Public Service Broadcasting: BBC Centenary

Lord Gilbert of Panteg Excerpts

Thursday 3rd November 2022 Lords Chamber

[Lord Gilbert of Panteg (Con)]

I too congratulate the noble Lord, Lord Foster, on securing this debate. He is a passionate and truly expert advocate of public service broadcasting.

It was a privilege to chair the Communications and Digital Committee, which produced a number of reports on the future of PSBs prior to the excellent report on BBC funding which my successor and noble friend Lady Stowell of Beeston has described.

The Government are right to look now at the future funding of the BBC and are right to ask whether the current model for Channel 4 is sustainable in the long term. However, it is hard to see how evidence-based answers to these questions can be reached without looking in detail at what we want from PSBs in this rapidly changing world. Will my noble friend the Minister, whose return to the Front Bench is most welcome, confirm that in looking at the future funding of the BBC, the starting point will be an across-the-board evaluation of the future role of PSBs?

On BBC funding, I welcome the Government’s commitment to greater transparency in future funding settlements and charter negotiations. We certainly cannot tolerate another behind-closed-doors stitch-up. In the interests of time I will skip the eulogies, but as a friend of the BBC I have to acknowledge that no Government of any colour are going to raise the licence fee significantly above the rate of inflation. With inflation in the sector likely to remain well ahead of consumer inflation measures for many years ahead, this is a recipe for a slow death for the BBC: annual cuts after annual cuts, no long-term investment and the inevitable but non-strategic withdrawal of services. That is why my noble friend Lady Stowell is right to urge the BBC itself to be radical and take a lead in the debate about its future funding.

On Channel 4, the Government are right to periodically review their ownership and they were right to worry about the sustainability of the current model. They should, however, have considered other ways of updating the model. Given that so much has changed since the launch of Channel 4, including the huge expansion of the independent production sector and the nature of underserved audiences, we should be asking whether the remit is up to date, the terms of trade and publisher broadcaster model need updating, and whether the way it accesses capital could be changed. However, if the Government should have asked these questions, so should Channel 4 have addressed them in its response to the Government’s proposals. An outright rejection of privatisation without any evidence that it had really weighed up the pros and cons and considered alternative approaches was not an adequate response.

However, let us work on the assumption that the Government are not going to privatise Channel 4 and that they are going to examine the future funding of the BBC. It seems that this is a time to be ambitious. The Government are right that levelling up and impartiality should be the focus of the BBC midterm review, but I argue that the role of PSBs should be looked at alongside the potential huge contribution of the TV and film production, broadcasting and content distribution sectors to levelling up. The creative industries generally and these sectors specifically should be right at the heart of industrial policy, and the Government should not be afraid of giving strategic direction.

The UK is attracting huge investment. Global players are here because of the facilities and talent that they can draw on and the incredibly rich ecosystem that has largely been nurtured by public service broadcasters. However, the sector remains too focussed on London and the south-east, and too metropolitan and liberal in outlook. This will not do. Diversity is about more than protected characteristics. It is about diversity of social background, geography and viewpoint, too. If these sectors are to provide well rewarded, fulfilling jobs in the post-automation world, they must be more geographically dispersed and more socially inclusive. That means a skills policy and tax incentives for the whole sector sitting alongside renewed PSB objectives and some clear targets.

It also needs to be specific. For example, incentives and policy should drive the growth of Salford as a TV production and facilities centre, building on the historic investment that ITV has made in the region, and encourage the clustering of businesses so that, across the whole range of on-screen and off-screen roles, young people can have a career in this sector without moving to London.

Cardiff has nurtured remarkable talent and is incredibly creative. Much of this stems from huge cultural and economic input from the BBC and now the right mix of training, tax incentives and political drive should be applied with the ambition of making it a world-class drama production centre. Glasgow, the home of BBC Scotland, STV and numerous small independent production companies championed by Channel 4, needs the Government to incentivise global businesses that are producing great content in the UK to bring returning series to Scotland.

When I have discussed levelling up and the role of PSBs with senior players in the global businesses that are investing so heavily in the UK, the message is clear. They value the mixed ecology and the role of the BBC and other PSBs, and they want to do more outside London. Yet vast investment in studios and stages is still concentrated in the south-east and, if you want a job in many of the roles in the sector, you need to move there. When I ask them what would persuade them to build studios and stages in other parts of the country, the answer is that they need to be able to access the full range of skills and facilities that support major productions. They also say that they need leadership and grip from the Government. I would add that the industry itself needs to work together to drive this change.

An ambitious Government who truly believe in levelling up will seize this opportunity and work with devolved Administrations to ensure that PSBs thrive at the heart of this sector, which has the potential to contribute as much to our economic success as to our cultural lives.

Freedom of Expression (Communications and Digital Committee Report)

Lord Gilbert of Panteg Excerpts

Thursday 27th October 2022 Lords Chamber

Moved by

[Lord Gilbert of Panteg]

To move that this House takes note of the report from the Communications and Digital Committee Free for All? Freedom of Expression in the Digital Age (1st Report, Session 2021-22, HL Paper 54).

[Lord Gilbert of Panteg (Con)]

My Lords, I am pleased to introduce this debate on the report of the Communications and Digital Committee, Free for All? Freedom of Expression in the Digital Age. I am very grateful to our outstanding committee staff. Our clerk was Alasdair Love and our policy analyst was Theo Demolder. Rita Cohen once again provided them and us with invaluable support and Dr Ella McPherson provided expert advice throughout the inquiry.

I am grateful too to noble Lords on the committee, many of whom are speaking today and all of whom brought great experience and expertise to this report. The committee is thriving under the fine leadership of my noble friend Lady Stowell of Beeston; I am very much looking forward to her contribution today.

This report was published under my chairmanship in July last year, since when there have been many significant developments and changes in digital regulation and more widely. I was privileged to sit on the Joint Scrutiny Committee for the Online Safety Bill which reported at the end of last year.

Having heard the debate on the demonstrations in Iran, we have to reflect that free speech is still something to be cherished and something that brave people are dying for today. Freedom of expression is about not being prevented from speaking one’s own mind. It is the bedrock of free societies. Although it is subject to important legal limits, including against the incitement of violence and defamation, we must remember what Lord Justice Warby referred to in one judgment as

“the well-established proposition that free speech encompasses the right to offend, and indeed to abuse another.”

It was evidence taken during our previous inquiry on the future of journalism that led us to turn to freedom of expression. We had heard about how the market power of Google and Facebook was threatening media freedom. I am very pleased that the committee is continuing to champion the media and pursue our recommendation for an Australian-style mandatory bargaining code to ensure that publishers receive fair compensation for the use of their content.

It was clear from the outset of this inquiry that there are two major problems online. The first is the dissemination by platforms of the worst kind of content: that which is either illegal or harmful to children. The other problem is the opposite: platforms removing legitimate content or treating some political viewpoints more favourably than others. Among many examples we heard about were Twitter banning Donald Trump while still allowing Ayatollah Khamenei to incite violence against Israel and praise jihadi groups; and Facebook choosing to treat a New York Post story as misinformation, with no evidence, at the same time as taking no action against Chinese state media when they spread lies about the genocide in Xinjiang.

At the core of these twin problems of aggressive promotion of harmful content on the one hand and overremoval of posts on the other is the dominance of the big platforms. Their monopoly of power means that they do not have to respond to users’ concerns about safety or free speech. These companies have monopolised the digital public square, shutting out new entrants that might be able to provide better services.

