Commonwealth Games
Lord Parkinson of Whitley Bay Excerpts(11 months, 3 weeks ago)
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Lord McConnell of Glenscorrodale
To ask His Majesty’s Government what assessment they have made of the recent decisions by the governments of (1) Victoria, Australia, and (2) Alberta, Canada, to withdraw from bids to host the Commonwealth Games in 2026 and 2030.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, His Majesty’s Government recognise the great value of major sporting events such as the Commonwealth Games, particularly with the United Kingdom having hosted the Games twice in the past decade. Last year’s Games in Birmingham demonstrated the power of sport in bringing people together and building a foundation for a wide-ranging legacy that will deliver benefits for many years to come. We therefore urge the Commonwealth Games Federation to work towards a sustainable resolution for 2026 and 2030.
Lord McConnell of Glenscorrodale (Lab)
I thank the Government very much for their urgency in trying to ensure that we find a solution: I hope that we see that in the weeks and months to come. The Commonwealth Games are a fabulous exhibition of the benefit of the Commonwealth and the coming together of many nations from right across the globe. They are one of the most popular and successful multisport international events that we see. In both Birmingham and Glasgow in the past decade, we have seen not just the sporting benefits but the economic benefits of the Games to the cities and the wider regions. So, will the Government work with the national teams of Scotland, England, Wales and Northern Ireland to make sure that they rule out no options in order to deal with this immediate emergency of the Games not having a host for 2026? Will they also work with other Governments in the Commonwealth and with the Commonwealth Games Federation to make sure that, in the long term, the Commonwealth Games are able to be hosted by countries that are not the large, richer, white countries of the Commonwealth but are other countries in the Commonwealth, so that “commonwealth” goes back into the Commonwealth Games?
Lord Parkinson of Whitley Bay (Con)
Yes, we absolutely agree with the noble Lord. It is important that the Games remain a truly global Games. He is right to point to the economic benefits as well as the many other benefits that hosting the Games can accrue; he will know this very well, of course, from his own involvement with the successful Glasgow Games in 2014. Our interim assessment of the Games in Birmingham last year shows that they added £870 million of GVA to the UK economy, more than half of that going to the West Midlands, and we look forward to the fuller economic analysis coming soon. My right honourable friend the Sports Minister has met the Commonwealth Games Federation to talk about the urgency with which it is looking at this issue and we are keen for it to find a resolution.
Lord Howell of Guildford (Con)
My Lords, the noble Lord, Lord McConnell, is quite right. Will the Government work very closely with Marlborough House and the secretariat to ensure that there is momentum behind recovery, and we do not let the Games just die? Will his colleagues bear in mind that the Commonwealth network is in many ways our own gateway to the great markets of Asia and Africa, as well as a bulwark against Chinese domination in the developing world? We need them just as much as they need us.
Lord Parkinson of Whitley Bay (Con)
My noble friend, who is a strong supporter of the Commonwealth, makes a very valuable point about the Games’ geopolitical importance as well the great fun they involve for everyone taking part and the legacy they can bring in terms of sports participation and economic benefit. We are speaking to the Commonwealth Games Federation, which makes the decision here, but it is an issue we will of course raise with the Commonwealth at every appropriate level.
Baroness Grey-Thompson (CB)
My Lords, I declare an interest as chair of Sport Wales and I also competed at three Commonwealth Games at the beginning, middle and end of my career. We should not forget that the Manchester inclusive Games played a big part in us winning 2012. What assessment has been made of the impact on disability sport of potentially losing the Games, as they do have a significant role to play in developing talented British athletes?
Lord Parkinson of Whitley Bay (Con)
Your Lordships’ House benefits from sports people who have competed at every level, and I am glad that the noble Baroness has made her point. We hope that we do not lose the Games; we are working with the Commonwealth Games Federation to ensure that the Games go ahead and there is a sustainable resolution for both 2026 and 2030. She is right to point to their importance in the sporting pipeline for people of all abilities, and that is why we would like to see them continue.
Lord Razzall (LD)
My Lords, I accept that this is not the direct responsibility of the Government, except Chancellor as a leading member of the Commonwealth. Does the Minister believe that this disaster may be the responsibility of the Commonwealth Secretariat, which has not handled it terribly well, or does he believe that the Games have become a financial extravaganza, way beyond the days when my noble friend Lord Campbell participated? May I cheekily ask whether he believes it would help if the Commonwealth Games followed the recent proposal of the Olympic Committee to add cricket to the roster of games played?
Lord Parkinson of Whitley Bay (Con)
The Governments of Alberta and Victoria have cited cost as a reason for their decision. That is curious in the light of Birmingham’s experience, where the Games came in £70 million under budget and the Government gave that money to the West Midlands Combined Authority to spend on a variety of important initiatives, including cultural and sporting ones, in that part of the UK. So it is possible to deliver a Games that everyone can enjoy, as they did in Birmingham, on time and on budget, and we are very happy to share the lessons of Birmingham’s successful hosting with those who might want to bid. My right honourable friend the Sports Minister has been speaking to the federation about learning those lessons.
Lord Bassam of Brighton (Lab)
My Lords, this has happened a few times before. Can the Minister ensure that His Majesty’s Government do more to facilitate discussions on the future direction of the competition? Does it need to be reinvented somehow or does more thought need to be given to reducing the costs to hosts? Would it perhaps be more sustainable if the frequency of the Games was varied to match economic needs? Thinking about my own city, which has finally entered the Europa League this year, there are clear economic benefits demonstrated from hosting events like that. Are the Government doing enough to promote participation in wider international sporting competitions so that we can reap the benefit of the economic boost they bring to our country?
Lord Parkinson of Whitley Bay (Con)
Yes, we fully recognise the important economic boost that hosting major sporting events can bring. Sport is estimated to be worth over £38 billion a year to our economy. The hosting of the women’s Euros in 2022 generated economic activity of £81 million across the eight host cities that welcomed visitors and supported 1,200 full-time equivalent jobs. It also saw a 140% increase in participation among girls in the season after the tournament—so the benefits are manifold. The Commonwealth Games Federation is exploring all options to secure the long-term viability of the Commonwealth Games. It has committed to putting a firmer plan in place by the time of its general assembly in November.
Lord Moynihan (Con)
My Lords, my noble friend the Minister will know that the highly successful 1908 summer Olympics in London was a multisport event that ran for seven months, with many sports being organised sequentially. Given how expensive it is to run the Commonwealth Games and how few countries can afford to do so, would the Government consider supporting a Commonwealth Games where different Commonwealth countries were invited to host different sporting events in the same year? It would make the Games a great festival of Commonwealth sport that would be more affordable and would allow more sports and more countries to be added to the Games’ agenda.
Lord Parkinson of Whitley Bay (Con)
I missed the Games that my noble friend mentioned at the outset of his question, but his suggestion is a good one. The Commonwealth Games Federation is looking at all options. It is important that the Games remain a truly global event and I will pass on his very sensible suggestion to my right honourable friend the Sports Minister.
Baroness Bull (CB)
My Lords, the Minister mentioned the increase in sports participation that followed the Commonwealth Games. Typically, there is also a rise in volunteering, and we know from 2012 that sadly this was not sustained after the Games. What lessons were learned from that, and did we see a rise in volunteering around the Birmingham Commonwealth Games that we will see sustained?
Lord Parkinson of Whitley Bay (Con)
Our full impact assessment of the Birmingham Games will follow early in the new year, so I will draw out the points the noble Baroness rightly raises. The legacy of hosting these major events is manifold. There was a brilliant cultural programme that sat alongside the Birmingham Games and was enjoyed by millions of people around the world watching on television, as well as those who visited in person. That is exactly why we are so proud to host such large events.
Lord Holmes of Richmond (Con)
My Lords, would my noble friend agree that it is entirely possible to have an economic model that works for Commonwealth Games, as has been seen in Birmingham, Glasgow and Manchester? Would he like to remind the House that when good Games become great Games there is an economic, educational, environmental, social, sporting and infrastructure legacy for decades to come?
Lord Parkinson of Whitley Bay (Con)
I wholeheartedly agree with my noble friend and would remind your Lordships’ House that the Birmingham Games came in £70 million under budget. They brought great joy to everyone who watched them and participated, and they were done with great economic success.
Levelling-up and Regeneration Bill
Lord Parkinson of Whitley Bay ExcerptsWednesday 6th September 2023
(11 months, 3 weeks ago)
Lords ChamberRead Full debate Levelling-up and Regeneration Act 2023 View all Levelling-up and Regeneration Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 142-VI(a) Amendments for Report (Supplementary to the Sixth Marshalled List) - (5 Sep 2023)
“(A1) The Listed Buildings Act is amended as follows.(A2) In section 3 (temporary listing in England: building preservation notices), after subsection (1) insert—“(1A) Before serving a building preservation notice under this section, the local planning authority must consult with the Commission. (1B) Subsection (1A) does not apply where the Commission proposes to serve a building preservation notice under this section (see subsection (8)).””Member’s explanatory statement
This amendment inserts a new duty into the Planning (Listed Buildings and Conservation Areas) Act 1990 for local planning authorities to consult the Historic Buildings and Monuments Commission for England (“Historic England”) before serving a building preservation notice under that Act. The duty does not apply in cases where Historic England is carrying out the functions of a local planning authority.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, I will speak to this group of amendments as Minister for Heritage. I will speak first to Amendments 202A and 202B, which regard building preservation notices.
His Majesty’s Government recognise that, although building preservation notices provide a useful means of protecting buildings for up to six months while they are being considered for listing, it is important that they should not be used inappropriately or injudiciously.
