noble Lords will be satisfied that the voices of children are indeed being listened to throughout the operation of the Bill. However, we have high regard for the work of the Internet Watch Foundation. I hope that noble Lords will be willing not to press their amendments—after the noble Lord, Lord Clement-Jones, asks his question.

[Lord Clement-Jones (LD)]

My Lords, I am in the slightly strange position of not having moved the amendment, but I want to quickly respond. I was slightly encouraged by what the Minister said about Ofcom having been in regular contact with the IWF. I am not sure that that is mutual; maybe Ofcom thinks it is in good contact with the IWF, but I am not sure the IWF thinks it is in good contact with Ofcom. However, I am encouraged that the Minister at least thinks that that has been the case and that he is encouraging consultation and the continuation of engagement.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 16th May 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I had better start by declaring an interest. It is a great pleasure to follow the noble Baroness, Lady Harding, because my interest is directly related to the ombudsman she has just been praising. I am chairman of the board of the Trust Alliance Group, which runs the Energy Ombudsman and the telecoms ombudsman. The former was set up under the Consumers, Estate Agents and Redress Act 2007 and the latter under the Communications Act 2003.

Having got that off my chest, I do not have to boast about the efficacy of ombudsmen; they are an important institution, they take the load off the regulator to a considerable degree and they work closely with the participating companies in the schemes they run. On balance, I would prefer the Consumers, Estate Agents and Redress Act scheme because it involves a single ombudsman, but both those ombudsmen demonstrate the benefit in their sectors.

The noble Lord, Lord Stevenson, pretty much expressed the surprise that we felt when we read the Government’s response to what we thought was a pretty sensible suggestion in the Joint Committee’s report. He quoted it, and I am going to quote it again because it is such an extraordinary statement:

“An independent resolution mechanism such as an Ombudsman is relatively untested in areas of non-financial harm”.


If you look at the ones for which I happen to have some responsibility, and at the other ombudsmen— there is a whole list we could go through: the Legal Ombudsman, the Local Government and Social Care Ombudsman, the Parliamentary and Health Service Ombudsman—there are a number who are absolutely able to take a view on non-financial matters. It is a bit flabbergasting, if that is a parliamentary expression, to come across that kind of statement in a government response.

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[Viscount Camrose (Con)]

They would go to the service provider in the first instance and then—

[Lord Clement-Jones (LD)]

What recourse would they have, if Ofcom will not deal with individual complaints in those circumstances?

[Viscount Camrose (Con)]

I am happy to meet and discuss this. We are expanding what they are able to receive today under the existing arrangements. I am happy to meet any noble Lords who wish to take this forward to help them understand this—that is probably best.

Amendments 287 and 289 from the noble Baroness, Lady Fox of Buckley, seek to remove the provision for super-complaints from the Bill. The super-complaints mechanism is an important part of the Bill’s overall redress mechanisms. It will enable entities to raise concerns with Ofcom about systemic issues in relation to regulated services, which Ofcom will be required to respond to. This includes concerns about the features of services or the conduct of providers creating a risk of significant harm to users or the public, as well as concerns about significant adverse impacts on the right to freedom of expression.

On who can make super-complaints, any organisation that meets the eligibility criteria set out in secondary legislation will be able to submit a super-complaint to Ofcom. Organisations will be required to submit evidence to Ofcom, setting out how they meet these criteria. Using this evidence, Ofcom will assess organisations against the criteria to ensure that they meet them. The assessment of evidence will be fair and objective, and the criteria will be intentionally strict to ensure that super-complaints focus on systemic issues and that the regulator is not overwhelmed by the number it receives.

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[Viscount Camrose (Con)]

Overall, the super-complaints mechanism is more for groupings of complaints and has a broader range than the individual complaints process, but I will consider that point going forward.

Many UK regulators have successful super-complaints mechanisms which allow them to identify and target emerging issues and effectively utilise resources. Alongside the Bill’s research functions, super-complaints will perform a vital role in ensuring that Ofcom is aware of the issues users are facing, helping them to target resources and to take action against systemic failings.

On the steps required after super-complaints, the regulator will be required to respond publicly to the super-complaint. Issues raised in the super-complaint may lead Ofcom to take steps to mitigate the issues raised in the complaint, where the issues raised can be addressed via the Bill’s duties and powers. In this way, they perform a vital role in Ofcom’s horizon-scanning powers, ensuring that it is aware of issues as they emerge. However, super-complaints are not linked to any specific enforcement process.