Tough competition regulation would unleash the power of the market to raise standards. It is a central part of the approach that we recommend in our report and we concluded that it was urgent. The delay in bringing forward legislation on the Digital Markets Unit is disappointing. I hope the Minister will agree that swiftly fixing broken markets to increase competition is the right and indeed Conservative thing to do.

There are two other pillars to the holistic approach we recommend which have not received enough attention. One is digital citizenship initiatives. Schools and public information campaigns both have a role to play in improving online behaviour. One person’s abuse of their right to freedom of expression can have a chilling effect on others, leaving them less able to express themselves freely. There is now much evidence that women and girls most often are being silenced by others online. However, regulation is not the only answer here. Alongside really joined-up, consistent citizen initiatives, an improvement in our public discourse would be a good start. Lord Williams of Oystermouth told us that “abrasive and confrontational styles” of discussion

“do not come from nowhere.”

Indeed. Politicians and other public figures should be setting a better example, showing that we can disagree while respecting those we are arguing with and not condemning as extremists those who have different viewpoints from our own.

The other pillar is regulation of the design of the biggest platforms. Freedom of expression is the right to speak out, but there is no corresponding obligation on others to listen. We called for users to be empowered with tools to filter the type of content they are shown. Everyone has their own individual sensitivities and preferences and only they, if they are an adult, can really decide what they want to see. I am glad that the Government have gone some way in implementing this with new clauses in the Online Safety Bill, which I will come to a moment.

It is not the existence of individual pieces of content which in some circumstances and to some people can be harmful that is the problem, but the way in which algorithms serve up that content in unrelenting barrages. The devastating impact of these business models was laid bare in the astonishing evidence at the inquest into the death of Molly Russell, which we would never have seen were it not for the persistence and courage of her father, Ian Russell. The horrendous material that was targeted, promoted and recommended to Molly changed her perception of herself and her options. Seeing the systemic nature of her abuse in the coroners’ court will help us to take action to save lives, and I hope that Ian and his family find some comfort in that.

Design regulation means ensuring that the largest platforms’ content-creation algorithms, choice architecture and reward mechanisms are not set up to encourage users’ worst instincts and to spread the most unpleasant content the most quickly. Such measures would get to the heart of those business models, which centre on keeping users logged in and viewing adverts for as long as possible—even if that means stoking outrage.

We should be taking different approaches to protect children and adults. For adults, we want a space where they do not find manifestly illegal material but can control their own online environment by insisting that platforms put power in their hands, as I have described, which means an approach that allows adults to in effect create their own algorithms through approaches such as interoperability.

When it comes to children, we want to protect them from content that is not appropriate for their age, but surely we want more than that. We should be aspiring to an online environment that is positive and enriching, and which helps them to grow and learn safely: a space where their privacy is respected and where every stage of the design process puts these objectives ahead of the financial interests of the platform.

It is obvious, then, that platforms and other online services need to know the age of their users. The way in which they do this and the degree of certainty they would need will depend on the risk of children using the service and the risk of children encountering harmful material or design features if they do. That is why, while I will passionately champion free speech when we come to the Online Safety Bill, I will also support the call led by the noble Baroness, Lady Kidron, for a set of standards for age-assurance technology and approaches that preserve privacy. Well-designed and proportionately regulated age assurance is the friend, not the enemy, of free speech.

I have outlined the approach favoured by the committee in its report, and now I turn to the Bill’s approach. We have been told repeatedly by officials and Ministers that the Online Safety Bill is simply about platforms, systems and processes, rather than content. This is incorrect. These are systems and processes to remove content. Their compliance with the legislation will be judged according to the presence of content, even if a single piece of content would not be enough for a platform to be deemed non-complaint.

The “legal but harmful” duty has been the subject of so much debate. Its supporters are right that it is not straightforwardly a duty to remove content; it is about platforms choosing a policy on a given type of legal but harmful content and applying it consistently. However, this is not nearly as simple or as innocuous as it sounds. The vagueness of the concept of harm gives Ofcom significant definitional power. For example, a statutory instrument might designate information which has an adverse physical or psychological impact as a priority category which platforms must include in their terms and conditions. A platform that said that it would not allow such information could be penalised by Ofcom for not removing content which the regulator feels meets this standard but which the platform does not, because the platform either does not believe it is untrue or does not believe it is harmful.

When we asked why it would not be simpler to criminalise given harms, part of the response was that many of those legal harms are so vague as to be impossible to define in law. It is not clear why that would not also make them impossible to regulate. As a committee, we have always felt it a crucial point of principle to focus on the evidence in front of us, and when we did, on this issue, a consensus quickly emerged that the “legal but harmful” provisions are unworkable and would present a serious threat to freedom of expression. They should be removed from the Bill.

We also raised concern about the duty to remove illegal content as currently drafted. The problems with this duty have not received nearly as much attention as the “legal but harmful” duty, but might, I fear, be significantly more dangerous. Unlike with “legal but harmful”, this is straightforwardly a duty to remove content. Of course no one wants illegal content online. If it really is illegal, it should be removed, but we are asking platforms to make decisions which would otherwise be left to the courts. Prosecuting authorities have the time and resource to investigate and examine cases in great detail, understanding the intent, context and effect of posts. Platforms do not. Neither platforms’ content moderation algorithms nor their human moderators are remotely qualified to judge the legality of speech in ambiguous cases.

The new communications offences in Part 10 of the Bill, which have their merit, show the problem most clearly. A platform will have to remove posts which it has reasonable grounds to believe are intended and likely to cause serious distress to a likely audience, having considered whether there might be a reasonable public interest defence. Even courts would struggle with this.

If we oblige platforms to remove posts that they have “reasonable grounds to believe” might be illegal, there is a real danger, surely, that they will simply remove swathes of content to be on the safe side, taking it down if there is the slightest chance it may be prohibited. There is no incentive for them to consider freedom of expression, other than some duties to “have regard for” its importance, which are currently much too weak. Legitimate speech will become collateral damage.

I do not pretend that we have all the answers to these concerns of how to ensure proportionality and accuracy in removing potentially illegal content, but I know that this is something the Government have been looking at. Can my noble friend tell us whether the Government acknowledge the concern about overremoval of legal content and whether consideration has been given to solutions which could include a clear and specific duty on Ofcom to have regard for freedom of expression in designing codes and guidance and using enforcement powers, or more fundamentally, a change in the standard from “reasonable grounds to believe” to “manifestly illegal”?

The committee in its report found drafting of the Bill to be vague in parts, perhaps because it is born of a desire to find some way of getting rid of all the bad things on the internet while avoiding unintended consequences. As Susie Alegre, a leading human rights lawyer at Doughty Street Chambers put it, the Bill is so unclear that

“it is impossible to assess what it will mean in practice, its proportionality in relation to interference with human rights, or the potential role of the Online Safety Bill in the prevention of online harms.”

Ofcom will be left to try to make sense of and implement it. Ofcom is rightly a very well-respected regulator, but it is wrong to hand any regulator such sweeping powers over something so fundamental as what citizens are allowed to say online. There is no analogy in the offline world.

Think of how contested BBC impartiality is. Imagine how much more furiously the debate about Ofcom impartiality will be when both sides of a highly contested debate claim that platforms are wrongly taking their posts down and leaving their opponents’ posts up, demanding Ofcom take action to tackle what they see as harm.