Further to our debate in Committee, my amendment to Clause 99 should help to provide that reassurance. It introduces a requirement on local planning authorities to consult Historic England before serving a building preservation notice, drawing on Historic England’s expert knowledge about the historic environment to help advise local planning authorities before they issue a building preservation notice. This practice is common- place today, although not universal; the amendment seeks to solidify this practice as a duty on the local planning authority. In addition, His Majesty’s Government will issue guidance after the Bill has become law, setting out the manner in which local planning authorities need to consult Historic England. For example, where the planning authority’s view differs from Historic England’s, it should set out why it has come to that conclusion.
By tabling this amendment, the Government are showing that we have listened to the concerns raised at earlier stages yet remain committed to ensuring the best protection possible for our nation’s most loved and valued heritage.
I am grateful in particular to Historic Houses for the time and willingness they have shown in discussing this issue with me.
I turn to Amendment 271A, in my name, which concerns blue plaques. For a century and a half, blue plaques have helped people to learn about and celebrate their local heritage and to take pride in their local community. More than 900 have been erected, celebrating people as diverse as Ada Lovelace, Jimi Hendrix and Mohandas Gandhi—but only in London, for, while there are many brilliant local schemes across the country, the official scheme backed in statute is limited to London alone.
Baroness Hayman of Ullock (Lab)
I thank all noble Lords who have taken part in this very interesting debate. I start by thanking the noble Lord, Lord Parkinson of Whitley Bay, for his introduction and for the amendments that he introduced. It was good to see that we have the negative procedure being applied in some areas. As others have done, I too welcome the rollout of the blue plaques, but I also support the comments regarding women and diversity. I am sure that he will take those away.
My noble friend Lady Andrews, as always, introduced her important amendments eloquently and clearly. I will not go into detail but want to let the House know that we fully agree with and support her amendments and the arguments that she put forward urging the Government to accept what she believes is absolutely the right way to move forward on this. I thank the Victorian Society for its very helpful briefing on this. I absolutely agree with my noble friend that one big concern that has come across in the debate, particularly regarding the Crooked House, of course, is that we have been too casual about demolition in our society. The Crooked House demolition raised very highly up the agenda the public’s concerns when something like that happens in their local community. As the noble Lord, Lord Carrington, said, it appeared that the building was about to be listed, so it is quite shocking that it was able to happen. We need to ensure in future that buildings of such importance to localities cannot just be demolished like that.
We heard during earlier discussions on the Bill about the release of carbon when buildings are demolished. The noble Lord, Lord Ravensdale, had an amendment on this and it was mentioned by my noble friend and by the noble Baroness, Lady Bennett of Manor Castle. Again, that now needs to be part of the discussions. Also, I really agree with the noble Baroness’s comments on tidiness. We are too concerned about tidiness and that has impacts on all sorts of areas and our environment.
My noble friend also had an amendment around the importance of the local list that communities now have of buildings that are important to those local communities. We should all applaud my noble friend Lady Taylor, because I understand that she has set up such a list. But the concerns are how little weight that then has in planning and how little understanding there is of it, so my noble friend’s amendment is important in this aspect.
The noble Lord, Lord Northbrook, introduced his amendments, which are similar to those he had in Committee, so I will not go into detail. However, he raised concerns about the approval of inappropriate developments and the importance of what local residents feel about them. That should be taken proper account of and, again, we would very much support him in that. We believe that local residents should be listened to and that there should be proper consultation.
On replacement windows in conservation areas, it is really important that we have a sensible and practical approach to this. I know that we talked about like for like and heard that other materials can be used, but that is not always the way things are interpreted, unfortunately. There is a house near to me where the windows are going to fall out because like for like insists on hardwood, and the residents cannot afford it. There needs to be more flexibility and practicality. Also, in the conservation area in Cockermouth after the flooding, households were told that they were not allowed to put in flood doors, which seems a ridiculous situation for us to be in.
In my last two comments, I thought the noble Lord, Lord Redesdale, made some very good points on his amendments, particularly regarding dispute resolution, environmental record services and archives. The noble Earl, Lord Lytton, as always, made some very important points. He has enormous knowledge and practical expertise in this area.
This debate has shown that there are serious concerns about heritage and conservation, areas that could move forward quite sensibly and practically with government support. I look forward to the Minister’s response.
Lord Parkinson of Whitley Bay (Con)
I am grateful, first, to all those noble Lords who expressed their support for the amendment relating to the extension of the blue plaque scheme. I am glad to see that it has had support from across the House, as it did from the cross-party Local Government Association, so I am grateful to all those who mentioned it in their contributions now.
My noble friend Lord Lexden was particularly kind. He was right to point out that one of the motivations here is to increase people’s curiosity and knowledge about the past, including untold or surprising stories. I am glad to hear of the progress that he and the noble Baroness, Lady Stuart of Edgbaston, are making with their campaigns for plaques—not blue ones, but important ones—in Birmingham to the two sons of that city and of Joseph Chamberlain, who is already commemorated. My noble friend is right that they are people of international and national significance, as well as of great local pride. I look forward to seeing those plaques added to the Chamberlain memorial.
I am also grateful for what my noble friend Lord Mendoza said about the importance of the blue plaques scheme in increasing people’s connection to and sense of pride in place. That is a very important aspect of the scheme.
The noble Baronesses, Lady Bennett of Manor Castle and Lady Hayman of Ullock, are right to point to the need for a greater diversity of stories. That is something that English Heritage has been focusing on in recent years. For instance, of the plaques that have been unveiled since 2016, more than half have been to women. The noble Baroness is right that there is a job of work to do to ensure that we are telling more untold stories of women, working-class people, people of colour, people of minority sexualities and so much more. I hope one of the benefits of extending the scheme across all of England will be being able to draw on the greater diversity of the country in telling those stories, which are always so interesting and important.
The noble Baroness, Lady Pinnock, asked some questions on blue plaques. Yes, local schemes—which, as I say, have operated for many years in parallel—will be able to do so. In fact, a number of London boroughs organise their own schemes on top of the blue plaques scheme which has operated in the capital—so the more the merrier, I say.
I was remiss in not thanking the noble Earl, Lord Lytton, in my opening speech in relation to the amendment when I thanked the Historic Houses association, with which I know he has been in touch. I am grateful to him for the time and attention he has given this and for the discussions we have had on that amendment.
The noble Baroness, Lady Pinnock, rightly asked a few more questions on BPNs. Our original proposal was without this further amendment recognising the need for speed in these instances. I reassure her that Historic England is adept at dealing with these and other listing and heritage matters quickly when the situation needs, and there is an expedited process for listing when something is believed to be at risk. One of the advantages of having Historic England’s chairman in your Lordships’ House is that my noble friend Lord Mendoza will have heard those points and be able to reflect them back to Historic England, which already works quickly. That point will be carefully considered in the production of the necessary guidance. I hope that addresses her concerns on BPNs.
I turn now to the amendments in this group tabled by other noble Lords. I am very grateful to my noble friend Lord Northbrook for tabling Amendment 203 and for the correspondence we have had on this issue this week. His amendment seeks to require that, in meeting their statutory duty under Section 72, local planning authorities should have regard to any relevant advice produced by Historic England. I agree that this should be the case, but it is already something that local planning authorities do, and the Government’s planning practice guidance points them to Historic England’s advice.
My noble friend Lord Bellingham is right to remind us that Historic England has a duty to liaise with local authorities, and I hope he will be reassured by what our noble friend Lord Mendoza said about the frequency with which it does that. When our guidance is next reviewed, I am happy to ask officials to consider whether the links to Historic England’s advice could be strengthened. I hope that, with that assurance, my noble friend Lord Northbrook will be content not to press his Amendment 203.
Amendment 204, also in my noble friend’s name, relates to replacement windows in conservation areas. An existing permitted development right allows for enlargement, improvement or other alteration to a dwelling-house. That is subject to a condition that the materials used in any exterior work—other than those used in the construction of a conservatory—must be of a similar appearance to those used in the construction of the exterior of the existing dwelling-house. That applies to replacement windows in conservation areas. The Secretary of State for Levelling Up, in his housing speech in July, launched a consultation which included a proposal to apply local design codes to permitted development rights. He also announced that the Government will consult this autumn on how to better support existing homeowners to extend their homes. On top of that, the Government are undertaking a review of the practical planning barriers which house- holders can face when installing energy-efficiency measures.
Although I am grateful to my noble friend for raising this issue, I hope he will understand that it would be premature to accept his Amendment 204, as it would curtail the scope of any legislative recommendations that the review might set out in due course. Additionally, powers to amend permitted development rights already exist in primary legislation. For these reasons I cannot support Amendment 204 but am happy to reassure my noble friend that we keep permitted development rights under review.
Baroness Andrews (Lab)
I thank the noble Lord for what he has just said. It is an important step forward to get a consultation on the two propositions and the two sets of dates that might apply with Amendment 204A. That is very important and very good news, and I am very grateful. Can the noble Lord say anything about the timetable? I presume that he is talking about the normal 12-week public consultation period. Is there anything we can pass on to the community about preparation for such a consultation? Could the Minister write to me about whether there is a consultation within DLUHC on permitted development as a whole? It would be very useful to have that information.
Lord Parkinson of Whitley Bay (Con)
I will happily write to the noble Baroness with the information she seeks, including confirmation of the timelines for the consultation, which I expect will meet the normal provisions. I am afraid I cannot give her a date, but we will do it shortly—if I am able to give any greater finesse to her in writing, I will do so gladly.