[Lord Clement-Jones (LD)]

My Lords, it has just occurred to me what the answer is to the question, “Where does an individual actually get redress?” The only way they can get redress is by collaborating with another 100 people and raising a super-complaint. Is that the answer under the Bill?

[Viscount Camrose (Con)]

No. The super-complaints mechanism is better thought of as part of a horizon-scanning mechanism. It is not—

[Lord Clement-Jones (LD)]

So it is not really a complaints system; it is a horizon-scanning system. That is interesting.

[Viscount Camrose (Con)]

The answer to the noble Lord’s question is that the super-complaint is not a mechanism for individuals to complain on an individual basis and seek redress.

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[Lord Hope of Craighead (CB)]

My Lords, I follow the noble Lord, Lord Foulkes, with just a few words. As we have been reminded, I tabled Amendment 63, which has already been debated. The Minister will remember that my point was about legal certainty; I was not concerned with devolution, although I mentioned Amendment 58 just to remind him that we are dealing with all parts of the United Kingdom in the Bill and it is important that the expression should have the same meaning throughout all parts.

We are faced with the interesting situation which arose in the strikes Bill: the subject matter of the Bill is reserved, but one must have regard to the fact that its effects spread into devolved areas, which have their own systems of justice, health and education. That is why there is great force in the point that the noble Baroness, Lady Fraser, has been making. I join the noble Lord, Lord Foulkes, in endorsing what she said without going back into the detail, but remind the Minister that devolution exists, even though we are dealing with reserved matters.

[Lord Clement-Jones (LD)]

My Lords, this is unfamiliar territory for me, but the comprehensive introduction of the noble Baroness, Lady Fraser, has clarified the issue. I am only disappointed that we had such a short speech from the noble Lord, Lord Foulkes—uncharacteristic, perhaps I could say—but it was good to hear from the noble and learned Lord, Lord Hope, on this subject as well. The noble Baroness’s phrase “devolution deficit” is very useful shorthand for some of these issues. She has raised a number of questions about the Secretary of State’s powers under Clause 53(5)(c): the process, the method of consultation and whether there is a role for Ofcom’s national advisory committees. Greater transparency in order to understand which offences overlap in all this would be very useful. She deliberately did not go for one solution or another, but issues clearly arise where the thresholds are different. It would be good to hear how the Government are going to resolve this issue.

[Lord Stevenson of Balmacara (Lab)]

My Lords, it is a pity that we have not had the benefit of hearing from the Minister, because a lot of his amendments in this group seem to bear on some of the more generic points made in the very good speech by the noble Baroness, Lady Fraser. I assume he will cover them, but I wonder whether he would at least be prepared to answer any questions people might come back with—not in any aggressive sense; we are not trying to scare the pants off him before he starts. For example, the points made by the noble Lord, Lord Clement-Jones, intrigue me.

I used to have responsibility for devolved issues when I worked at No. 10 for a short period. It was a bit of a joke, really. Whenever anything Welsh happened, I was immediately summoned down to Cardiff and hauled over the coals. You knew when you were in trouble when they all stopped speaking English and started speaking Welsh; then, you knew there really was an issue, whereas before I just had to listen, go back and report. In Scotland, nobody came to me anyway, because they knew that the then Prime Minister was a much more interesting person to talk to about these things. They just went to him instead, so I did not really learn very much.

I noticed some issues in the Marshalled List that I had not picked up on when I worked on this before. I do not know whether the Minister wishes to address this—I do not want to delay the Committee too much—but are we saying that to apply a provision in the Bill to the Bailiwick of Guernsey or the Isle of Man, an Order in Council is required to bypass Parliament? Is that a common way of proceeding in these places? I suspect that the noble and learned Lord, Lord Hope, knows much more about this than I do—he shakes his head—but this is a new one on me. Does it mean that this Parliament has no responsibility for how its laws are applied in those territories, or are there other procedures of which we are unaware?

My second point again picks up what the noble Lord, Lord Clement-Jones, was saying. Could the Minister go through in some detail the process by which a devolved authority would apply to the Secretary of State—presumably for DSIT—to seek consent for a devolved offence to be included in the Online Safety Bill regime? If this is correct, who grants to what? Does this come to the House as a statutory instrument? Is just the Secretary of State involved, or does it go to the Privy Council? Are there other ways that we are yet to know about? It would be interesting to know.

To echo the noble Lord, Lord Clement-Jones, we probably do need a letter from the Minister, if he ever gets this cleared, setting out exactly how the variation in powers would operate across the four territories. If there are variations, we would like to know about them.