The only winners from all this will be the likes of Facebook and Google. Having left their business models fundamentally unscathed, the Online Safety Bill will create obligations which only they can afford to deal with. New entrants to the market will be crushed under the compliance burden.

Before I conclude, on enforcement, it is sometimes said that the internet is a Wild West. It is not. We are right to put in place regulatory regimes across the digital landscape and, for all its flaws, this Bill is an important step. However, the report identified 12 existing criminal offences and a number of civil law protections that are already in place, and which are especially relevant to the online world. These offences already cover many of the behaviours online that we most worry about. The problem is not a lack of laws but a failure to enforce existing legislation. We called on the Government to ensure that existing laws are enforced and to explore mechanisms for platforms to fund this, and to require platforms to preserve deleted posts for a fixed period.

It will soon be time for this House to turn its attention to detailed scrutiny of the Online Safety Bill. I hope that noble Lords will find the committee’s report and today’s debate a useful preparation. I firmly believe that the approach that we suggest would make the internet safer and freer than would the current proposal. I would like to see an Online Safety Bill that focuses on platform design and content which is manifestly illegal, and which goes much further to protect children. It must also contain strong incentives for platforms not to take down legal content, including a prohibition on removing content from legitimate news publishers.

Parliament must provide ongoing scrutiny on the online safety regime, competition, and all areas of digital regulation, to help regulators do their jobs effectively and show that their powers are never again so completely overtaken by changes in the digital world.

I look forward to hearing from my noble friend the Minister, and warmly congratulate him on his appointment. I am sure that he will approach this debate and the online safety Bill with characteristic depth of thought. I beg to move.

--- Later in debate ---

[Lord Gilbert of Panteg (Con)]

I will be very brief. The internet, let us be clear, has given voice to many marginalised people and in so many ways has transformed our lives for the better. What we have seen today is a really serious and constructive debate about what we need to do to deal with the societal issues that have come with the digitalisation of the world that we live in.

I thank all noble Lords who gave such insightful contributions today, in particular my noble friend the Minister for his response, and especially the noble Baroness, Lady Merron, and the noble Lord, Lord Clement-Jones. What they demonstrated was that the House really wants to come together to fix these issues and I hope that my noble friend will seek a cross-party approach to this legislation and engage the whole House in coming up with the solutions that we need to resolve these problems. Would he thank his officials and the succession of Ministers who came to see us? His officials were very generous with their time.

I will also take this opportunity, on behalf of the committee, to thank Ofcom for engaging with us. I am confident its people are the right people for this job; they will do an excellent job and we need to hand them a seriously workable piece of legislation, while not forgetting our role as Parliament in asserting societal priorities as Ofcom moves forward with this task.

Motion agreed.

Age Assurance (Minimum Standards) Bill [HL]

Lord Gilbert of Panteg Excerpts

2nd reading
Friday 19th November 2021 Lords Chamber

[Lord Gilbert of Panteg (Con)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Lipsey. I have really enjoyed the contributions that we have heard already today. Like other noble Lords, I congratulate the noble Baroness, Lady Kidron, on introducing this Bill and explaining it so clearly.

The Communications and Digital Committee, which I chair, has been examining digital regulation and I have been quite clear in my own mind, and in talking about the work of our committee, that we must be ultra-vigilant in ensuring that proposals to regulate in the digital space neither put at risk the fundamental right to freedom of expression or undermine privacy. In our recent report on freedom of expression online, we were quite critical of some aspects of the proposed online safety Bill which we believe do just that. However, we also said:

“Children deserve to enjoy the full benefits of being online and still be safe.”


We do not just mean minimising harm; we want the internet to be a positive place for children and adults.

For children, we want the internet to be a place where safety is paramount, a place that we—adults—design for them, so that at every stage of their childhood their lives online are rich, rewarding and educational, where they are supported in their emotional development, helped to learn, play and socialise confidently, and are protected from harm. For adults, we want an environment where content that Parliament has made illegal is swiftly removed, where they have control of what they see, and where they can express themselves freely in an environment designed to encourage civility rather than to heighten conflict. That is what we seek to achieve: an internet that works for everyone, adults, and children.

I am not a doom-monger. The internet and the digital spaces that it has provided have bought huge benefits to society, as the noble Lord, Lord Lipsey, so movingly described regarding that amazing technology which we saw, effectively giving blind children the opportunity to participate in the same world as the rest of us. However, only if we treat adults as adults and children as children can we deal with the darker side of the internet and improve all our lives online.

We can only treat children as children, and provide them with the rich, rewarding, positive place that I have described, if we know who they are. It is astonishing that, as currently drafted, the online safety Bill does not tackle commercial pornographic websites by blocking access to them by children. I hope that my noble friend the Minister can tell us that this omission will be addressed.

However, as the noble Baroness, Lady Kidron, has so carefully explained, age assurance encompasses a range of systems that services use to estimate the age of its users. The 5Rights Foundation sets out 10 different approaches to age assurance. The system used by services will obviously need to take into account two factors: the likelihood of children having access and the potential for them to be harmed if they do. Therefore, a great degree of certainty would be required by a service providing pornographic content and much less certainty for a website designed for use by children, that might simply want to serve them content that is most appropriate to their age.

Here we come to the most important point about the Bill. Platforms and services are already using age assurance technology. They seem to know our ages and everything else about us when they are flogging us stuff. The same underlying technology is already used to create age appropriate environments and will be used by platforms and other online services to meet the requirements of the age-appropriate design code and other safety requirements in the future. So as my noble friend Lady Harding pointed out, this Bill does not introduce age assurance; it simply introduces a regime to ensure that minimum standards are met and that privacy is preserved.

Time and again, the giants of Silicon Valley have demonstrated that they have very little regard for our right to freedom of expression, removing content based on their own business interests, political preferences and whims, and they most certainly cannot be trusted with our privacy. However, I have no doubt that we can square this and that we can protect children while preserving privacy.

Technology is constantly advancing. The objective I have set out of creating a vibrant, positive place for children, while protecting them from harm, can be achieved without the kind of platform-controlled, privacy-invading, age-verification and identity-checking approach we were considering just a couple of years ago. But we need to get on with it, because age assurance is happening now, and we need these measures to protect our privacy.

A Bill which requires minimum standards for the use of these systems, with safeguarding privacy at the heart of those standards—something I can support—seems to me to be a very simple measure. I hope the Government can support it too.

UK Journalism (Communications and Digital Committee Report)

Lord Gilbert of Panteg Excerpts

Wednesday 13th October 2021 Grand Committee

Moved by

[Lord Gilbert of Panteg]

That the Grand Committee takes note of the Report from the Communications and Digital Committee Breaking News? The Future of UK Journalism (1st Report, Session 2019-21, HL Paper 176).

[Lord Gilbert of Panteg (Con)]

My Lords, I am pleased to introduce the debate on this report. I am grateful to the staff for their assistance in preparing the report. Our clerk was Alasdair Love and our policy analyst Theo Demolder. They and the committee were provided with great assistance by Rita Cohen. I would also like to thank Professor Jane Singer, who provided expert advice throughout the inquiry.

I am especially grateful to noble Lords who sit on the committee, many of whom are speaking today and all of whom made a huge contribution to this inquiry where, typically, despite starting out with a range of perspectives, after listening carefully to the evidence and discussing the issues, we ended up on common ground and with a real sense of the need for urgency in addressing the issues that we identified. I look forward to hearing from my noble friend the Minster and welcome him to the Dispatch Box for the first time responding to a report from the Communications and Digital Select Committee, and warmly congratulate him on his appointment. Today I will be able to cover only some of our main findings and I am sure other colleagues will fill in some of the gaps.