Member’s explanatory statement
This amendment is consequential on the amendment made to line 1 of Clause 99 in the Minister’s name.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsWednesday 6th September 2023
(11 months, 3 weeks ago)
Lords ChamberRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 164-I Marshalled list for Third Reading - (5 Sep 2023)
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, I will make a brief statement on the devolution status of the Bill. I am pleased to inform your Lordships’ House that both the Scottish Parliament and Senedd Cymru have voted to grant consent for all the relevant provisions. For Scotland, these provisions are the power to amend the list of exempt educational institutions, the power to amend the list of child sexual exploitation and abuse offences and the new offence of encouraging or assisting serious self-harm. For Wales, the provisions are the power to amend the list of exempt educational institutions, the false communications offence, the threatening communications offence, the flashing images offences and the offence of encouraging or assisting serious self-harm.
As noble Lords will be aware, because the Northern Ireland Assembly is adjourned the usual process for seeking legislative consent in relation to Northern Ireland has not been possible. In the absence of legislative consent from the Northern Ireland Assembly, officials from the relevant UK and Northern Ireland departments have worked together to ensure that the Bill considers and reflects the relevant aspects of devolved legislation so that we may extend the following provisions to Northern Ireland: the power to amend the list of exempt educational institutions, the false communications offence, the threatening communications offence and the offence of encouraging or assisting serious self-harm. His Majesty’s Government have received confirmation in writing from the relevant Permanent Secretaries in Northern Ireland that they are content that nothing has been identified which would cause any practical difficulty in terms of the existing policy and legislative landscape. Historically, this area of legislation in Northern Ireland has mirrored that in Great Britain, and we believe that legislating without the consent of the Northern Ireland Assembly is justified in these exceptional circumstances and mitigates the risk of leaving Northern Ireland without the benefit of the Bill’s important reforms and legislative parity.
We remain committed to ensuring sustained engagement on the Bill with all three devolved Administrations as it progresses through Parliament. I beg to move that the Bill be read a third time.
Clause 44: Secretary of State’s powers of direction
Amendment 1
Member’s explanatory statement
This amendment provides that, in addition to publishing a direction under this Clause, the Secretary of State must also lay it before Parliament. Additionally the Secretary of State is required to do these things as soon as reasonably practicable. There is an exemption in certain circumstances (as to which see the next amendment to this Clause in my name).
Lord Parkinson of Whitley Bay (Con)
My Lords, His Majesty’s Government have listened carefully to the views expressed in Committee and on Report and have tabled amendments to the Bill to address concerns raised by noble Lords. Let me first again express my gratitude to my noble friend Lady Stowell of Beeston for her constructive engagement on the Secretary of State’s powers of direction. As I said during our previous debate on this topic, I am happy to support her Amendments139 and 140 from Report. The Government are therefore bringing forward two amendments to that effect today.
Noble Lords will recall that, whenever directing Ofcom about a code, the Secretary of State must publish that direction. Amendment 1 means that, alongside this, in most cases a direction will now need to be laid before Parliament. There may be some cases where it is appropriate for the Secretary of State to withhold information from a laid direction: for example, if she thinks that publishing it would be against the interests of national security. In these cases, Amendment 2 will instead require the Secretary of State to lay a statement before Parliament setting out that a direction has been given, the kind of code to which the direction relates and the reasons for not publishing it. Taken together, these amendments will ensure that your Lordships and Members of another place are always made aware as soon as a direction has been made and, wherever possible, understand the contents of that direction. I hope noble Lords will agree that, after the series of debates we have had, we have reached a sensible and proportionate position on these clauses and one which satisfies your Lordships’ House.
I am also grateful to the noble Baroness, Lady Kennedy of The Shaws, for her determined and collaborative work on the issue of threatening communications. Following the commitment I made to her on Report, I have tabled an amendment to make it explicit that the threatening communications offence captures threats where the recipient fears that someone other than the person sending the message will carry out the threat. I want to make it clear that the threatening communications offence, like other existing offences related to threats, already captures threats that could be carried out by third parties. This amendment does not change the scope of the offence, but the Government understand the desire of the noble Baroness and others to make this explicit in the Bill, and I am grateful to her for her collaboration.
Regarding Ofcom’s power of remote access, I am grateful to noble Lords, Lord Knight of Weymouth and Lord Allan of Hallam, my noble friend Lord Moylan and the noble Baroness, Lady Fox of Buckley, who unavoidably cannot be with us today, for raising their concerns about the perceived breadth of the power and the desire for further safeguards to ensure that it is used appropriately by the regulator.
I am also grateful to technology companies for the constructive engagement they have had with officials over the summer. As I set out on Report, the intention of our policy is to ensure clarity about Ofcom’s ability to observe empirical tests, which are a standard method for understanding algorithms and consequently for assessing companies’ compliance with the duties in the Bill. They involve taking a test data set, running it through an algorithmic system and observing the output.
Lord Knight of Weymouth (Lab)
My Lords, I do not know how everyone has spent their summer, but this feels a bit like we have been working on a mammoth jigsaw puzzle and we are now putting in the final pieces. At times, through the course of this Bill, it has felt like doing a puzzle in the metaverse, where we have been trying to control an unreliable avatar that is actually assembling the jigsaw—but that would be an unfair description of the Minister. He has done really well in reflecting on what we have said, influencing his ministerial colleagues in a masterclass of managing upwards, and coming up with reasonable resolutions to previously intractable issues.
We are trusting that some of the outcome of that work will be attended to in the Commons, as the noble Baroness, Lady Morgan, has said, particularly the issues that she raised on risk, that the noble Baroness, Lady Kidron, raised on children’s safety by design, and that my noble friend Lady Merron raised on animal cruelty. We are delighted at where we think these issues have got to.
For today, I am pleased that the concerns of the noble Baroness, Lady Stowell, on Secretary of State powers, which we supported, have been addressed. I also associate myself with her comments on parliamentary scrutiny of the work of the regulator. Equally, we are delighted that the Minister has answered the concerns of my noble friend Lady Kennedy and that he has secured the legislative consent orders which he informed us of at the outset today. We would be grateful if the Minister could write to us answering the points of my noble friend Lord Rooker, which were well made by him and by the Delegated Powers Committee.
I am especially pleased to see that the issues which we raised at Report on remote access have been addressed. I feel smug, as I had to press quite hard for the Minister to leave the door open to come back at this stage on this. I am delighted that he is now walking through the door. Like the noble Lord, Lord Allan, I have just a few things that I would like clarification on—the proportional use of the powers, Ofcom taking into account user privacy, especially regarding live user data, and that the duration of the powers be time- limited.
Finally, I thank parliamentarians on all sides for an exemplary team effort. With so much seemingly falling apart around us, it is encouraging that, when we have common purpose, we can achieve a lot, as we have with this Bill.
Lord Parkinson of Whitley Bay (Con)
My Lords, let me first address the points made by the noble Lord, Lord Rooker. I am afraid that, like my noble friend Lady Stowell of Beeston, I was not aware of the report of your Lordships’ committee. Unlike her, I should have been. I have checked with my private office and we have not received a letter from the committee, but I will ask them to contact the clerk to the committee immediately and will respond to this today. I am very sorry that this was not brought to my attention, particularly since the members of the committee met during the Recess to look at this issue. I have corresponded with my noble friend Lord McLoughlin, who chairs the committee, on each of its previous reports. Where we have disagreed, we have done so explicitly and set out our reasons. We have agreed with most of its previous recommendations. I am very sorry that I was not aware of this report and have not had the opportunity to provide answers for your Lordships’ House ahead of the debate.
Lord Rooker (Lab)
The report was published on 31 August. It so happens that the committee has been forced to meet in an emergency session tomorrow morning because of government amendments that have been tabled to the levelling-up Bill, which will be debated next Wednesday, that require a report on the delegated powers, so we will have the opportunity to see what the Minister has said. I am very grateful for his approach.
Lord Parkinson of Whitley Bay (Con)
The committee will have a reply from me before it meets tomorrow. Again, I apologise. It should not be up to the committee to let the Minister know; I ought to have known about it.
I am very grateful to noble Lords for their support of the amendments that we have tabled in this group, which reflect the collaborative nature of the work that we have done and the thought which has been put into this by my ministerial colleagues and me, and by the Bill team, over the summer. I will have a bit more to say on that when I move that the Bill do now pass in a moment, but I am very grateful to those noble Lords who have spoken at this stage for highlighting the model of collaborative working that the Bill has shown.
The noble Baroness, Lady Ritchie of Downpatrick, asked for an update on timetables. Some of the implementation timetables which Ofcom has assessed depend a little on issues which may still change when the Bill moves to another place. If she will permit it, once they have been resolved I will write with the latest assessments from Ofcom, and, if appropriate, from us, on the implementation timelines. They are being recalculated in the light of amendments that have been made to the Bill and which may yet further change. However, everybody shares the desire to implement the Bill as swiftly as possible, and I am grateful that your Lordships’ work has helped us do our scrutiny with that in mind.
The noble Lord, Lord Allan, asked some questions about the remote viewing power. On proportionality, Ofcom will have a legal duty to exercise its power to view information remotely in a way that is proportionate, ensuring, as I said, that undue burdens are not placed on businesses. In assessing proportionality in line with this requirement, Ofcom would need to consider the size and resource capacity of a service when choosing the most appropriate way of gathering information. To comply with this requirement, Ofcom would also need to consider whether there was a less onerous method of obtaining the necessary information.
On the points regarding that and intrusion, Ofcom expects to engage with providers as appropriate about how to obtain the information it needs to carry out its functions. Because of the requirement on Ofcom to exercise its information-gathering powers proportionately, it would need to consider less onerous methods. As I said, that might include an audit or a skilled persons report, but we anticipate that, for smaller services in particular, those options could be more burdensome than Ofcom remotely viewing information.
