Online Safety Bill

Debate between Lord Garnier and Baroness Buscombe

Committee stage
Thursday 22nd June 2023 Lords Chamber

[Baroness Buscombe (Con)]

My Lords, I shall speak to Amendments 266 and 267, to which my noble and learned friend Lord Garnier, my noble friend Lord Leicester and the noble Lord, Lord Clement-Jones, have added their names. They are the final two amendments from a group of amendments that were also supported by the noble Lord, Lord Moore of Etchingham, and the noble Baroness, Lady Mallalieu.

The purpose of this Bill is to make the internet a safer place. The new offence of false communications is just one of the important means it seeks to use with the objective of making it an offence to harm people by telling lies online—and this is welcome. It is right that the Bill should focus on preventing harms to individuals. One of the most important guarantors that a person can have of good health and well-being is their freedom to pursue their livelihood unimpeded by illegitimate hostile action. Attacks on people’s livelihoods have the potential to wreak unimaginable harm on their mental and physical health, but these attacks are also among the easiest to perpetrate through the internet. My amendments seek to prevent such harms by protecting people who run, or work for, businesses that have been targeted with malicious fake reviews posted to online platforms, such as Google Maps or TripAdvisor. These platforms already fall within scope of this Bill in hosting user-generated content.

By referencing fake reviews, I am not referring to legitimate criticism, fair comment or even remarks about extraneous matters such as the owners’ pastimes or opinions, provided that the reviewer is honest about the nature of their relationship with the business. If someone wants to write a review of a business which they admit they have never patronised, and criticise it based on such factors, this would not be illegal, but it would very likely breach the platform’s terms of service and be removed. Review platforms are not the proper venue for such discussions; their role is to let people share opinions about a business’s products and services, but policing that is up to them.

The malicious fake reviews that I am referring to are those that are fundamentally dishonest. People with grudges to bear know that the platforms they use to attack their victims will remove any reviews that are clearly based on malice rather than a subjective assessment of quality. That is why they have come to adopt more insidious tactics. Without mentioning the real reason for their hostility towards a business and/or its staff, they purport to be customers who have had bad experiences. Of course, in almost every case, the reviewer has never so much as gone near the business. The review is therefore founded on lies.

This is not merely an abstract concern. Real people are being really harmed. Noble Lords will know that in earlier debates I used the prism of rural communities to amplify the objective of my amendments. Only yesterday, during Oral Questions in your Lordships’ House, there was an overwhelming collective consensus that we need to do more to protect the livelihoods of those working so hard in rural communities. My simple amendments would make a massive difference to their well-being.

The Countryside Alliance recently conducted a survey that found innumerable instances of ideologically motivated fake reviews targeted at rural businesses; these were often carried out by animal rights extremists and targeted businesses and their employees who sometimes participated in activities to which they objected, such as hosting shoots or serving meat. In April this year, the Telegraph reported on one case of a chef running a rural pub whose business was attacked with fake reviews by a vegan extremist who had verifiably never visited the pub, based initially on the man’s objection to him having posted on social media a picture of a roast chicken. The chef said these actions were making him fear for his livelihood as his business fought to recover from the pandemic. He is supporting my amendments.

Amendment 266 would therefore simply add the word “financial” to “physical” and “psychological” in the Bill’s definition of the types of harm that a message would need to cause for it to amount to an offence. This amendment is not an attempt to make the Bill into something it was not designed to be. It is merely an attempt to protect the physical and mental health of workers whose businesses are at risk of attack through malicious fake reviews. It may be that the victim of such an attack could argue that a fake review has caused them physical or psychological harm, as required under the Bill as currently drafted—indeed, it would likely do so. The reason for adding financial harm is to circumvent the need for victims to make that argument to the police, the police to the Crown Prosecution Service and then the prosecutors in front of the jury.

That links to Amendment 267, which would enlarge the definition of parties who may be harmed by a message for it to an amount to an offence. Under the Bill, a message must harm its intended, or reasonably foreseeable, recipient; however, it is vital to understand that a person need not receive the message to be harmed by it. In the case of fake reviews, the victim is harmed because the false information has been seen by others; he or she is not an intended recipient. The amendment would therefore include harms to the person or organisation to which the information—or, in reality, disinformation—contained within it relates.

My principal objective in bringing these amendments is not to create a stick with which to beat those who wish harm to others through malicious fake reviews; rather—call me old-fashioned—it is about deterrence. It is to deter this conduct by making it clear that it is not acceptable and would, if necessary, be pursued by police and through the courts under criminal law. It is about seeing to it that malicious fake reviews are not written and their harm is not caused.

I am aware that the Government have responded to constituents who have contacted their MPs in support of these amendments to say that they intend to act through the Competition and Markets Authority against businesses that pay third parties to write fake disparaging reviews of their competitors. I must stress to my noble friend the Minister, with respect, that this response misunderstands the issue. While there is a problem with businesses fraudulently reviewing their competitors to gain commercial advantage—and it is welcome that the Government plan to act on it—I am concerned with extreme activists and other people with ideological or personal axes to grind. These people are not engaged in any relevant business and are not seeking to promote a competitor by comparison. It is hard to see how any action by the Competition and Markets Authority could offer an effective remedy. The CMA exists to regulate businesses, not individual cranks. Further, this is not a matter of consumer law.

If the Government wish to propose some alternative means of addressing this issue besides my amendments, I and those who have added their names—and those who are supporters beyond your Lordships’ House—would be pleased to engage with Ministers between now and Report. In that regard though, I gently urge the Government to start any conversation from a position of understanding—really understanding—what the problem is. I fully appreciate that the purpose of this Bill is to protect individuals, and that is the key point of my amendments. My focus is upon those running and working in small businesses who are easy targets of this form of bullying and abuse. It is entirely in keeping with the spirit and purpose of the Bill to protect them.

Finally, I must be clear that the prism of what happens in our rural areas translates directly to everything urban across the UK. A practical difference is that people working in remote areas are often very isolated and find this intrusion into their life and livelihood so hard to cope with. We live in a pretty unpleasant world that is diminishing our love of life—that is why this Bill is so necessary.

[Lord Garnier (Con)]

My Lords, I wish to add to what my noble friend Lady Buscombe has just said, but I can do so a little more briefly, not least because she has made all the points that need to be made.

I would disagree with her on only one point, which is that she said—I am not sure that she wanted to be called old-fashioned, but she certainly wanted to have it explained to us—that the purpose of our amendment was to deter people from making malicious posts to the detriments of businesses and so forth. I think it is about more than deterrence, if I may say so. It is about fairness and justice.

It is very natural for a civilised, humane person to want to protect those who cannot protect themselves because of the anonymity of the perpetrator of the act. Over the last nearly 50 years, I have practised at the media Bar, including in cases based on the tort of malicious falsehood, trade libel or slander of goods. Essentially, my noble friend and I are trying to bring into the criminal law the torts that I have advised on and appeared in cases involving, so that the seriousness of the damage caused by the people who do these anonymous things can be visited by the weight of the state as the impartial prosecutor.