Print circulations of newspapers have been falling and news is increasingly consumed online, yet only 8% of people pay for news. Even when the growth in digital subscriptions is taken into account, the average national newspaper circulation fell by 57% between 2009 and 2019. For regional newspapers, the decline was 85%. These figures are stark. We heard of the closure of hundreds of newspapers, with many more forced to consolidate and lay off staff. And this is not just about the loss of long-established publications. HuffPost and BuzzFeed, not so long ago held up as the outlets of the future, have both dramatically cut their UK operations.

Of course, the onset of the Covid-19 pandemic deepened the challenges facing the media industry. But these long-term, structural threats will not go away. With so few people paying for online news, publishers are dependent on the online advertising market. The boom in online media inevitably means a tougher time for newspapers, having to compete to sell advertising space with an ever-growing number of content providers.

However, as the Competition and Markets Authority has proved, the online advertising market is opaque and unfair. In 2019, Facebook and Google’s dominance allowed them to take 80% of the £14 billion spent on digital advertising in the UK. Even in the £1.8 billion “open display” market, in which content providers sell advertising space on their own websites, publishers receive only 65p of every £1 that advertisers spend. The rest goes to a range of intermediaries, which are owned overwhelmingly by Google. We asked Google if it could name any other market in which such clear conflicts of interest, from operating on the buyer side as well as the seller side, would be permitted. It could not. Put simply, publishers are finding that the game is stacked against them. That Google would behave as it has is to be expected. It is the slowness of the Government and regulators to act to stop it that is the cause of frustration.

Our committee first called for the CMA to conduct a market study in April 2018. This recommendation having initially been opposed, it took until July 2019 for the study to be launched and until July 2020 for it to conclude. In this report, we again recommended that the Government should set up the proposed Digital Markets Unit as a matter of urgency. The Government announced its establishment on the day our report was released—surely the least time it has ever taken for a Select Committee recommendation to be accepted.

The devil, though, is in the detail. The Digital Markets Unit currently operates as a shadow: it does not yet have the statutory powers it needs to act and it appears that it will not be fully operational until 2023 at the earliest. As one publisher told us, whereas Facebook’s motto was

“Move fast and break things”,

the Government’s seems to be

“Move slowly and allow the platforms to break everything”.

Among the Digital Markets Unit’s responsibilities should be the enforcement of a mandatory bargaining code to govern the relationship between platforms and publishers. Facebook, Google and others profit from publishers’ content in a variety of ways. Links to news stories provide an incentive for people to use the platforms’ services, where they can show them advertising and collect data on their interests. However, publishers need the platforms much more than the platforms need the publishers, so they cannot afford to walk away: more than a third of publishers’ traffic comes from Facebook and Google alone. Although the prospect of regulation has prompted platforms to pay some publishers for the use of some of their news in some countries, these schemes are highly limited and tend to favour the largest companies. As the CMA noted, publishers

“have very little choice but to accept the terms offered by these platforms, given their market power.”

The platforms’ opposition to the mandatory bargaining code in Australia offers a preview of how they will fight to prevent such a code being drawn up in the UK. Google threatened to withdraw its search engine from Australia if the Bill establishing the code passed. Facebook banned news from its service for four days. Although the platforms were able to water down the code, it provides a useful base on which our Government should build. Establishing a mandatory bargaining code is not about special pleading or pretending that the news industry can return to a bygone age. It is about fixing the problems to which the platforms’ untrammelled market powers give rise. So I ask the Minister: do the Government rule out a bargaining code?

Although it is in orders of magnitude smaller, we need to give serious thought also to how the market power of the BBC affects smaller players. As well as being the most watched and most listened to, in the age of online news the BBC is now the most read source of news in the UK, competing with newspapers, including local newspapers, as never before. We recommended that the BBC website should include an aggregator section to drive traffic to smaller and local websites. Our inquiry was not about the BBC, nor media regulation, but the economic security of the news industry and the future of journalism. None the less, the BBC plays such a dominant role in the news landscape that it was an important part of our work, especially in relation to diversity and plurality, which I will now turn to.

There is a lack of data on diversity across the industry. But, from the statistics available, it is clear that there is underrepresentation of people from black and other minority ethnic backgrounds, and of disabled people. There is also great concern about retention and progression, an area where much greater data is needed. Will my noble friend the Minister give Ofcom the power it needs, and has asked for, to collect a wider range of data from PSBs to enable it to better to monitor diversity?

Many great journalists entered the profession without completing higher education. Now, though, across the industry 98% of early-career journalists come from the 50% of young people who go to university. Many must also comply with costly master’s programmes and low-paid internships, further narrowing the pool of talent. The Government have taken some steps to make the apprenticeship levy more flexible, but, once again, witnesses we spoke to were critical of the levy, which is failing the industry and young people in this sector. We repeated our call for urgent reform of the levy if we are to have a news media that truly reflects and understands the public it serves.

It was clear to us that it is important that news organisations, in addition to be being representative of the country in terms of protected characteristics, hire people from a geographical range of backgrounds and, especially in the case of PSBs, from a range of perspectives, to avoid a homogeneity of mindset that gives rise to partiality of output.

It is not the job of news organisations to please politicians, but rather to be constantly challenging us, and we should be very wary about levelling accusations of bias when we hear something we do not like. However, BBC staff, who cannot be dismissed as ideologically driven, have criticised the BBC’s liberal metropolitan outlook—which is not the same thing as political bias. We must take seriously warnings such as that of Roger Mosey, former head of BBC TV News, that the BBC appears to be “edging towards groupthink”, and Sarah Sands’ observation, when stepping down as editor of the “Today” programme, that the BBC

“can treat social conservatism with polite incomprehension”.

For the most part, this is not journalists setting out to sway the audience one way or the other; it is born of a blindness to perspectives and experiences different from their own.

We welcomed Tim Davie’s commitment to impartiality and his efforts to apply high levels of editorial standards to the use of social media by BBC presenters, but we felt that, to protect impartiality in the long run, Ofcom should be empowered to ensure that public service broadcasters monitor the accuracy and impartiality of their journalists’ public social media posts, and take appropriate action where necessary.

More broadly, it has become harder over recent years to distinguish fact from opinion—or outright fiction—online. Dire warnings about a “post-truth age” and a “pandemic of fake news” are not always backed up by rigorous data. Nevertheless, it is clear that more needs to be done to equip people with the critical and technological skills they need to navigate online news. Media literacy means more than identifying “fake news”; it is about understanding journalistic processes and their value, how news is presented online and how it is funded. This is not only something to be taught in schools; we heard that older people can be among those most in need of support. There are many commendable initiatives in this area, but they lack co-ordination. There is a role for the Government to use their convening power to help guide Ofcom, the BBC, schemes run by the platforms and those in the third sector toward greater coherence.

We have a short debate today, and I will be brief in concluding. We covered a number of other areas, and made recommendations about the need for much greater co-ordination of the wide range of journalism funding schemes, especially the funding of innovation, and envisaged a convening role for government to ensure that these schemes are truly delivering greater plurality, while equipping journalists to stay ahead of, and to use, technology to maximise the reach of their content. We welcomed moves by the Charity Commission to recognise public interest journalism as a charitable purpose. We recognised the vital role of journalists, especially at a local level, in publicising the work of public bodies, especially the courts, and we welcomed the Government’s commitment to improve journalists’ access to court proceedings.