Lord Moylan (Con)
Will my noble friend draw attention to the part of Clause 122 that says that Ofcom cannot issue a requirement which is not technically feasible, as he has just said? That does not appear in the text of the clause, and it creates a potential conflict. Even if the requirement is not technically feasible—or, at least, if the platform claims that it is not—Ofcom’s power to require it is not mitigated by the clause. It still has the power, which it can exercise, and it can presumably take some form of enforcement action if it decides that the company is not being wholly open or honest. The technical feasibility is not built into the clause, but my noble friend has just added it, as with quite a lot of other stuff in the Bill.
Lord Parkinson of Whitley Bay (Con)
It has to meet minimum standards of accuracy and must have privacy safeguards in place. The clause talks about those in a positive sense, which sets out the expectation. I am happy to make clear, as I have, what that means: if the appropriate technology does not exist that meets these requirements, then Ofcom will not be able to use Clause 122 to require its use. I hope that that satisfies my noble friend.
“(7A) If the Secretary of State considers that publishing and laying before Parliament a direction given under this section would be against the interests of national security, public safety or relations with the government of a country outside the United Kingdom—(a) subsection (7)(c) does not apply in relation to the direction, and(b) the Secretary of State must, as soon as reasonably practicable, publish and lay before Parliament a document stating—(i) that a direction has been given,(ii) the kind of code of practice to which it relates, and(iii) the reasons for not publishing it.”Member’s explanatory statement
This amendment provides that in the circumstances mentioned in the amendment the Secretary of State is not required to publish and lay before Parliament a direction given under this Clause but must instead publish and lay before Parliament a document stating that a direction has been given, the code of practice to which it relates and the reasons for not publishing it.
Member’s explanatory statement
This is a technical amendment which substitutes the correct cross-references into this provision.
“(za) references to a service meeting the Category 1, Category 2A or Category 2B threshold conditions are to a service meeting those conditions in a way specified in regulations under paragraph 1 of Schedule 11 (see paragraph 1(4) of that Schedule);”Member’s explanatory statement
This amendment improves the drafting to clarify that a service “meets the Category 1 threshold conditions” (for example) if the service meets them in a way set out in regulations under Schedule 11.
Member’s explanatory statement
This amendment improves the drafting to clarify that services which are already Category 1 services, or which meet the conditions to be a Category 1 service, do not need to be assessed by OFCOM to see if they should be included in the list which is provided for by Clause 98.
Member’s explanatory statement
This amendment changes the wording of one of OFCOM’s information powers. The power now refers to viewing information remotely, rather than remotely accessing a service; the power is exercisable by a person authorised by OFCOM; and the power may only be exercised in relation to information as mentioned in Clause 101(3)(a) and (b).
“(4A) An information notice requiring a person to take steps of a kind mentioned in section 101(3) must give the person at least seven days’ notice before the steps are required to be taken.” Member’s explanatory statement
This amendment has the effect that if a person receives a notice from OFCOM requiring them to allow OFCOM to remotely view information, they must be given at least 7 days to comply with the notice.
Member’s explanatory statement
Clause 121 is about the admissibility of statements in criminal proceedings. This amendment adds Clause 102 to the list of relevant information powers (information in connection with an investigation into the death of a child).
““age assurance” means age verification or age estimation;”Member’s explanatory statement
This amendment adds a definition of “age assurance” into this Clause.
Member’s explanatory statement
This amendment makes it clear that the threatening communications offence in Clause 182 may be committed by a person who sends a threatening message regardless of who might carry out the threat.
Lord Parkinson of Whitley Bay (Con)
My Lords, in begging to move that the Bill do now pass, I add my words of thanks to all noble Lords who have been involved over many years and many iterations of the Bill, particularly during my time as the Minister and in the diligent scrutiny we have given it in recent months. The Bill will establish a vital legislative framework, making the internet safer for all, particularly for children. We are now closer than ever to achieving that important goal. In a matter of months from Royal Assent, companies will be required to put in place protections to tackle illegal content on their services or face huge fines. I am very grateful to noble Lords for the dedication, attention and time they have given to the Bill while it has been before your Lordships’ House.
The Bill will mark a significant change in children’s safety online. Last month, data from UK police forces showed that 6,350 offences relating to sexual communications with a child were recorded last year alone. These are horrifying statistics which underline the importance of the Bill in building a protective shield for our children online. We cannot let perpetrators of such abhorrent crimes stalk children online and hide behind their screens, nor let companies continue to turn a blind eye to the harm being done to children on their services. We are working closely with Ofcom to make sure that the protections for children established by the Bill are enforced as soon as possible, and we have been clear that companies should not wait for the legislation to come into force before taking action.
The aim of keeping children safe online is woven throughout the Bill, and the changes that we have made throughout its passage in your Lordships’ House have further bolstered it. In order to provide early and clear guidance to companies and Ofcom regarding the content from which children must be protected, rather than addressing these later via secondary legislation, the categories of primary priority and priority content which is harmful to children will now be set out in the Bill.
Following another amendment made during your Lordships’ scrutiny, providers of the largest services will also be required to publish summaries of their risk assessments for illegal content and content which is harmful to children. Further changes to the Bill have also made sure that technology executives must take more responsibility for the safety of those who use their websites. Senior managers will face criminal liability if they fail to comply with steps set by Ofcom following enforcement action to keep children safe on their platforms, with the offence punishable with up to two years in prison.
Noble Lords have rightly raised concerns about what the fast-changing technological landscape will mean for children. The Bill faces the future and is designed to keep pace with emerging technological changes such as AI-generated pornography.
Child sexual exploitation and abuse content generated by AI is illegal, regardless of whether it depicts a real child or not, and the Bill makes it clear that technology companies will be required to identify this content proactively and remove it. Whatever the future holds, the Bill will ensure that guard rails are in place to allow our children to explore it safely online.
I have also had the pleasure of collaborating with noble Lords from across your Lordships’ House who have championed the important cause of strengthening protections for women and girls online, who we know disproportionately bear the brunt of abhorrent behaviour on the internet. Following changes made earlier to the Bill, Ofcom will be required to produce and publish guidance which summarises in one clear place measures that should be taken to reduce the risk of harm to women and girls online. The amendment will also oblige Ofcom to consult when producing the guidance, ensuring that it reflects the voices of women and girls as well as the views of experts on this important issue.
The Bill strikes a careful balance: it tackles criminal activity online and protects our children while enshrining freedom of expression in its legislative framework. A series of changes to the Bill has ensured that adults are provided with greater control over their online experience. All adult users of the largest services will have access to tools which, if they choose to use them, will allow them to filter out content from non-verified users and to reduce the likelihood of encountering abusive content. These amendments, which have undergone careful consideration and consultation, will ensure that the Bill remains proportionate, clear and future-proof.
I am very grateful to noble Lords who have helped us make those improvements and many more. I am conscious that a great number of noble Lords who have taken part in our debates were part of the pre-legislative scrutiny some years ago. They know the Bill very well and they know the issues well, which has helped our debates be well informed and focused. It has helped the scrutiny of His Majesty’s Government, and I hope that we have risen to that.
I am very grateful to all noble Lords who have made representations on behalf of families who have suffered bereavements because of the many terrible experiences online of their children and other loved ones. There are too many for me to name now, and many more who have not campaigned publicly but who I know have been following the progress of the Bill carefully, and we remember them all today.
Again, there are too many noble Lords for me to single out all those who have been so vigilant on this issue. I thank my colleagues on the Front Bench, my noble friends Lord Camrose and Lord Harlech, and on the Front Bench opposite the noble Lords, Lord Knight and Lord Stevenson, and the noble Baroness, Lady Merron. On the Liberal Democrat Benches, I thank the noble Lords, Lord Clement-Jones and Lord Allan of Hallam—who has been partly on the Front Bench and partly behind—who have been working very hard on this.
I also thank the noble Baroness, Lady Kidron, whom I consider a Front-Bencher for the Cross Benches on this issue. She was at the vanguard of many of these issues long before the Bill came to your Lordships’ House and will continue to be long after. We are all hugely impressed by her energy and personal commitment, following the debates not only in our own legislature but in other jurisdictions. I am grateful to her for the collaborative nature of her work with us.
I will not single out other noble Lords, but I am very grateful to them from all corners of the House. They have kicked the tyres of the Bill and asked important questions; they have given lots of time and energy to it and it is a better Bill for that.
I put on record my thanks to the huge team in my department and the Department for Science, Innovation and Technology, who, through years of work, expertise and determination, have brought the Bill to this point. I am grateful to the staff of your Lordships’ House and to colleagues from the Office of the Parliamentary Counsel, in particular Maria White and Neil Shah, and, at the Department for Science, Innovation and Technology, Sarah Connolly, Orla MacRae, Caroline Bowman and Emma Hindley as well as their huge teams, including those who have worked on the Bill over the years but are not currently working on it. They have worked extremely hard and been generous with their time to noble Lords for the use of our work.
The Bill will make a vital difference to people’s safety online, especially children’s safety. It has been a privilege to play a part in it. I was working as a special adviser at the Home Office when this area of work was first mooted. I remember that, when this Bill was suggested in the 2017 manifesto, people suggested that regulating the internet was a crazy idea. The biggest criticism now is that we have not done it sooner. I am very grateful to noble Lords for doing their scrutiny diligently but speedily, and I hope to see the Bill on the statute book very soon. I beg to move that the Bill do now pass.