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[Baroness Healy of Primrose Hill (Lab)]

My Lords, I support the noble Baroness, Lady Finlay of Llandaff, in her Amendment 96 and others in this group. The internet is fuelling an epidemic of self-harm, often leading to suicide among young people. Thanks to the noble Baroness, Lady Kidron, I have listened to many grieving families explaining the impact that social media had on their beloved children. Content that includes providing detailed instructions for methods of suicide or challenges or pacts that seek agreement to undertake mutual acts of suicide or deliberate self-injury must be curtailed, or platforms must be made to warn and protect vulnerable adults.

I recognise that the Government acknowledge the problem and have attempted to tackle it in the Bill with the new offence of encouraging or assisting serious self-harm and suicide and by listing it as priority illegal content. But I agree with charities such as Samaritans, which says that the Government are taking a partial approach by not accepting this group of amendments. Samaritans considers that the types of suicide and self-harm content that is legal but unequivocally harmful includes information, depictions, instructions and advice on methods of self-harm or suicide, content that portrays self-harm and suicide as positive or desirable and graphic descriptions or depictions of self-harm and suicide.

With the removal of regulation of legal but harmful content, much suicide and self-harm content can remain easily available, and platforms will not even need to consider the risk that such content could pose to adult users. These amendments aim to ensure that harmful self-harm and suicide content is addressed across all platforms and search services, regardless of their functionality or reach, and, importantly, for all persons regardless of age.

In 2017 an inquiry into suicides of young people found suicide-related internet use in 26% of deaths in under-20s and 13% of deaths in 20 to 24 year-olds. Three-quarters of people who took part in Samaritans’ research with Swansea University said that they had harmed themselves more severely after viewing self-harm content online, as the noble Baroness, Lady Finlay, pointed out. People of all ages can be susceptible to harm from this dangerous content. There is shocking evidence that between 2011 and 2015, 151 patients who died by suicide were known to have visited websites that encouraged suicide or shared information about methods of harm, and 82% of those patients were over 25.

Suicide is complex and rarely caused by one thing. However, there is strong evidence of associations between financial difficulties, mental health and suicide. People on the lowest incomes have a higher suicide risk than those who are wealthier, and people on lower incomes are also the most affected by rising prices and other types of financial hardship. In January and February this year the Samaritans saw the highest percentage of first-time phone callers concerned about finance or unemployment—almost one in 10 calls for help in February. With the cost of living crisis and growing pressure on adults to cope with stress, it is imperative that the Government urgently bring in these amendments to help protect all ages from harmful suicide and self-harm content by putting a duty on providers of user-to-user services to properly manage such content.

A more comprehensive online safety regime for all ages will also increase protections for children, as research has shown that age verification and restrictions across social media and online platforms are easily bypassed by them. As the Bill currently stands, there is a two-tier approach to safety which can still mean that children may circumnavigate safety controls and find this harmful suicide and self-harm content.

Finally, user empowerment duties that we debated earlier are no substitute for regulation of access to dangerous suicide and self-harm online content through the law that these amendments seek to achieve.

[Lord Clement-Jones (LD)]

My Lords, I thank the noble Baroness, Lady Finlay, for introducing the amendments in the way she did. I think that what she has done, and what this whole debate has done, is to ask the question that the noble Baroness, Lady Kidron, posed: we do not know yet quite where the gaps are until we see what the Government have in mind in terms of the promised new offence. But it seems pretty clear that something along the lines of what has been proposed in this debate needs to be set out as well.

One of the most moving aspects of being part of the original Joint Committee on the draft Bill was the experience of listening to Ian Russell and the understanding, which I had not come across previously, of the sheer scale of the kind of material that has been the subject of this debate on suicide and self-harm encouragement. We need to find an effective way of dealing with it and I entirely take my noble friend’s point that this needs a combination of protectiveness and support. I think the combination of these amendments is designed to do precisely that and to learn from experience through having the advisory committee as well.

It is clear that, by itself, user empowerment is just not going to be enough in all of this. I think that is the bottom line for all of us. We need to go much further, and we owe a debt to the noble Baroness, Lady Finlay, for raising these issues and to the Samaritans for campaigning on this subject. I am just sorry that my noble friend Lady Tyler cannot be here because she is a signatory to a number of the amendments and feels very strongly about these issues as well.

I do not think I need to unpack a great deal of the points that have been made. We know that suicide is a leading cause of death in males under 50 and females under 35 in the UK. We know that so many of the deaths are internet-related and we need to find effective methods of dealing with this. These are meant to be practical steps.