We looked at another aspect of the dominance of platforms—the significant control platforms have in determining how and whether users see news stories, and in censoring whomever and whatever they wish, based on their political sensibilities, their business interests, or seemingly sometimes simply on a whim, rather than bringing plurality. We were concerned that the growth in online news will mean more and more control for Silicon Valley elites over what we read—and, ultimately, how we think.

I look forward to hearing noble Lords’ views on this and the many other recommendations in our report, and I hope that the report, and today’s debate, will inform the House’s thinking as we look forward to the upcoming media Bill and legislation to establish the Digital Markets Unit.

This year, as every year around the world, dozens of journalists have been killed doing their work and hundreds have been imprisoned. In Afghanistan, journalists have been rounded up and beaten today. So, when we call for urgent action to support journalism as the industry journalists work in goes through huge structural change, we are calling not for intervention to support a declining industry but for recognition that journalists are a pillar of our democracy and, in this rapidly changing, polarised world where a range of voices needs to be heard more than ever, there is something precious that we will miss in more ways than we can imagine if we do not act urgently. I beg to move.

--- Later in debate ---

[Lord Gilbert of Panteg (Con)]

My Lords, in the weeks leading up to the 2016 US presidential election, I was working for a bit in the United States. I have to say, I came back much more enthusiastic about the BBC and our news media than perhaps I have ever been. It is not just about our big national news titles; it is also about the local news titles which noble Lords have talked about eloquently today. The media is an important part of the fabric of our society, and local reporting is dying before our eyes.

This was a typically fascinating debate. Like the noble Baroness, Lady Grender, I am glad that the committee did not bring press regulation into scope. A number of noble Lords brought a couple of additional issues into consideration today. The noble Viscount, Lord Colville, was right to highlight the plight of freelance journalists, and my noble friend Lord Grade rightly highlighted the additional point about copyright, which is very important. I always want to highlight the work of the committee, and I draw your Lordships’ attention—particularly that of my noble friend Lady Meyer and the noble Baroness, Lady Fox—to our more recent report on freedom of expression online, which highlights a number of the issues to which they referred.

I conclude by thanking all noble Lords who contributed, particularly those from the Front Bench. The noble Baroness, Lady Grender, proposed this report in the first place, made a huge contribution and has had the opportunity today to reply to it. I thank her particularly for her contribution, the noble Lord, Lord Bassam, for his support for the work of the committee and this report in particular, and the Minister for a very fulsome response. On behalf of the committee, we look forward to working with him across our various briefs.

Motion agreed.

Public Service Broadcasting (Communications and Digital Committee Report)

Lord Gilbert of Panteg Excerpts

Thursday 27th May 2021 Lords Chamber

Moved by

[Lord Gilbert of Panteg]

That this House takes note of the Report from the Communications and Digital Committee Public service broadcasting: as vital as ever (1st Report, Session 2019, HL Paper 16).

[Lord Gilbert of Panteg (Con)]

My Lords, I am pleased to introduce this debate on the Communications and Digital Committee’s report, Public Service Broadcasting: as Vital as Ever. I declare some interests. I was a guest of S4C at a Wales v Ireland rugby match in March 2019 and of ITV at the National Television Awards in January 2019. I was invited to participate in the Royal Television Society Cambridge conference in September 2019 in my capacity as committee chair. The conference was hosted by ITV, which provided hospitality and accommodation.

I am grateful to the committee staff for their assistance in preparing the report. Our clerk was Theodore Pembroke and our policy analyst Theo Demolder. They and the committee were provided with great support by Rita Cohen. I also thank Professor Steven Barnett, who provided expert advice throughout the inquiry, and the many witnesses who gave us evidence.

I am looking forward today to hearing from noble Lords who were members of the committee at the time of the report, and others who have joined the committee since. As always, they have bought extensive experience and expertise to the work of the committee and the deliberations of this House.

We issued our call for evidence a little over two years ago, in March 2019, and reported 18 months ago in November of that year. Since then, much has changed. Covid has hit us all and led to huge disruption for PSBs, accelerating some changes already under way in the industry while bringing new challenges to the thriving production sector and the wider creative economy and, in particular, its large freelance workforce.

The Government have announced what looks like a blanket and untargeted pre-watershed ban on HFSS advertising that will impact the business models of commercial PSBs while leaving online platforms untouched.

Ofcom has published its five-year review of PSBs. Like us, it found:

“Public service content still matters hugely to people and society”


and that PSBs

“underpin the UK’s creative economy.”

However, it argued that

“radical changes to support PSBs shift … to online”

are needed.

The report from Lord Dyson shocked many of us who want a strong, independent and trustworthy BBC. The Government, in their so-far measured response, have indicated further changes in the way the BBC is governed, which I hope the Minister will be able to say more about today.

In introducing this report, I cannot help feeling that the hard work of Select Committees, the engagement and commitment of our witnesses and the time put into responding by Ministers and officials deserve more timely debate in this House while reports remain topical. This inquiry focused on the role of PSBs—both the BBC and commercial PSBs—the financial pressures they face, the nature and future of the PSB model and the impact of the changing production landscape in the age of video on demand.

We looked in great detail at drama and factual content, which account for around 70% of Netflix and Amazon programming, with eye-watering budgets of up to £15 million per hour. News and current affairs, barely covered by the SVODs, was not a focus of our inquiry but was considered in more depth in our subsequent report on the future of UK journalism, where we called for much greater diversity in newsrooms and highlighted the danger of groupthink and narrowness of thought.

Trust, though, is everything, and that trust has been badly hit by what Lord Dyson found at the BBC. Drawing on our inquiry, it seems to me that it is vital that we restore that trust because, as we concluded, the evidence we heard indicated that public service broadcasting is as important as ever. The Government agreed and, in their response, said that PSBs provide

“significant cultural, economic and democratic value to the UK”

and that the broadcasters

“will need to adapt to the changing media landscape to sustain their value”.

As we all know, the way in which we watch television is changing—20 years ago, most people relied on five free-to-air channels provided by the PSBs. These broadcasters now face competition from hundreds of other channels and online services. Subscription video on demand services—or SVODs—such as Netflix and Amazon Prime have enjoyed rapid success. They have made available thousands of hours of content and offer each viewer a personalised experience. More than half of UK households now subscribe to an SVOD, while YouTube is also a major competitor. SVODs operate globally and have enormous resources, leading to concerns that PSBs are being priced out of the market for making high-quality television, limiting their ability to create drama and documentaries that reflect, examine and promote the culture of the UK.

We sought to understand the contemporary role of PSBs and whether the compact—the obligations they take on in exchange for privileges—is fit for the age of video on demand. I would like to outline the importance of the committee’s recommendations for the thriving of public service broadcasting. Our evidence, like Ofcom’s, overwhelmingly indicated that public service broadcasting is as important as ever to our democracy and culture, as well as to the UK’s image on the world stage. PSBs contribute to the economic health of the UK and support the wider creative industries.