Lord Stevenson of Balmacara (Lab)
My Lords, I am grateful to the Minister for his very kind words to everybody, particularly my Front Bench and me. I also wish him a speedy recovery from his recent illness, although I was less sympathetic when I discovered how much he has been “managing upwards”—in the words of my noble friend Lord Knight—and achieving for us in the last few days. He has obviously been recovering and I am grateful for that. The noble Lord has steered the Bill through your Lordships’ House with great skill and largely single-handedly. It has been a pleasure to work with him, even when he was turning down our proposals and suggestions for change, which he did in the nicest possible way but absolutely firmly.
Lord Bethell (Con)
I rise briefly to raise the question of access to data by academics and research organisations. Before I do so, I want to express profound thanks to noble Lords who have worked so collaboratively to create a terrific Bill that will completely transform and hold to account those involved in the internet, and make it a safer place. That was our mission and we should be very proud of that. I cannot single out noble Peers, with the exception of the noble Baroness, Lady Kidron, with whom I worked collaboratively both on age assurance and on harms. It was a partnership I valued enormously and hope to take forward. Others from all four corners of the House contributed to the parts of the Bill that I was particularly interested in. As I look around, I see so many friends who stuck their necks out and spoke so movingly, for which I am enormously grateful.
The question of data access is one of the loose ends that did not quite make it into the Bill. I appreciate the efforts of my noble friend the Minister, the Secretary of State and the Bill team in this matter and their efforts to try and wangle it in; I accept that it did not quite make it. I would like to hear reassurance from my noble friend that this is something that the Government are prepared to look at in future legislation. If he could provide any detail on how and in which legislation it could be revisited, I would be enormously grateful.
Lord Parkinson of Whitley Bay (Con)
My Lords, I will be brief and restrict myself to responding to the questions which have been raised. I will hold to my rule of not trying to thank all noble Lords who have played their part in this scrutiny, because the list is indeed very long. I agree with what the noble Lord, Lord Clement-Jones, said about this being a Back-Bench-driven Bill, and there are many noble Lords from all corners of the House and the Back Benches who have played a significant part in it. I add my thanks to the noble Baroness, Lady Benjamin, not just for her kind words, but for her years of campaigning on this, and to my noble friend Lord Bethell who has worked with her—and others—closely on the issues which she holds dear.
I also thank my noble friend Lord Moylan who has often swum against the tide of debate, but very helpfully so, and on important matters. In answer to his question about Wikipedia, I do not have much to add to the words that I have said a few times now about the categorisation, but on his concerns about the parliamentary scrutiny for this I stress that it is the Secretary of State who will set the categorisation thresholds. She is, of course, a Member of Parliament, and accountable to it. Ofcom will designate services based on those thresholds, so the decision-making can be scrutinised in Parliament, even if not in the way he would have wished.
I agree that we should all be grateful to the noble Lord, Lord Allan of Hallam, because he addressed some of the questions raised by my noble friend Lady Stowell of Beeston. In brief, the provision is flexible for where the technological solutions do not currently exist, because Ofcom can require services to develop or source new solutions.
This close to the gracious Speech, I will not point to a particular piece of legislation in which we might revisit the issue of researchers’ access, as raised by my noble friend Lord Bethell, but I am happy to say that we will certainly look at that again, and I know that he will take the opportunity to raise it.
Noble Lords on the Front Benches opposite alluded to the discussions which are continuing—as I committed on Report to ensure that noble Lords are able to be part of discussions as the Bill heads to another place—on functionalities and on the amendment of my noble friend Lady Morgan on category 1 services. She is one of a cavalcade of former Secretaries of State who have been so helpful in scrutinising the Bill. It is for another place to debate them, but I am grateful to noble Lords who have given their time this week to have the discussions which I committed to have and will continue to have as the Bill heads there, so that we can follow those issues hopefully to a happy resolution.
I thank my noble friend Lady Harding of Winscombe for the concessions that she wrought on Report, and for the part that she has played in discussions. She has also given a great deal of time outside the Chamber.
We should all be very grateful to the noble Lord, Lord Grade of Yarmouth, who has sat quietly throughout most of our debates—understandably, in his capacity as chairman of Ofcom—but he has followed them closely and taken those points to the regulator. Dame Melanie Dawes and all the team there stand ready to implement this work and we should be grateful to the noble Lord, Lord Grade of Yarmouth, and to all those at Ofcom who are ready to put it into action.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsWednesday 19th July 2023
(1 year, 1 month ago)
Lords ChamberRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 151-V Fifth marshalled list for Report - (17 Jul 2023)
“Power to impose duty about alternative dispute resolution procedure
(1) The Secretary of State may by regulations amend this Act for or in connection with the imposition on providers of Category 1 services of an ADR duty.(2) An “ADR duty”—(a) is a duty requiring providers of Category 1 services to arrange for and engage in an alternative dispute resolution procedure in specified circumstances for the resolution of disputes about their handling of relevant complaints, and(b) may include a duty requiring such providers to meet the costs incurred by any other person in using a dispute resolution procedure which is so arranged.(3) Complaints are “relevant” for the purposes of subsection (2)(a) if they—(a) relate to a Category 1 service,(b) are of a specified kind, and(c) are made by persons of a specified kind.(4) Regulations under this section may not be made before the publication of a statement by the Secretary of State responding to OFCOM’s report under section (OFCOM’s report about reporting and complaints procedures)(report about reporting and complaints procedures in use by providers of Part 3 services: see subsection (10) of that section). (5) Before making regulations under this section the Secretary of State must consult—(a) OFCOM,(b) the Information Commissioner, and(c) such other persons as the Secretary of State considers appropriate.(6) If the power conferred by subsection (1) is exercised, the first regulations made under the power must—(a) require the use of a dispute resolution procedure which is impartial, and(b) prohibit the use of a dispute resolution procedure which restricts or excludes the availability of civil proceedings.(7) Provision made by regulations under this section may have the effect that the duties set out in any or all of sections 17, 18 and 19 which apply in relation to duties imposed by other provisions of Chapter 2 of Part 3 are also to apply in relation to the ADR duty, and accordingly the regulations may amend—(a) section 17(6),(b) the definition of “safety measures and policies” in section 18(8), or(c) the definition of “relevant duties” in section 19(10).(8) The provisions of this Act that may be amended by the regulations in connection with the imposition of the ADR duty include, but are not limited to, the following provisions (in addition to those mentioned in subsection (7))—(a) section 6(5),(b) section 94(12)(a), and(c) section 120(2).(9) If the power conferred by subsection (1) is exercised, the first regulations made under the power must require OFCOM to—(a) produce and publish guidance for providers of Category 1 services to assist them in complying with the ADR duty, and(b) consult the Secretary of State, the Information Commissioner and such other persons as OFCOM consider appropriate before producing the guidance.(10) Section 184(1) applies for the purposes of the references to Category 1 services in this section.(11) In this section “specified” means specified in regulations under this section.(12) For the meaning of “Category 1 service”, see section 86 (register of categories of services).”Member’s explanatory statement
This amendment provides that the Secretary of State may make regulations amending this Bill so as to impose a new duty on providers of Category 1 services to arrange for and engage in an out of court, impartial dispute resolution procedure. The regulations may not be made until the Secretary of State has responded to OFCOM’s report about content reporting and complaints procedures under the new clause proposed to be inserted after Clause 147 in my name.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, the government amendments in this group relate to content reporting and complaints procedures. The Bill’s existing duties on each of these topics are a major step forward and will provide users with effective methods of redress. There will now be an enforceable duty on Part 3 services to offer accessible, transparent and easy-to-use complaints procedures. This is an important and significant change from which users and others will benefit directly.
Furthermore, Part 3 services complaints procedures will be required to provide for appropriate action to be taken in response to complaints. The duties here will fundamentally alter how complaints systems are operated by services, and providers will have to make sure that their systems are up to scratch. If services do not comply with their duties, they will face strong enforcement measures.
However, we have listened to concerns raised by your Lordships and others, and share the desire to ensure that complaints are handled effectively. That is why we have tabled Amendments 272AA and 274AA, to ensure that the Bill’s provisions in this area are the subject of a report to be published by Ofcom within two years of commencement.
Amendment 272AA places a requirement on Ofcom to undertake a report about Part 3 services reporting and complaints procedures. The report will assess the measures taken or in use by providers of Part 3 services to enable users and others to report content and make complaints. In assessing the content reporting and complaints measures in place, the report must take into account users’ and others’ experiences of those procedures—including how easy to use and clear they are for reporting content and making complaints, and whether providers are taking appropriate and timely action in response.
In this report, Ofcom must provide advice to the Secretary of State about whether she should use her power set out in Amendment 236C to make regulations imposing an alternative dispute resolution duty on category 1 services. Ofcom may also make wider recommendations about how the complaints and user redress provisions can be strengthened, and how users’ experiences with regard to complaints can be improved more broadly. Amendment 274AA is a consequential amendment ensuring that the usual confidentiality provisions apply to matters contained in that report.
These changes will ensure that the effectiveness of the Bill’s content reporting and complaints provisions can be thoroughly assessed by Ofcom two years after the commencement of the provision, providing time for the relevant reporting and complaints procedures to bed in.
Amendment 236C then provides that the Secretary of State will have a power to make regulations to amend the Act in order to impose an alternative dispute resolution duty on providers of category 1 services. This power can be used after the Secretary of State has published a statement in response to Ofcom’s report. This enables the Secretary of State to impose via regulations a duty on the providers of category 1 services to arrange for and engage in an impartial, out-of-court alternative dispute resolution procedure in respect of complaints. This means that, if the Bill’s existing user redress provisions are found to be insufficient, this requirement can quickly be imposed to strengthen the Bill.
