Online Safety Act 2023 (Category 1, Category 2A and Category 2B Threshold Conditions) Regulations 2025

Debate between Lord Moylan and Lord Pannick

Monday 24th February 2025 Lords Chamber

[Lord Pannick (CB)]

My Lords, this is a regret amendment, and the conduct of Ofcom and the Government on this matter is surely deeply regrettable, for all the reasons that have been given by the noble Lord, Lord Clement-Jones, and the noble Baronesses, Lady Morgan and Lady Kidron. The treatment of small but high-risk services in these regulations simply frustrates the amendment of the noble Baroness, Lady Morgan, to Schedule 11, which was approved by this House and accepted by the Government in the Commons. It contradicts what the Minister, Mr Scully, said in the Commons when he accepted the amendment of the noble Baroness, Lady Morgan, approved by this House, and it fails to address the mischief in this context, which the noble Lord, Lord Clement-Jones, and others have clearly identified. I, too, would like to see or even to understand what possible legal advice has led to this lamentable position. The impact of the service does not—it cannot—depend only on the number of users. That was the whole point of the amendment of the noble Baroness, Lady Morgan.

The Minister suggested two arguments, as I understood her, but it is not good enough for her to say—if I may respectfully say so—that small services are still unable to act in an illegal manner. The Act is, of course, designed to provide further regulation—especially so because the criminal law is, regrettably, a blunt and slow instrument. Nor am I persuaded by the Minister’s suggestion that it is simply too difficult to draft regulations to address small but high-risk services. I simply do not accept that the expertise of the department and parliamentary counsel cannot come up with an appropriate regulation to address this mischief.

[Lord Moylan (Con)]

My Lords, I wish to speak to a point made by the noble Lord, Lord Clement-Jones, in relation to Wikipedia in particular. Noble Lords who took part in Committee on the Bill will recall that on several occasions I asked the Minister at the time—now my noble friend sitting on the opposition Front Bench—whether Wikipedia would be in scope of the regulation and, if so, whether it would have consequences which would make it impossible for Wikipedia, a charity, to continue with its existing model. My noble friend was unable at the time to say that; he said it would be a matter for the regulations and, indeed, for the regulator. Now here we are, nearly two years later, and we have some regulations, and I have the same question to put to the Minister on the Front Bench today. It appears to me—I must say that I have no interest to declare other than that I am an inveterate user of Wikipedia—and as the noble Lord, Lord Clement-Jones, said, that we are still left in a state of confusion about this. Regulation 3 says that for large sites—those with more than 34 million users—two criteria have to be met. One is that it has that number of users or more, and the other is that it

“uses a content recommender system”.

In paragraph (2), a content recommender system is broadly defined; for example, it says that it is not simply algorithms by means of machine learning but algorithms by machine learning or “other techniques”. The verb is not simply “determines” but

“determines, or otherwise affects, the way in which regulated user-generated content of a user, whether alone or with other content, may be encountered by other users of the service”.

Wikipedia indeed uses techniques for sending people articles and information that relate to what they have shown an interest in in the past. Would it be caught or not? What are the consequences of Wikipedia being caught? There are many, but I would like to test one out on noble Lords. I do not claim that this is definitive law, because, I suspect, much of the Act will need to be determined in the courts before we know what the definitive interpretation is.

Let us take as an example the case of some loathsome foreign dictator or other such character whose article on Wikipedia is less flattering than he might wish it to appear and he has a complaint about this. Wikipedia will consider it and then probably throw it in the waste-paper basket. If he seeks by some means to change the content of the article, of course, the editors of Wikipedia, who are a distributed network largely of volunteers, will intervene to change it back and try to ensure that it still reflects what is known to be reality. But under Section 64 of the Online Safety Act, one may apply to become a verified user. Obviously, I do not expect the loathsome person himself to apply to become a verified user; there will be some stooge, some student, some trainee or some character somewhere willing to register on their behalf who could then change the article, but because they are a verified user, under Section 15(10)(a) of the Act, they would acquire immunity to peer review. What they wrote on Wikipedia could not then be changed by the editors, because they were a verified user and had that protection.

I offer that as a genuine possibility. Noble Lords know that I am not a lawyer. This could be tested in the courts and found otherwise but, on the face of it, it appears that this sort of consequence would accrue. So I come back to the same question that I have been asking to no real effect now for two years. Perhaps when she comes to reply, the Minister can give me a definitive answer. Is Wikipedia in scope of this regulation? Is it covered by Section 3 or not? We would like to know.