A wide range of witnesses told us how PSBs inform our understanding of the world, reflect the UK’s cultural identity and represent a range of people and viewpoints. Although other channels and services offer high-quality UK programmes, the availability and affordability of PSBs through digital terrestrial television remain unmatched. Their availability allows them to provide “event television”: moments that bring the nation together, such as major sports events, documentary series and landmark drama such as the virtual water-cooler drama “Line of Duty”, commissioned by the BBC from an ITV-owned production company, and Channel 4’s powerful and important “It’s a Sin”, which told a story that needed to be heard and which was public service broadcasting to a T. To strengthen the availability of event TV, we recommended that the Government should review the listed events regime to extend the availability of significant sports events on free-to-air television.

I should add that, while the committee was clear that losing universal and affordable public service broadcasting would make our society and democracy worse off, we recognised the contribution of great content from non-PSBs that met many of the broader public service objectives—content of great quality that was original and made for Britain—and recommended that Ofcom should consider the contribution of content from non-PSBs when reviewing the PSB landscape. But we found that PSBs are struggling to achieve their mission to serve all audiences in the face of increased competition and changing viewing habits. They are not serving younger people and people from minority backgrounds well enough. Their legitimacy depends on serving these groups better.

To do this, PSBs must be willing to take creative risks and do more to involve people from different backgrounds in developing and making programmes. We recommend that Ofcom should be empowered to gather data on the diversity of commissioners and production crews making programmes for PSBs. We heard concern about representation of the nations and regions of the UK. Investment in TV production is too heavily concentrated in London. Many viewers believe that London and the south-east, as well as hub locations such as Glasgow and Cardiff, are overrepresented at the expense of other areas. Although progress has been made and new entrants have made high-budget series outside the capital, the economic benefits of investment have not spread widely enough.

Public service broadcasters are obliged to commission a certain percentage of programmes outside the M25, in the regions and nations of the UK. This is critical to building a skills base in different areas and ensuring that viewers see their localities represented on screen, but Ofcom must ensure that PSBs uphold the spirit of these obligations. The best way to support production in the regions and nations is to invest more in returning—rather than one-off—series and to commission production companies with headquarters outside London.

The UK TV production sector has enjoyed impressive growth in recent years, including in exporting programmes. SVODs and other commissioners such as HBO and AMC have driven significant investment, encouraged by high-end tax relief. However, public service broadcasters remain essential to the UK production sector. They spend considerably more than SVODs and other broadcasters on original UK programming.

The terms of trade—the code of practice drawn up by PSBs setting out principles for agreeing the terms of commissioning independent productions—encourage independent production companies to work with them. We heard from many witnesses that the terms of trade were one of the main reasons they work with PSBs. Their success relies on both PSBs and the production sector being willing to update the terms of trade as the market changes.

PSBs are also vital to the success of SVODs, as part of the UK’s thriving mixed ecology—a mutually reinforcing system of specialist skills, labour, production companies, broadcasters and other assets that are supported by both public and private investment. This ecology is integral to the wider creative industries. It nurtures creative and other skills used in filmmaking, and it is a vehicle for exhibiting British talent to an international audience. PSBs are at the heart of this ecology. We heard from Netflix that co-production

“works extremely well for us as a model and it seems to work extremely well for the rest of the industry as well.”

Between 2014 and 2018, co-commissions between SVODs and broadcasters almost doubled, from 16 to 30.

The health of the independent production sector depends on maintaining the supply of production crews to meet increased demand. There is a serious risk of the sector reaching full capacity and overheating. We recommended that the Government should address skills shortages in the sector through urgent reform of the apprenticeship levy and extending the high-end TV tax relief. Public service broadcasters are especially vulnerable to further cost inflation. The apprenticeship levy simply does not work for much of the creative sector; the committee has illustrated this time and again in a number of reports. The Government’s response is largely one of denial, with commitments to some small-scale pilots. As we shape up for a post-Covid national effort to train young people for the roles of the future, what plans do the Government have to do something really impactful to sort out this failing policy area?

If public service broadcasters are to continue to serve us, and to be able to afford to make world-class programmes, they must remain financially viable. The BBC should not be given further responsibilities without a corresponding rise in income. We expressed concern that the integrity of the licence fee, the guarantor of the BBC’s financial independence, has been undermined. In particular, the Government should not have asked the BBC to accept responsibility for over-75s’ licences, nor should the BBC have agreed to take it on.

A new, independent and transparent process for setting the licence fee is necessary. We recommended establishing a new body, to be called the “BBC Funding Commission”, which should be in place in time for the next round of negotiations. The Government have not chosen this route, but will the Minister commit today to a transparent and open process next time round? When we call for transparency, we have the BBC as well as the Government in mind.

The obligations public service broadcasters take on and the privileges that they receive in return must be balanced. However, we heard that, in a competitive environment, the PSBs’ traditional privileges were becoming less valuable. Most importantly, public service broadcasters have historically received mandated prominence, listed as the first five channels on the electronic programme guide. We supported Ofcom’s proposals to update this principle for the digital age, so that it covers on-demand viewing, but implementing a solution seems to be taking for ever, and I cannot understand why.

Digital terrestrial television will remain essential for the many viewers who cannot afford, or do not have access to, internet or pay TV, and free access to spectrum for PSBs must continue to be guaranteed. Given the pace of change in the market, we recommended that Ofcom should review whether TV platforms should be required to pay commercial PSBs a retransmission fee for carrying their channels.

Much of the regulation affecting broadcasting and TV production dates from a time when PSBs were dominant. They remain the largest producers in the UK, and regulation has enabled smaller players in the ecosystem to thrive. However, the sector is facing major changes because of the rising popularity of US-based SVODs, which are themselves likely to become consolidated.

As we found in our report, Regulating in a Digital World, regulation needs to become faster at reacting to changes in the digital economy. An example of this was the Competition Commission’s decision in 2009 to block the creation of Kangaroo, a joint venture of the PSBs to aggregate content from BBC Worldwide, ITV and Channel 4. In a report at the time, the committee strongly regretted the Government’s failure to intervene on public interest grounds. In 2018, Sharon White, the chief executive of Ofcom, said that the PSBs will need to “collaborate to compete” in the new environment. The opportunity that Kangaroo presented for Britain to be in on the ground floor at the start of video on demand is not the kind of opportunity that comes along often. That it was stopped on the runway is an example of a regulatory approach that harks to the past rather than looking to the future. It illustrates the need for much more flexible, forward-looking and joined-up regulatory thinking than we have.

If the UK is to continue to be a world leader in the creative industries, public service broadcasters must be enabled to thrive in the digital world. They must be held to account for their obligations, afforded full access to the commensurate privileges and supported to ensure that the important work that they do remains financially viable in an ever-more competitive environment.

I started by looking at the changes that have happened in the industry since we reported. Of course, the other big change is that the Government were re-elected with a thumping majority, an agenda to level up Britain, and no hesitation at all about playing a role in helping business to thrive in this fast-changing world. From their response, we know that the Government believe that PSBs play a central role in the ecology of the creative industries but that they need to adapt quickly to survive. I ask the Minister: what role do the Government envisage for the creative industries in their industrial strategy? How do they plan to support the production and content distribution sector? How can skilled work in production and content distribution contribute to levelling up? Will the Minister tell us what the Government will do to help to ensure that PSBs continue to provide, in the Government’s words,

“significant economic, cultural and democratic value across the UK”?

In particular, what will the Government do to help PSBs to adapt to the changing media landscape so that they continue to make that vital contribution? I beg to move.