This responds directly to concerns which noble Lords raised about cases where users or parents may feel that they have nowhere to turn if they are dissatisfied with a service’s response to their complaint. We believe that the existing provisions will remedy this, but, if they do not, these new requirements will ensure that there is an impartial, alternative dispute resolution procedure which will work towards the effective resolution of the complaint between the service and the complainant.
At the same time, it will avoid creating a single ombudsman, person or body which may be overwhelmed either through the volume of complaints from multiple services or by the complexity of applying such disparate services’ varying terms of service. Instead, if required, this power will put the onus on the provider to arrange for and engage in an impartial dispute resolution procedure.
Amendment 237D requires that, if regulations are made requiring category 1 services to offer an alternative dispute resolution procedure, such regulation must be subject to the affirmative parliamentary procedure. This ensures that Parliament will continue to have oversight of this process.
I hope that noble Lords are reassured that the Bill not only requires services to provide users and others with effective forms of redress but that these further amendments will ensure that the Bill’s provisions in this area will be thoroughly reviewed and that action can be taken quickly if it is needed. I beg to move.
Lord Stevenson of Balmacara (Lab)
My Lords, I am grateful to hear what the Minister has just announced. The scheme that was originally prefigured in the pre-legislative scrutiny report has now got some chance of being delivered. I think the process and procedures are quite appropriate; it does need review and thought. There needs to be account taken of practice on the ground, how people have found the new system is working, and whether or not there are gaps that can be filled this way. I give my full support to the proposal, and I am very glad to see it.
Having got to the Dispatch Box early, I will just appeal to our small but very important group. We are on the last day on Report. We are reaching a number of issues where lots of debate has taken place in Committee. I think it would be quite a nice surprise for us all if we were to get through this quickly. The only way to do that is by restricting our contributions.
Lord Clement-Jones (LD)
My Lords, I declare an interest as chair of Trust Alliance Group, which operates the energy and communications ombudsman schemes, so I have a particular interest in the operation of these ADR schemes. I thank the Minister for the flexibility that he has shown in the provision about the report by Ofcom and in having backstop powers for the Secretary of State to introduce such a scheme.
Of course, I understand that the noble Baroness, Lady Newlove, and the UK Safer Internet Centre are very disappointed that this is not going to come into effect immediately, but there are advantages in not setting out the scheme at this very early point before we know what some of the issues arising are. I believe that Ofcom will definitely want to institute such a scheme, but it may be that, in the initial stages, working out the exact architecture is going to be necessary. Of course, I would have preferred to have a mandated scheme, in the sense that the report will look not at the “whether” but the “how”, but I believe that at the end of the day it will absolutely obvious that there needs to be such an ADR scheme in order to provide the kind of redress the noble Baroness, Lady Harding, was talking about.
I also agree with noble Baroness, Lady Morgan, that the kinds of complaints that this would cover should include fraudulent adverts. I very much hope that the Minister will be able to answer the questions that both noble Baronesses asked. As my noble friend said, will he reassure us that the department and Ofcom will not take their foot off the pedal, whatever the Bill may say?
Lord Parkinson of Whitley Bay (Con)
I am grateful to noble Lords for their warm support and for heeding the advice of the noble Lord, Lord Stevenson, on brevity. We must finish our Report today. The noble Lord, Lord Allan, is right to mention my noble friend Lady Newlove, who I have spoken to about this issue, as well as the noble Lord, Lord Russell of Liverpool, who has raised some questions here.
Alongside the strong duties on services to offer content reporting and complaints procedures, our amendments will ensure that the effectiveness of these provisions can be reviewed after they have had sufficient time to bed in. The noble Lord, Lord Allan, asked about timing in more detail. Ofcom must publish the report within the two-year period beginning on the day on which the provision comes into force. That will allow time for the regime to bed in before the report takes place, ensuring that its conclusions are informed by how the procedures work in practice. If necessary, our amendments will allow the Secretary of State to impose via regulations a duty on the providers of category 1 services to arrange for and engage in an impartial, out-of-court alternative dispute resolution procedure, providing the further strengthening which I outlined in opening.
I can reassure my noble friend Lady Morgan of Cotes that reporting mechanisms to facilitate providers’ removal of fraudulent advertisements are exactly the kinds of issues that Ofcom’s codes of practice will cover, subject to consultation and due process. As companies have duties to remove fraudulent advertising once they are alerted to it, we expect platforms will need the necessary systems and processes in place to enable users to report fraudulent adverts so that providers can remove them.
My noble friend Lady Harding asked the question which was posed a lot in Committee about where one goes if all avenues are exhausted. We have added further avenues for people to seek redress if they do not get it but, as I said in Committee, the changes that we are bringing in through this Bill will mark a significant change for people. Rather than focusing on the even-further-diminished possibility of their not having their complaints adequately addressed through the additional amendments we are bringing today, I hope she will see that the provisions in the Bill and in these amendments as bringing in the change we all want to see to improve users’ safety online.
“Powers to amend sections (“Primary priority content that is harmful to children”) and (“Priority content that is harmful to children”)
(1) The Secretary of State may by regulations amend—(a) section (“Primary priority content that is harmful to children”) (primary priority content that is harmful to children);(b) section (“Priority content that is harmful to children”) (priority content that is harmful to children).But the power to add a kind of content is limited by subsections (2) to (4).(2) A kind of content may be added to section (“Primary priority content that is harmful to children”) only if the Secretary of State considers that, in relation to Part 3 services—(a) there is a material risk of significant harm to an appreciable number of children presented by content of that kind that is regulated user- generated content or search content, and(b) it is appropriate for the duties set out in sections 11(3)(a) and 25(3)(a) (duty in relation to children of all ages) to apply in relation to content of that kind.(3) A kind of content may be added to section (“Priority content that is harmful to children”) only if the Secretary of State considers that, in relation to Part 3 services, there is a material risk of significant harm to an appreciable number of children presented by content of that kind that is regulated user-generated content or search content.(4) A kind of content may not be added to section (“Primary priority content that is harmful to children”) or (“Priority content that is harmful to children”) if the risk of harm presented by content of that kind flows from—(a) the content’s potential financial impact, (b) the safety or quality of goods featured in the content, or(c) the way in which a service featured in the content may be performed (for example, in the case of the performance of a service by a person not qualified to perform it).(5) The Secretary of State must consult OFCOM before making regulations under this section.(6) In this section references to children are to children in the United Kingdom.(7) In this section—“regulated user-generated content” has the same meaning as in Part 3 (see section 49);“search content” has the same meaning as in Part 3 (see section 51).”Member’s explanatory statement
This amendment gives power for the Secretary of State to make regulations changing the kinds of content that count as primary priority content and priority content harmful to children, subject to certain constraints set out in the Clause.
Member’s explanatory statement
This amendment has the effect that regulations made by OFCOM under the Bill must be made by statutory instrument.
Lord Parkinson of Whitley Bay (Con)
My Lords, Amendments 238A and 238D seek to change the parliamentary process for laying—oh, I am skipping ahead with final day of Report enthusiasm.
As noble Lords know, companies will fund the costs of Ofcom’s online safety functions through annual fees. This means that the regime which the Bill ushers in will be cost neutral to the taxpayer. Once the fee regime is operational, regulated providers with revenue at or above a set threshold will be required to notify Ofcom and to pay a proportionate fee. Ofcom will calculate fees with reference to the provider’s qualifying worldwide revenue.
The Delegated Powers and Regulatory Reform Committee of your Lordships’ House has made two recommendations relating to the fee regime which we have accepted, and the amendments we are discussing in this group reflect this. In addition, we are making an additional change to definitions to ensure that Ofcom can collect proportionate fees.
A number of the amendments in my name relate to qualifying worldwide revenue. Presently, the Bill outlines that this should be defined in a published statement laid before Parliament. Your Lordships’ committee advised that it should be defined through regulations subject to the affirmative procedure. We have agreed with this and are proposing changes to Clause 76 so that Ofcom can make provisions about qualifying worldwide revenue by regulations which, as per the committee’s recommendations, will be subject to the affirmative procedure.
Secondly, the committee recommended that we change the method by which the revenue threshold is defined. Presently, as set out in the Bill, it is set by the Secretary of State in a published statement laid before Parliament. The committee recommended that the threshold be set through regulations subject to the negative procedure and we are amending Clause 77 to make the recommended change.
Other amendments seek to make a further change to enable Ofcom to collect proportionate fees from providers. A provider of a regulated service the qualifying worldwide revenue of which is equal to, or greater than, the financial threshold will be required to notify Ofcom and pay an annual fee, calculated by reference to its qualifying worldwide revenue. Currently, this means that that fee calculation can be based only on the revenue of the regulated provider. The structure of some technology companies, however, means that how they accrue revenue is not always straightforward. The entity which meets the definition of a provider may therefore not be the entity which generates revenue referable to the regulated service.
Regulations to be made by Ofcom about the qualifying worldwide revenue will therefore be able to provide that the revenue accruing to certain entities in the same group as a provider of a regulated service can be taken into account for the purposes of determining qualifying worldwide revenue. This will enable Ofcom, when making such regulations, to make provisions, if necessary, to account for instances where a provider has a complex group structure; for example, where the regulated provider might accrue only a portion of the revenue referrable to the regulated service, the rest of which might be accrued by other entities in the group’s structure. These amendments to Clause 76 address these issues by allowing Ofcom to make regulations which provide that the revenue from certain other entities within the provider’s group structure can be taken into account. I beg to move.