I take the point of the noble Baroness, Lady Fox, not only that it is a social problem of some magnitude but that the question of definitions is important. I thought she strayed well beyond where I thought the definition of “self-harm” actually came. But one could discuss that. I thought the noble Baroness, Lady Kidron, saying that we want good law, not relying on good people, was about definitions. We cannot just leave it to the discretion of an individual, however good they may be, moderating on a social media platform.

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[Lord Parkinson of Whitley Bay (Con)]

I refer to the meeting my noble friend Lord Camrose offered; we will be able to go through and unpick the issues raised in that group of amendments, rather than looping back to that debate now.

[Lord Clement-Jones (LD)]

The Minister is going through the structure of the Bill and saying that what is in it is adequate to prevent the kinds of harms to vulnerable adults that we talked about during this debate. Essentially, it is a combination of adherence to terms of service and user-empowerment tools. Is he saying that those two aspects are adequate to prevent the kinds of harms we have talked about?

[Lord Parkinson of Whitley Bay (Con)]

Yes, they are—with the addition of what I am coming to. In addition to the duty for companies to consider the role of algorithms, which I talked about, Ofcom will have a range of powers at its disposal to help it assess whether providers are fulfilling their duties, including the power to require information from providers about the operation of their algorithms. The regulator will be able to hold senior executives criminally liable if they fail to ensure that their company is providing Ofcom with the information it requests.

However, we must not restrict users’ right to see legal content and speech. These amendments would prescribe specific approaches for companies’ treatment of legal content accessed by adults, which would give the Government undue influence in choosing, on adult users’ behalf, what content they see—

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The Bill is a unique opportunity to protect women and girls online, so I commend the Government on introducing it to Parliament, but they could do much more to combat violence against women and girls. If they do not, inaction now will result in us sleepwalking into a culture of normalising despicable behaviour towards women even more openly. If online perpetrators of abuse are not tackled robustly now, it will embolden them further to escalate and gaslight victims. The Government must send perpetrators a message that there is no place to hide—not even online. If the Government want the UK to be the safest place in the world to be online, they should agree to these amendments.

[Lord Clement-Jones (LD)]

My Lords, I will be very brief. My noble friend has very eloquently expressed the support on these Benches for these amendments, and I am very grateful to the noble Baroness, Lady Morgan, for setting out the case so extremely convincingly, along with many other noble Lords. It is, as the noble Baroness, Lady Kidron, said, about the prevention of the normalisation of misogyny. As my noble friend said, it is for the tech companies to prevent that.

The big problem is that the Government have got themselves into a position where—except in the case of children—the Bill now deals essentially only with illegal harms, so you have to pick off these harms one by one and create illegality. That is why we had the debate in the last group about other kinds of harm. This is another harm that we are debating, precisely because the Government amended the Bill in the Commons in the way that they did. But it does not make this any less important. It is quite clear; we have talked about terms of service, user empowerment tools, lack of enforcement, lack of compliance and all the issues relating to these harms. The use of the expression “chilling effect”—I think by the noble Baroness, Lady Kidron—and then the examples given by the noble Baroness, Lady Gohir, absolutely illustrated that. We are talking about the impact on freedom of expression.

I am afraid that, once again, I do not agree with the noble Baroness, Lady Fox. Why do I find myself disagreeing on such a frequent basis? I think the harms override the other aspects that the noble Baroness was talking about.

We have heard about the lack of a proper complaints system—we are back to complaints again. These themes keep coming through, and until the Government see that there are flaws in the Bill, I do not think we are going to make a great deal more progress. The figure given was that more than half of domestic abuse survivors did not receive a response from the platform to their report of domestic abuse-related content. That kind of example demonstrates that we absolutely need this code.

There is an absolutely convincing case for what one of our speakers, probably the right reverend Prelate, called a holistic way of dealing with these abuses. That is what we need, and that is why we need this code.

[Baroness Merron (Lab)]

My Lords, the amendments in this group, which I am pleased to speak to now, shine a very bright light on the fact that there is no equality when it comes to abuse. We are not starting at a level playing field. This is probably the only place that I do not want to level up; I want to level down. This is not about ensuring that men can be abused as much as women; it is about the very core of what the Bill is about, which is to make this country the safest online space in the world. That is something that unites us all, but we do not start in the same place.

I thank all noble Lords for their very considered contributions in unpicking all the issues and giving evidence about why we do not have that level playing field. Like other noble Lords, I am grateful to the noble Baroness, Lady Morgan, for her thorough, illustrative and realistic introduction to this group of amendments, which really framed it today. Of course, the noble Baroness is supported in signing the amendment by the noble Baroness, Lady Kidron, the right reverend Prelate the Bishop of Gloucester and my noble friend Lord Knight.