--- Later in debate ---

[Lord Gilbert of Panteg (Con)]

My Lords, I will be brief. I thank all noble Lords for this excellent debate, with special thanks to members of the committee, past and present. I enjoyed the contribution of the noble Baroness, Lady Merron; it is great to see her on the Front Bench, in full grip of what I think is the best brief in government. I was moved by the tributes to Lord Gordon. He was a giant in the industry, but that was nothing to his reputation in Glasgow, which we visited during the inquiry and where literally everyone we met knew Jimmy.

Listening to the debate, it is clear to me that the industry will look very different in the years ahead—I do not disagree with everything that my noble friend Lord Hannan said. It seems to me that, in 10 years from now, the funding will look very different too. However, my noble friend Lord Holmes hit the nail on the head when he reminded us that it is all about the content. As the noble Baroness, Lady Grender, said, our mission is not to see public service broadcasting survive but thrive.

I thank the Minister for her reply. I also thank her, her ministerial colleagues and her officials for their support and co-operation with the committee’s work, and I would be grateful if she would pass that on. She gave full and measured responses. I welcomed her reaffirmation of the Government’s commitment to public service broadcasting and her recognition, again, of its vital economic, cultural and democratic role. I was very glad that she recognised so clearly the role of the Government in helping PSBs navigate the challenging future they face. I beg to move.

Motion agreed.

BBC and Public Service Broadcasting

Lord Gilbert of Panteg Excerpts

Thursday 5th March 2020 Lords Chamber

[Lord Gilbert of Panteg (Con)]

My Lords, I welcome this timely debate and congratulate the Labour Party on securing it and the noble Lord, Lord Young, on opening it so comprehensively. It is also a great pleasure to follow the noble Lord, Lord McNally, whose contribution was typically passionate and informed.

I am privileged to chair your Lordships’ Communications and Digital Select Committee. We recently published a report on the future of PSBs; in the time available, I will highlight only a few of our conclusions. Last year, as chair of the committee, I attended the Royal Television Society Cambridge conference as a guest of ITV and attended a Hyde Park concert as an audience member and guest of the BBC. The noble Lord, Lord Young, is right to highlight the economic as well as the creative role of PSBs and the BBC in particular. Many noble Lords who are speaking today have made notable contributions to our nation’s creative life, and I look forward to hearing from them. I will dwell not on the huge cultural contributions of PSBs but on their critical and economic role.

Our creative industries are huge, growing and world-class. We have all seen the superlatives. They are central to our economy and will provide the jobs of the future. In a post-AI world, creativity in all its forms will drive future job growth and provide satisfying and fulfilling careers for future generations as other professions and skills decline in the age of automation. Right at the heart of our creative sector is the rapidly growing and changing UK film and TV production sector.

When we started taking evidence, I thought that we would produce a report with recommendations on how we might help PSBs simply to survive in this rapidly changing world, in which they would be bound to decline. However, witness after witness, from the SVODs investing so heavily in UK production to independent producers and non-PSB commercial broadcasters, highlighted that it was the mixed ecology that made the UK such an attractive place for them in which to invest and create jobs. So it seemed that the question was not what we could do to help PSBs to survive but how to help them to thrive and continue to play a critical role at the heart of our creative industries, nurturing talent, taking risks and reflecting Britain in all its diversity. To me, that says that these industries must be at the heart of our future industrial strategy and central to our economic policy. I hope that the Minister will tell us whether the Government take that view.

In our report, we said we would miss the PSBs when they had gone and, as I said, we highlighted what needed to be done to ensure that that did not happen. That is not down to the Government alone. The PSBs, most particularly the BBC, have to change and adapt. I agree with the Secretary of State, who said today that diversity is about more than reaching younger and BAME audiences, critical though that is; it is about having fair and broad on-screen representation across all communities and reflecting the views of people outside London. Genuine impartiality is about having genuine diversity of thought and experience.

I pay tribute to the select committee that I chair. It is typical of your Lordships’ House: expert, experienced and diligent. We produced a comprehensive report and I have had only a moment or two to touch on a few of our recommendations. However, I want to touch on the issue of the future funding of the BBC. We looked at the evidence and took the view that the licence fee continues to be the best way to fund the BBC. We found that the BBC should not have been asked, nor should it have agreed, to take on the funding of over-75 free licences. However, while we were critical of the Government, we were also critical of the BBC, which negotiated that settlement, which came as part of a wider package that it welcomed at the time. We felt strongly that the way in which the BBC is funded needs to be open and transparent on all sides. We called for a funding commission. The Government may not agree with that or think that it is the right way forward, but does the Minister agree with Margot James, the then Minister, who said in evidence to the Committee that there was

“clearly a case for greater transparency”?

Does the Minister agree that the right way to have this debate is to start by asking what we as a society want the BBC to do, work out what that will cost and then, and only then, look at how that cost can be met? Does she agree that, while the BBC faces huge challenges and most certainly makes mistakes, it has a vital role in our human lives and our future economy, and that our task is to help it to meet those challenges and to thrive?

Lastly, does the Minister agree that finding someone to fill the inestimable boots of the noble Lord, Lord Hall, whom I thank warmly for his services as director-general, is going to be one tough task, and one that is for the BBC alone?

Regulating in a Digital World (Communications Committee Report)

Lord Gilbert of Panteg Excerpts

Wednesday 12th June 2019 Lords Chamber

Moved by

[Lord Gilbert of Panteg]

That this House takes note of the Report from the Communications Committee Regulating in a digital world (2nd Report, HL Paper 299).

[Lord Gilbert of Panteg (Con)]

My Lords, I have the privilege to introduce this debate on the report of the Communications Committee. I do so as chairman of that committee. I am most grateful to the staff of our committee for their assistance in preparing the report: Theo Pembroke, the clerk; Niall Stewart and Theo Demolder, the policy analysts; and Rita Cohen, the committee assistant. They have turned their excellent minds to a whole range of complex issues and have given the committee first-rate advice. I also thank Professor Andrew Murray of the LSE, who provided in-depth and expert advice throughout this inquiry. Of course I thank the members of the committee, who have brought have brought great expertise, experience and insight to this study of a complex and vitally important area of public policy. I declare an interest as a freelance consultant to Finsbury, a PR company, and I am an electoral commissioner.

The internet has enabled people and organisations to communicate, participate in society and democracy, and to transact business on a scale which would have been unimaginable only a couple of decades ago. However, regulation has not kept pace with the nature and scope of the digital services which now affect the lives that we live. A large volume of activity occurs online which would not be tolerated offline, including abuse and hateful speech. A handful of very large tech companies have come to dominate the environments in which they operate, buying up potential competitors. Self-regulation by online platforms is inconsistent, unaccountable and inadequate, so there is a compelling and urgent case for further regulation.

What is needed is not just more regulation but a new approach to regulation. More than a dozen UK regulators have a remit covering the digital world, but no single body has complete oversight. Regulation of the digital environment is fragmented, with gaps and overlaps. Problems are neglected until they become emergencies. Policymakers offer knee-jerk responses to media stories which may have unintended consequences. One of our witnesses described this as “regulation by outrage” and compared it to whack-a-mole. Regulation needs to be better co-ordinated, more consistent and in line with the public interest.

In our report we set out proposals to ensure that rights are protected online as they are offline while keeping the internet open to innovation and creativity, with a new culture of ethical behaviour embedded in the design of services. UK regulators have a world-class reputation and help to make the UK an attractive place for business. Tech companies should work with regulators to build well-considered, stable regulation which leads to consistent and predictable outcomes. There is a great opportunity for the UK to benefit from the soft power that comes with the international reputation of its regulators and for tech companies to be part of a programme of thoughtful, measured reform.