Lord Allan of Hallam (LD)
My Lords, we have not talked much about fees in our consideration of the Bill, and I will not talk much about them today, but there are some important questions. We should not skip too lightly over the fact that we will be levying revenues from online providers. That might have a significant impact on the markets. I have some specific questions about this proposed worldwide revenue method but I welcome these amendments and that we will now be getting a better procedure. This will also allow the Minister to say, “All these detailed points can be addressed when these instruments come before Parliament”. That is a good development. However, there are three questions that are worth putting on the record now so that we have time to think about them.
First, what consideration will be given to the impact on services that do not follow a classic revenue model but instead rely on donations and other sorts of support? I know that we will come back to this question in a later group but there are some very large internet service providers that are not the classic advertising-funded model, instead relying on foundations and other things. They will have significant questions about what we would judge their qualifying worldwide revenue to be, given that they operate to these very different models.
The second question concerns the impact on services that may have a very large footprint outside the UK, and significant worldwide revenues, but which do very little business within the UK. The amendment that the Minister has tabled about group revenues is also relevant here. You can imagine an entity which may be part of a very large worldwide group making very significant revenues around the world. It has a relatively small subsidiary that is offering a service in the UK, with relatively low revenues. There are some important questions there around the potential impact of the fees on decision-making within that group. We have discussed how we do not want to end up with less choice for consumers of services in the UK. There is an interesting question there as to whether getting the fee level wrong might lead to worldwide entities saying, “If you’re going to ask me to pay a fee based on my qualifying worldwide revenue, the UK market is just not worth it”. That may particularly true if, for example, the European Union and other markets are also levying a fee. You can see a rational business choice of, “We’re happy to pay the fee to the EU but not to Ofcom if it is levied at a rate that is disproportionate to the business that we do here”.
The third and very topical question is about the Government’s thinking about services with declining revenues but whose safety needs are not reducing and may even be increasing. I hope as I say this that people have Twitter in mind, which has very publicly told us that its revenue is going down significantly. It has also very publicly fired most of its trust and safety staff. You can imagine a model within which, because its revenue is declining, it is paying less to Ofcom precisely when Ofcom needs to do more supervision of it.
I hope that we can get some clarity around the Government’s intentions in these circumstances. I have referenced three areas where the worldwide qualifying revenue calculation may go a little awry. The first is where the revenue is not classic commercial income but comes from other sources. The second is where the footprint in the UK is very small but it is otherwise a large global company which we might worry will withdraw from the market. The third, and perhaps most important, is what the Government’s intention is where a company’s revenue is declining and it is managing its platform less well and its Ofcom needs increase, and what we would expect to happen to the fee level in those circumstances.
Lord Stevenson of Balmacara (Lab)
My Lords, there is very little to add to that. These are important questions. I simply was struck by the thought that the amount of work, effort and thought that has gone into this should not be kept within this Bill. I wonder whether the noble Lord has thought of offering his services to His Majesty’s Treasury, which has difficulty in raising tax from these companies. It would be nice to see that problem resolved.
Lord Parkinson of Whitley Bay (Con)
I am looking forward to returning to arts and heritage; I will leave that to my noble friend Lady Penn.
The noble Lord, Lord Allan, asked some good questions. He is right: the provisions and the parliamentary scrutiny allow for the flexibility for all these things to be looked at and scrutinised in the way that he set out. I stress that the fee regime is designed to be fair to industry; that is central to the approach we have taken. The Bill stipulates that Ofcom must charge only proportionate and justifiable fees to industry. The provisions that Ofcom can make via regulation about the qualifying worldwide revenue aim to ensure that fees are truly representative of the revenue relating to the regulated service and that they will encourage financial transparency. They also aim to aid companies with complex structures which would otherwise struggle to segregate revenues attributable to the provider and its connected entities.
The revenue of the group undertaking can be considered in scope of a provider’s qualifying worldwide revenue if the entity was a member of the provider’s group during any part of the qualifying period and the entity receives during the qualifying period any amount referrable to a regulated service. The regulations provide Ofcom with a degree of flexibility as to whether or not to make such provisions, because Ofcom will aim to keep the qualifying worldwide revenue simple.
I am grateful for noble Lords’ support for the amendments and believe that they will help Ofcom and the Government to structure a fair and transparent fee regime which charges proportionate fees to fund the cost of the regulatory regime that the Bill brings in.
“(3A) The Statutory Instruments Act 1946 applies in relation to OFCOM’s powers to make regulations under this Act as if OFCOM were a Minister of the Crown.(3B) The Documentary Evidence Act 1868 (proof of orders and regulations etc) has effect as if—(a) OFCOM were included in the first column of the Schedule to that Act;(b) OFCOM and persons authorised to act on their behalf were mentioned in the second column of that Schedule.”Member’s explanatory statement
This amendment makes technical provision in relation to regulations made by OFCOM under the Bill.
“(aa) regulations under section (“Regulations by OFCOM about qualifying worldwide revenue etc”)(1),”Member’s explanatory statement
This amendment provides that regulations made by OFCOM under subsection (1) of the new Clause 76 proposed in my name regarding “qualifying worldwide revenue” etc are subject to the affirmative Parliamentary procedure.
“(m) regulations under paragraph 5(9) of Schedule 13,”Member’s explanatory statement
This amendment provides that regulations made by OFCOM under paragraph 5(9) of Schedule 13 regarding “qualifying worldwide revenue” etc for the purposes of that paragraph are subject to the affirmative Parliamentary procedure.
“(7A) A statutory instrument containing the first regulations under paragraph 1(1) of Schedule 11 (whether alone or with regulations under paragraph 1(2) or (3) of that Schedule) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.(7B) Any other statutory instrument containing regulations under paragraph 1(1) of Schedule 11 is subject to annulment in pursuance of a resolution of either House of Parliament.”Member’s explanatory statement
This amendment provides that the first regulations made under paragraph 1(1) of Schedule 11 (regulations specifying Category 1 threshold conditions) are subject to the affirmative Parliamentary procedure.
Lord Parkinson of Whitley Bay (Con)
My Lords, as I was eagerly anticipating, government Amendments 238A and 238D seek to change the parliamentary process for laying the first regulations specifying the category 1 threshold conditions from the negative to the affirmative procedure. I am pleased to bring forward this change in response to the recommendation of your Lordships’ Delegated Powers and Regulatory Reform Committee.
The change will ensure that there are adequate levels of parliamentary scrutiny of the first regulations specifying the category 1 threshold conditions. This is appropriate given that the categorisation of category 1 services will lead to the most substantial duties on the largest and most influential services. As noble Lords are aware, these include the duties on user empowerment, user identity verification, journalistic and news publisher content, content of democratic importance, and fraudulent advertising.
Category 2A services will have only additional transparency and fraudulent advertising duties, and category 2B services will be subject only to additional transparency reporting duties. The burden of these duties is significantly less than the additional category 1 duties, and we have therefore retained the use of the negative resolution procedure for these regulations, as they require less parliamentary scrutiny.
Future changes to the category 1 threshold conditions will also use the negative procedure. This will ensure that the regime remains agile in responding to change, which I know was of particular concern to noble Lords when we debated the categorisation group in Committee. Keeping the negative procedure for such subsequent uses will avoid the risk of future changes being subject to delays because of parliamentary scheduling. I beg to move.
Baroness Morgan of Cotes (Con)
My Lords, I shall speak to Amendment 245. I would like to thank my noble friend the Minister, and also the Minister on leave, for the conversations that I have had with them about this amendment and related issues. As we have already heard, the platform categorisation is extremely important. So far, much of it is unknown, including which sites are actually going to be in which categories. For example, we have not yet seen any proposed secondary regulations. As my noble friend has just outlined, special duties apply, especially for those sites within category 1—user empowerment in particular, but also other duties relating to content and fraudulent advertisements.
Clause 85 and Schedule 11 set out the thresholds for determining which sites will be in category 1, category 2A or category 2B. I am very mindful of the exhortation of the noble Lord, Lord Stevenson, about being brief, but it is amazing how much you have to say about one word to explain this amendment. This amendment proposes to change an “and” to an “or” in relation to determining which sites would fall within category 1. It would move from a test of size “and” functionality to a test of size “or” functionality. This would give Ofcom more flexibility to decide which platforms really need category 1 designation. Category 1 should not be decided just on size; it should also be possible to determine it on the basis of functionality.
Functionality is defined in the Bill in Clause 208. We will get to those amendments shortly, but there is no doubt from what the Government have already conceded, or agreed with those of us who have been campaigning passionately on the Bill for a number of years, that functionality can make a platform harmful. It is perfectly possible to have small platforms that both carry highly harmful content and themselves become harmful in the way that they are designed. We have heard many examples and I will not detain the House with them, but I draw attention to two particular sites which capture how broad this is. The perpetrators of offline hate crimes are often linked to these small platforms. For example, the perpetrator of the 2018 Tree of Life synagogue mass shooting had an online presence on the right-wing extremist social network Gab. In the UK, Jake Davison, the self-proclaimed incel who killed five people in Plymouth in 2021, frequented smaller incel forums after he was banned from Reddit in the days leading up to the mass shooting.