The requirement in Amendment 97 that there should be an Ofcom code of practice is recognition that many aspects of online violence disproportionately affect women and girls. I think we always need to come back to that point, because nothing in this debate has taken me away from that very clear and fundamental point. Let us remind ourselves that the online face of violence against women and girls includes—this is not a full list—cyberflashing, abusive pile-ons, incel gangs and cyberstalking, to name but a few. Again, we are not starting from a very simple point; we are talking about an evolving online face of violence against women and girls, and the Bill needs to keep pace.

I associate myself with the words of the noble Baroness, Lady Morgan, and other noble Lords in thanking and appreciating the groups and individuals who have already done the work, and who have—if I might use the term—an oven-ready code of practice available to the Minister, should he wish to avail himself of it. I share the comments about the lack of logic. If violence against women and girls is part of the strategic policing requirement, and the Home Secretary says that dealing with violence against women and girls is a priority, why is this not part of a joined-up government approach? That is what we should now be seeing in the Bill. I am sure the Minister will want to address that question.

The right reverend Prelate the Bishop of Gloucester rightly said that abuse is abuse. Whether it is online or offline, it makes no difference. The positive emphasis should be that women and girls should be able to express themselves online as they should be able to offline. Again, that is a basic underlying point of these amendments.

I listened very closely to the words of the noble Baroness, Lady Stowell. I understand her nervousness, and she is absolutely right to bring before the Committee that perhaps a code of conduct of this nature could allow and encourage, to quote her, division. The challenge we have is that women and girls have a different level of experience. We all want to see higher standards of behaviour, as the noble Baroness referred to—I know that we will come back to that later. However, I cannot see how not having a code of conduct will assist those higher standards because the proposed code of conduct simply acknowledges the reality, which is that women and girls are 27 times more likely to be abused online than men are. I want to put on record that this is not about emphasising division, saying that it is all right to abuse men or, as the noble Baroness gives me the opportunity to say, saying that all men are somehow responsible—far from it. As ever, this is something that unites us all: the tackling of abuse wherever it takes place.

Amendment 104 in the name of my noble friend Lord Stevenson proposes an important change to Schedule 4: that

“women and girls, and vulnerable adults”

should have a higher standard of protection than other adult users. That amendment is there because the Bill is silent on these groups. There is no mention of them, so we seek to change this through that amendment.

To return to the issue of women and girls, two-thirds of women who report abuse to internet companies do not feel heard. Three-quarters of women change their behaviour after receiving online abuse. I absolutely agree with the noble Baroness, Lady Kidron, who made the point that the Bill currently assumes that there is no interconnection between different safety duties where somebody has more than one protected characteristic, because it misses reality. One has only to talk to Jewish women to know that, although anti-Semitism knows no bounds, if you are a Jewish woman then there is no doubt that you will be the subject of far greater abuse than your male counterpart. Similarly, women of colour are one-third more likely to be mentioned in abusive tweets than white women. Again, there is no level playing field.

As it stands, the Bill puts an onus on women and girls to protect themselves from online violence and abuse. The problem, as has been mentioned many times, is that user empowerment tools do not incentivise services to address the design of their service, which may be facilitating the spread of violence against women and girls. That point was very well made by my noble friend Lady Healy and the noble Baroness, Lady Gohir, in their contributions.

On the question of the current response to violence against women and girls from tech companies, an investigation by the Times identified that platforms such as TikTok and YouTube are profiting from a wave of misogynist content, with a range of self-styled “self-help gurus”, inspired by the likes of Andrew Tate, offering advice to their millions of followers, encouraging men and boys, in the way described by the noble Baroness, Lady Stowell, to engage with women and girls in such a way that amounts to pure abuse, instructing boys and men to ensure that women and girls in their lives are “compliant”, “insecure” and “well- behaved”. This is not the kind of online space that we seek.

I hope that the Minister, if he cannot accept the amendments, will give his assurance that he can understand what is behind them and the need for action, and will reflect and come back to your Lordships’ House in a way that can allow us to level down, rather than level up, the amount of abuse that is aimed at men but also, in this case in particular, at women and girls.

Online Safety Bill

Lord Clement-Jones Excerpts

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.

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[Baroness Healy of Primrose Hill (Lab)]

My Lords, I support Amendment 52, tabled by my noble friend Lady Merron. This is an important issue which must be addressed in the Bill if we are to make real progress in making the internet a safer space, not just for children but for vulnerable adults.