We had two key recommendations which shaped our report. First, we recommended the creation of a new digital authority to co-ordinate regulators and to identify and address gaps in regulation. Its board would consist of the chief executives of the relevant regulators with independent non-executives. It would work, crucially, with Government, Parliament and civil society to draw up priorities and work across its component bodies. It would continually assess the regulatory landscape and from time to time make recommendations on what new regulatory powers were needed.

The authority would also play a vital role in providing the public, the Government and Parliament with the latest information on technological developments. Under our vision, there would be an important role for Parliament in monitoring progress and responding where regulatory gaps are identified by granting new powers as necessary. To this end, we proposed a new Joint Committee of Parliament with a remit to consider all matters related to the digital world. This will enable Parliament to maintain democratic scrutiny over the regulators. The work of this Joint Committee would be informed by the digital authority, which would regularly report to it.

In their response to our report, the Government state that they aim to provide co-ordination and oversight through their digital charter programme. They note several initiatives to strengthen the regulation of digital technology, including the work of expert reviews. However, our concern is that implementing the recommendations of each of these separate pieces of work could further fragment the regulatory landscape. Many reviews and reports have recommended new regulators. However, we believe it is time for co-ordination, not proliferation, of regulators. That is why we propose the digital authority as a forward-looking, horizon-scanning body that consolidates and supplements what is already there. We think the horizon-scanning role is vital, enabling us to get ahead of technology changes that will affect our society and to design, with the industry, public policy solutions to address emerging risks.

For those who worry about the impact of regulation on innovation and freedom of expression I argue that, by anticipating the future impact of technological development, regulation is likely to be more proportionate and considered. With much greater co-operation from industry in the process, credible solutions at the design stage are also more viable. That is why we see the digital authority as a UK centre of expertise that can support our regulators, Government and Parliament and attract talent that is so often poached by the big tech companies.

Our second key recommendation was that all online regulation should be underpinned by 10 principles, including accountability, transparency, respect for privacy and freedom of expression. These principles would help the industry, regulators, the Government and users work towards a common goal of making the internet a better, more respectful environment that is beneficial to all. Responding to our report, the Government said that these were aligned with the principles set out in their online harms White Paper. However, we argued for principle-based regulation that is flexible and seeks to ensure appropriate outcomes. This is necessary in the fast-changing world of the internet. Our principles are not just an aspiration for what regulation should look like; they are intended to inform both the development of policy and the implementation of regulation. In each case, they cannot be taken separately; policymakers and regulators must consider them together, carefully balancing competing factors such as regulation and innovation, online safety and freedom of expression.

The Government have done considerable work to address online harms through their White Paper. I welcome efforts to introduce robust regulation, but our concern is that they appear to be doing this in isolation from other work. To begin, we noted that questions of design are at the heart of how the internet is experienced. It affects how users behave online and how decisions are made about them. The architecture of many online services is designed to capture users’ attention so that their data—essential to the business models of most of the large tech companies—can be extracted. Personal data are processed using black-box algorithms that are not transparent. Extraction is not limited to data that users upload; behavioural data are gleaned from users’ online activity. We recommend that users should have greater control over the collection of personal data; maximum privacy and safety settings should be the default.

The Government noted that the general data protection regulation addresses a number of these points, but this law is new and its application untested. We identified grey areas that the Government should clarify, such as inferred data. We also suggested ways to increase transparency and accountability in line with our principles. For example, we recommend that data controllers and data processors should be required to publish annual data transparency statements detailing which forms of behavioural data they generate or purchase from third parties, how they are stored, for how long, and how they are used and transferred. This is quite different from the privacy statements that currently exist.

The internet presents challenges to competition law. Digital markets develop quickly, whereas the competition regulator relies on meticulous and ex post analysis. There is widespread concern that competition authorities place too much emphasis on price. Meanwhile, the digital economy is characterised by the concentration of market power in a small number of companies that operate online intermediary platforms. These platforms benefit from network effects to gain dominant positions in their respective markets. Some of them provide services to consumers without charge. As intermediaries in markets they can shift costs from consumers to suppliers, while both are dependent on them. Information gained from direct access to consumers also gives platforms a competitive edge, and they have huge big data sets. There is concern that they use this information to identify and buy up emerging competitors. The Government should consider creating a public interest test for data-driven mergers and acquisitions. To deliver this, the digital authority could help co-ordinate the work of the Competition and Markets Authority and the Information Commissioner’s Office, both of which gave us thoughtful evidence.

Regulation should also recognise the inherent power of intermediaries. Greater use of data portability might help, but this would require more interoperability. I welcome the review by Professor Jason Furman that explored these issues and made recommendations. The noble Lord, Lord Tyrie, has called for the Competition and Markets Authority to have greater powers to regulate in the interests of consumers; I look forward to his contribution to this debate. Technology companies provide venues for illegal content and other forms of online abuse, bullying and fake news. Although they acknowledge some responsibility, their responses are not of the right scale to deal with the problem.

The Government’s proposal to introduce a duty of care accords with our recommendation. However, we did not wish to recommend a new regulator to enforce this duty. We recommend that, at least initially, Ofcom should be responsible for enforcing the duty of care. In so doing it should focus on the process for dealing with online harms rather than on content or on specific instances of wrongdoing. Big platforms should invest in better moderation processes. They should be held to the standard they set out in their own terms of service. We also recommend that online platforms should make community standards clearer through a new classification framework akin to that of the British Board of Film Classification. I would be grateful if the Minister could respond to that recommendation. I also ask him for assurances about the impact of the duty of care on the press and how the Government intend to balance journalistic freedom with regulation of online harms.

Looking at the speakers’ list, I know we will enjoy a thoughtful and fascinating debate this evening and look forward to noble Lords’ contributions. I beg to move.

--- Later in debate ---

[Lord Gilbert of Panteg]

I thank all noble Lords for their contributions to an excellent debate. I thank the noble Lords, Lord McNally and Lord Stevenson, for engaging in detail with the recommendations in our report, as well as the Minister, who answered all our questions at this late hour. He now has the unenviable task of grappling with the detail and bringing forward positive proposals to deal with these complex issues. He and his colleagues have engaged enthusiastically with the committee; I really thank them for that.

I agree with the noble Lord, Lord Maxton, who rightly highlighted all that is good with the internet and the danger of overregulation. That is why I think that the digital authority, with its forward-looking function of identifying risks before they emerge, will enable us to reach for not only regulatory solutions but, for example, public education campaigns to deal with those issues.

As we conducted this inquiry, I was struck by the amount of evidence we received, not just from industry and regulators but from great civic society organisations, academics, journalists and individual citizens who took time to write to us and send submissions, which the committee read with huge interest. In this day, where public service is not recognised, I thank them. We heard from some frankly heroic people who are using technology and the internet to improve the lives of others and to do good.

Finally, we heard some disturbing evidence from some of our witnesses about child sexual exploitation and other ugly aspects of our society, from organisations such as the Internet Watch Foundation, the National Police Chiefs’ Council and the National Crime Agency. They work in some very dark areas of society and must endure much personal anguish, but they displayed great humanity when they came and spoke to us. They do amazing work. In them, we saw the best of our society.

Motion agreed.