We have the opportunity to learn lessons from the pandemic, where misinformation had a devastating impact, spreading rapidly online like the virus and threatening to undermine the vaccine rollout. If the Government had kept their earlier promise to include protection from harmful false health content in their indicative list of harmful content that companies would have been required to address under the now removed adult safety duties, these amendments would not be necessary.

It is naive to think that platforms will behave responsibly. Currently, they are left to their own devices in how they tackle health misinformation, without appropriate regulatory oversight. They can remove it at scale or leave it completely unchecked, as illustrated by Twitter’s decision to stop enforcing its Covid-19 misinformation policies, as other noble Lords have pointed out.

It is not a question of maintaining free speech, as some might argue. It was the most vulnerable groups who suffered from the spread of misinformation online—pregnant women and the BAME community, who had higher illness rates. Studies have shown that, proportionately, more of them died, not just because they were front-line workers but because of rumours spread in the community which resulted in vaccine hesitancy, with devastating consequences. As other noble Lords have pointed out, in 2021 the Royal College of Obstetricians and Gynaecologists found that only 42% of women who had been offered the vaccine accepted it, and in October that year one in five of the most critically ill Covid patients were unvaccinated, pregnant women. That is a heartbreaking statistic.

Unfortunately, it is not just vaccine fears that are spread on the internet. Other harmful theories can affect patients with cancer, mental health issues and sexual health issues, and, most worryingly, can affect children’s health. Rumours and misinformation play on the minds of the most vulnerable. The Government have a duty to protect people, and by accepting this amendment they would go some way to addressing this.

Platforms must undertake a health misinformation risk assessment and have a clear policy on dealing with harmful, false and misleading health information in their terms of service. They have the money and the expertise to do this, and Parliament must insist. As my noble friend Lady Merron said, I do not think that the Minister can say that the false communications offence in Clause 160 will address the problem, as it covers only a user sending a knowingly false communication with the intention of causing harm. The charity Full Fact has stated that this offence will exclude most health misinformation that it monitors online.

[Lord Clement-Jones (LD)]

My Lords, this has been a very interesting debate. I absolutely agree with what the noble Baroness, Lady Kidron, said right at the beginning of her speech. This was one of the most difficult areas that the Joint Committee had to look at. I am not saying that anything that we said was particularly original. We tried to say that this issue could be partly addressed by greater media literacy, which, no doubt, we will be talking about later today; we talked about transparency of system design, and about better enforcement of service terms and conditions. But things have moved on. Clearly, many of us think that the way that the current Bill is drafted is inadequate. However, the Government did move towards proposing a committee to review misinformation and disinformation. That is welcome, but I believe that these amendments are taking the thinking and actions a step forward.

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[Lord Davies of Brixton (Lab)]

My Lords, I spoke at Second Reading about the relationship between online safety and protecting people’s mental health, a theme that runs throughout the Bill. I have not followed the progress in Committee as diligently as I wish, but this group of amendments has caught the eye of the Mental Health Foundation, which has expressed support. It identified Amendment 188, but I think it is the general principle that it supports. The Mental Health Foundation understands the importance of education, because it asked young people what they thought should be done. It sponsored a crucial inquiry through its organisation YoungMinds, which produced a report earlier this year, Putting a Stop to the Endless Scroll.

One of the three major recommendations that emerged from that report, from the feelings of young people themselves, was the need for better education. It found that young people were frustrated at being presented with outdated information about keeping their details safe. They felt that they needed something far more advanced, more relevant to the online world as it is happening at the moment, on how to avoid the risks from such things as image-editing apps. They needed information on more sophisticated risks that they face, essentially what they described as design risks, where the website is designed to drag you in and make you addicted to these algorithms.

The Bill as a whole is designed to protect children and young people from harm, but it must also, as previous speakers have made clear, provide young people themselves with tools so that they can exercise their own judgment to protect themselves and ensure that they do not fall foul, set on that well-worn path between being engaged on a website and ending up with problems with their mental health. Eating is the classic example: you click on a website about a recipe and, step by step, you get dragged into material designed to harm your health through its effect on your diet.

I very much welcome this group of amendments, what it is trying to achieve and the role that it will have by educating young people to protect themselves, recognising the nature of the internet as it is now, so that they do not run the risks of affecting their mental health.

[Lord Clement-Jones (LD)]

My Lords, this has probably been the most constructive and inspiring debate that we have had on the Bill. In particular, I thank the noble Lord, Lord Knight, for introducing this debate. His passion for this kind of media literacy education absolutely shines through. I thank him for kicking off in such an interesting and constructive way. I am sorry that my noble friend Lord Storey is not here to contribute as well, with his educational background. He likewise has a passion for media literacy education and would otherwise have wanted to contribute to the debate today.

I am delighted that I have found some common ground with the noble Baroness, Lady Fox. The idea of sending my noble friend Lord Allan on tour has great attractions. I am not sure that he would find it quite so attractive. I am looking forward to him coming back before sending him off around the country. I agree that he has made a very constructive contribution. I agree with much of what the noble Baroness said, and the noble Baroness, Lady Prashar, had the same instinct: this is a way of better preserving freedom of speech. If we can have those critical thinking skills so that people can protect themselves from misinformation, disinformation and some of the harms online, we can have greater confidence that people are able to protect themselves against these harms at whatever age they may be.

I was very pleased to hear the references to Lord Puttnam, because I think that the Democracy and Digital Technologies Committee report was ground-breaking in the way it described the need for digital media literacy. This is about equipping not just young people but everybody with the critical thinking skills needed to differentiate fact from fiction—particularly, as we have talked through in Committee, on the way that digital platforms operate through their systems, algorithms and data.

The noble Lord, Lord Holmes, talked about the breadth and depth needed for media and digital literacy education; he had it absolutely right about people being appropriately savvy, and the noble Baroness, Lady Bennett, echoed what he said in that respect.

I think we have some excellent amendments here. If we can distil them into a single amendment in time for Report or a discussion with the Minister, I think we will find ourselves going forward constructively. There are many aspects of this. For instance, the DCMS Select Committee recommended that digital literacy becomes the fourth pillar of education, which seems to me a pretty important aspect alongside reading, writing and maths. That is the kind of age that we are in. I have quoted Parent Zone before. It acknowledges the usefulness of user empowerment tools and so on, but again it stressed the need for media literacy. What kind of media literacy? The noble Baroness, Lady Kidron, was extremely interesting when she said that what is important is not just user behaviour but making the right choices—that sort of critical thinking. The noble Lord, Lord Russell, provided an analogy with preventive health that was very important.

Our Joint Committee used a rather different phrase. It talked about a “whole of government” approach. When we look at all the different aspects, we see that it is something not just for Ofcom—I entirely agree with that—but that should involve a much broader range of stakeholders in government. We know that, out there, there are organisations such as the Good Things Foundation and CILIP, the library association, and I am sorry that the noble Baroness, Lady Lane-Fox, is not in her place to remind us about Doteveryone, an organisation that many of us admire a great deal for the work it carries out.

I think the “appropriately savvy” expression very much applies to the fraud prevention aspect, and it will be interesting when we come to the next group to talk about that as well. The Government have pointed to the DCMS online media strategy, but the noble Lord, Lord Holmes, is absolutely right to ask what its outcome has been, what its results have been, and what resources are being devoted towards it. We are often pointed to that by the Government, here in Committee and at Oral Questions whenever we ask how the media literacy strategy is going, so we need to kick the tyres on that as well as on the kind of priority and resources being devoted to media literacy.

As ever, I shall refer to the Government’s response to the Joint Committee, which I found rather extraordinary. The Government responded to the committee’s recommendation about minimum standards; there is an amendment today about minimum standards. They said:

“Ofcom has recently published a new approach to online media literacy … Clause 103 of the draft Bill”—


the noble Baroness, Lady Prashar, referred to the fact that in the draft Bill there was originally a new duty on Ofcom—

“did not grant Ofcom any additional powers. As such, it is … unnecessary regulation. It has therefore been removed”.

It did add to Ofcom’s duties. Will the Minister say whether he thinks all the amendments here today would constitute unnecessary regulation? As he can see, there is considerable appetite around the Committee for the kind of media literacy duty across the board that we have talked about today. He might make up for some of the disappointment that many of us feel about the Government’s having got rid of that clause by responding to that question.

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[Baroness Kidron (CB)]

My Lords, I shall say very briefly in support of these amendments that in 2017, the 5Rights Foundation, of which I am the chair, published the Digital Childhood report, which in a way was the thing that put the organisation on the map. The report looked at the evolving capacity of children through childhood, what technology they were using, what happened to them and what the impact was. We are about to release the report again, in an updated version, and one of the things that is most striking is the introduction of fraud into children’s lives. At the point at which they are evolving into autonomous people, when they want to buy presents for their friends and parents on their own, they are experiencing what the noble Baroness, Lady Morgan, expressed as embarrassment, loss of trust and a sense of deserting confidence—I think that is probably the phrase. So I just want to put on the record that this is a problem for children also.

[Lord Clement-Jones (LD)]

My Lords, this has been an interesting short debate and the noble Baroness, Lady Morgan, made a very simple proposition. I am very grateful to her for introducing this so clearly and comprehensively. Of course, it is all about the way that platforms will identify illegal, fraudulent advertising and attempt to align it with other user-to-user content in terms of transparency, reporting, user reporting and user complaints. It is a very straightforward proposition.

First of all, however, we should thank the Government for acceding to what the Joint Committee suggested, which was that fraudulent advertising should be brought within the scope of the Bill. But, as ever, we want more. That is what it is all about and it is a very straightforward proposition which I very much hope the Minister will accede to.

We have heard from around the Committee about the growing problem and I will be very interested to read the report that the noble Baroness, Lady Kidron, was talking about, in terms of the introduction of fraud into children’s lives—that is really important. The noble Baroness, Lady Morgan, mentioned some of the statistics from Clean Up the Internet, Action Fraud and so on, as did the noble Viscount, Lord Colville. And, of course, it is now digital. Some 80% of fraud, as he said, is cyber-enabled, and 23% of all reported frauds are initiated on social media—so this is bang in the area of the Bill.

It has been very interesting to see how some of the trade organisations, the ABI and others, have talked about the impact of fraud, including digital fraud. The ABI said:

“Consumers’ confidence is being eroded by the ongoing proliferation of online financial scams, including those predicated on impersonation of financial service providers and facilitated through online advertising. Both the insurance and long-term savings sectors are impacted by financial scams perpetrated via online paid-for advertisements, which can deprive vulnerable consumers of their life savings and leave deep emotional scars”.


So, this is very much a cross-industry concern and very visible to the insurance industry and no doubt to other sectors as well.

I congratulate the noble Baroness, Lady Morgan, on her chairing of the fraud committee and on the way it came to its conclusions and scrutinised the Bill. Paragraphs 559, 560 and 561 all set out where the Bill needs to be aligned to the other content that it covers. As she described, there are two areas where the Bill can be improved. If they are not cured, they will substantially undermine its ability to tackle online fraud effectively.

This has the backing of Which? As the Minister will notice, it is very much a cross-industry and consumer body set of amendments, supporting transparency reporting and making sure that those platforms with more fraudulent advertising make proportionately larger changes to their systems. That is why there is transparency reporting for all illegal harms that platforms are obliged to prevent. There is no reason why advertising should be exempt. On user reporting and complaints, it is currently unclear whether this applies only to illegal user-generated content and unpaid search content or if it also applies to illegal fraudulent advertisements. At the very least, I hope the Minister will clarify that today.

Elsewhere, the Bill requires platforms to allow users to complain if the platform fails to comply with its duties to protect users from illegal content and with regard to the content-reporting process. I very much hope the Minister will accede to including that as well.

Some very simple requests are being made in this group. I very much hope that the Minister will take them on board.

[Lord Stevenson of Balmacara (Lab)]

It is the simple requests that always seem to evade the easy solutions. I will not go back over the very good introductory speech from the noble Baroness, which said it all; the figures are appalling and the range of fraud-inspired criminality is extraordinary. It plays back to a point we have been hammering today: if this Bill is about anything, it is the way the internet amplifies that which would be unpleasant anyway but will now reach epidemic proportions.

I wonder whether that is the clue to the problem the noble Baroness was commenting on—I think more in hope than in having any way to resolve it. It is great news that three Bills are doing all the stuff we want. We have talked a bit about three-legged stools; this is another one that might crash over. If we are not careful, it will slip through the cracks. I am mixing my metaphors again.

If the Minister would not mind a bit of advice, it seems to me that this Bill could do certain things and do them well. It should not hold back and wait for the others to catch up or do things differently. The noble Baroness made the point about the extraordinarily difficult to understand gap, in that what is happening to priority illegal content elsewhere in the Bill does not apply to this, even though it is clearly illegal activity. I understand that there is a logical line that it is not quite the same thing—that the Bill is primarily about certain restricted types of activity on social media and not the generality of fraud—but surely the scale of the problem and our difficulty in cracking down on it, by whatever routes and whatever size of stool we choose, suggest that we should do what we can in this Bill and do it hard, deeply and properly.

Secondly, we have amendments later in Committee on the role of the regulators and the possibility recommended by the Communications and Digital Committee that we should seek statutory backing for regulation in this area. Here is a classic example of more than two regulators working to achieve the same end that will probably bump into each other on the way. There is no doubt that the FCA has primary responsibility in this area, but the reality is that the damage is being done by the amplification effect within the social media companies.