I also want to share with noble Lords an email that I received just this week from a family who had been to see their Member of Parliament, Matt Rodda MP, and also the noble Baroness, Lady Kidron, who I know is very regretful that she cannot be here today. I thank Victoria and Jean Eustace for sharing the story of their sister and daughter. Victoria wrote: “I am writing to you regarding the Online Safety Bill, as my family and I are concerned it will not sufficiently protect vulnerable adults from harm. My sister, Zoe Lyalle, killed herself on 26 May 2020, having been pointed towards a method using an online forum called Sanctioned Suicide. Zoe was 18 years old at the time of her death and as such technically an adult, but she was autistic, so she was emotionally less mature than many 18 year- olds. She found it difficult to critically analyse written content”. She says that “The forum in question is not large and states on its face that it does not encourage suicide, although its content does just that”. The next part I was even more shocked about: “Since Zoe’s death, we have accessed her email account. The forum continues to email Zoe, providing her with updates on content she may have missed while away from the site, as well as requesting donations. One recent email included a link to a thread on the forum containing tips on how best to use the precise method that Zoe had employed”.
In her note to me, the Minister on leave said that she wanted to catch some of the platforms we are talking about with outsized influence. In my reply, I said that those sites on which people are encouraged to take their own lives or become radicalised and therefore take the harms they are seeing online into the real world undoubtedly exercise influence and should be tackled.
It is also perfectly possible for us to have large but safe platforms. I know that my noble friend Lord Moylan may want to discuss this in relation to sites that he has talked about already on this Bill. The risk of the current drafting is a flight of users from these large platforms, newly categorised as category 1, to the small, non-category 1 platforms. What if a platform becomes extremely harmful very quickly? How will it be recategorised speedily but fairly and involving parliamentary oversight?
The Government have run a variety of arguments as to why the “and” in the Bill should not become an “or”. They say that it creates legal uncertainty. Every Bill creates legal uncertainty; that is why we have an army of extremely highly paid lawyers, not just in this country but around the world. They say that what we are talking about is broader than illegal content or content related to children’s safety, but they have already accepted an earlier amendment on safety by design and, in subsections (10) to (12) of Clause 12, that specific extra protections should be available for content related to
“suicide or an act of deliberate self-injury, or … an eating disorder or behaviours associated with an eating disorder”
or abusive content relating to race, religion, sex, sexual orientation, disability or gender reassignment and that:
“Content is within this subsection if it incites hatred against people”.
The Government have already breached some of their own limits on content that is not just illegal or relates to child safety duties. In fact, they have agreed that that content should have enhanced triple-shield protection.
The Government have also said that they want to avoid burdens on small but low-harm platforms. I agree with that, but with an “or” it would be perfectly possible for Ofcom to decide by looking at size or functionality and to exclude those smaller platforms that do not present the harm we all care about. The Minister may also offer me a review of categorisation; however, it is a review of the tiers of categorisation and not the sites within the categories, which I think many of us will have views on over the years.
I come to what we should do on this final day of Report. I am very thankful to those who have had many conversations on this, but there is a fundamental difference of opinion in this House on these matters. We will talk about functionality shortly and I am mindful of the pre-legislative scrutiny committee’s recommendation that this legislation should adopt
“a more nuanced approach, based not just on size and high-level functionality, but factors such as risk, reach, user base, safety performance, and business model”.
There should be other factors. Ofcom should have the ability to decide whether it takes one factor or another, and not have a series of all the thresholds to be passed, to give it the maximum flexibility. I will listen very carefully to what my noble friend the Minister and other noble Lords say, but at this moment I intend to test the opinion of the House on this amendment.
Lord Knight of Weymouth (Lab)
My Lords, I have good news and bad news for the Minister. The good news is that we have no problem with his amendments. The bad news, for him, is that we strongly support Amendment 245 from the noble Baroness, Lady Morgan of Coates, which, as others have said, we think is a no-brainer.
The beauty of the simple amendment has been demonstrated; it just changes the single word “and” to “or”. It is of course right to give Ofcom leeway—or flexibility, as the noble Baroness, Lady Finlay, described it—in the categorisation and to bring providers into the safety regime. What the noble Baroness, Lady Morgan, said about the smaller platforms, the breadcrumbing relating to the Jake Davison case and the functionality around bombarding Zoe Lyalle with those emails told the story that we needed to hear.
As it stands, the Bill requires Ofcom to always be mindful of size. We need to be more nuanced. From listening to the noble Lord, Lord Allan of Hallam—with his, as ever, more detailed analysis of how things work in practice—my concern is that in the end, if it is all about size, Ofcom will end up having to have a much larger number in scope on the categorisation of size in order to cover all the platforms that it is worried about. If we could give flexibility around size or functionality, that would make the job considerably easier.
We on this side think categorisation should happen with a proportionate, risk-based approach. We think the flexibility should be there, the Minister is reasonable—come on, what’s not to like?
Lord Parkinson of Whitley Bay (Con)
My Lords, I shall explain why the simple change of one word is not as simple as it may at first seem. My noble friend’s Amendment 245 seeks to amend the rule that a service must meet both a number-of-users threshold and a functionality threshold to be designated as category 1 or 2B. It would instead allow the Secretary of State by regulation to require a service to have to meet only one or other of the two requirements. That would mean that smaller user-to-user services could be so categorised by meeting only a functionality threshold.
In practical terms, that would open up the possibility of a future Secretary of State setting only a threshold condition about the number of users, or alternatively about functionality, in isolation. That would create the risk that services with a high number of users but limited functionality would be caught in scope of category 1. That could be of particular concern to large websites that operate with limited functionality for public interest reasons, and I am sure my noble friend Lord Moylan can think of one that fits that bill. On the other hand, it could capture a vast array of low-risk smaller services merely because they have a specific functionality—for instance, local community fora that have livestreaming capabilities. So we share the concerns of the noble Lord, Lord Allan, but come at it from a different perspective from him.
My noble friend Lady Morgan mentioned the speed of designation. The Bill’s approach to the pace of designation for the category 1 watchlist and register is flexible—deliberately so, to allow Ofcom to act as quickly as is proportionate to each emerging service. Ofcom will have a duty proactively to identify, monitor and evaluate emerging services, which will afford it early visibility when a service is approaching the category 1 threshold. It will therefore be ready to act accordingly to add services to the register should the need arise.
The approach set out in my noble friend’s Amendment 245 would not allow the Secretary of State to designate individual services as category 1 if they met one of the threshold conditions. Services can be designated as category 1 only if they meet all the relevant threshold conditions set out in the regulations made by the Secretary of State. That is the case regardless, whether the regulations set out one condition or a combination of several conditions.
The noble Baroness, Lady Finlay, suggested that the amendment would assist Ofcom in its work. Ofcom itself has raised concerns that amendments such as this—to introduce greater flexibility—could increase the risk of legal challenges to categorisation. My noble friend Lady Morgan was part of the army of lawyers before she came to Parliament, and I am conscious that the noble Lord, Lord Clement-Jones, is one as well. I hope they will heed the words of the regulator; this is not a risk that noble Lords should take lightly.
I will say more clearly that small companies can pose significant harm to users—I have said it before and I am happy to say it again—which is why there is no exemption for small companies. The very sad examples that my noble friend Lady Morgan gave in her speech related to illegal activity. All services, regardless of size, will be required to take action against illegal content, and to protect children if they are likely to be accessed by children. This is a proportionate regime that seeks to protect small but excellent platforms from overbearing regulation. However, I want to be clear that a small platform that is a font of illegal content cannot use the excuse of its size as an excuse for not dealing with it.
Category 1 services are those services that have a major influence over our public discourse online. Again, I want to be clear that designation as a category 1 service is not based only on size. The thresholds for category 1 services will be based on the functionalities of a service as well as the size of the user base. The thresholds can also incorporate other characteristics that the Secretary of State deems relevant, which could include factors such as a service’s business model or its governance. Crucially, Ofcom has been clear that it will prioritise engagement with high-risk or high-impact services, irrespective of their categorisation, to understand their existing safety systems and how they plan to improve them.
Member’s explanatory statement
This amendment provides that regulations made by OFCOM about supporting evidence to be supplied by providers for the purposes of Part 6 of the Bill (fees) are subject to the negative Parliamentary procedure.
Lord Kamall (Con)
I associate myself with the comments of my noble friend Lady Stowell on this whole issue, and I refer to my register of interests. One question we should be asking, which goes wider than this Bill, is: who regulates the regulators? It is a standard problem in political science and often known as principal agent theory, whereby the principals delegate powers to the agents for many reasons, and you see agency slack, whereby they develop their own powers beyond what was perhaps originally intended. For that reason, I completely associate myself with my noble friend Lady Stowell’s comments—and not because she chairs a committee on which I sit and I hope to get a favour of more speaking time on that committee. It is simply because, on its merit, we should all be asking who regulates the regulators and making sure that they are accountable. We are asking the same question of the Secretary of State, and quite rightly, the Secretary of State should be accountable for any measures they propose, but we should also be asking it of regulators.
Lord Parkinson of Whitley Bay (Con)
My Lords, I have always felt rather sorry for the first Viscount Addison, because what we refer to as the Salisbury convention is really the Salisbury-Addison convention. So while I am grateful to the noble Lord, Lord Stevenson, for his flattering speech, I shall insist on calling it the “Parkinson-Stevenson rule”, not least in the hope that that mouthful will encourage people to forget its name more swiftly.
I am grateful to the noble Lord for his attention to this matter and the useful discussions that we have had. His Amendment 239 would go beyond the existing legislative process for the delegated powers in the Bill by providing for parliamentary committees to be, in effect, inserted into the secondary legislative process. The delegated powers in the Bill are crucial for implementing the regime effectively and for ensuring that it keeps pace with changes in technology. Regulation-making powers are an established part of our legislative practice, and it would not be appropriate to deviate from existing processes.
However, I agree that ongoing parliamentary scrutiny of the regime will be crucial in helping to provide noble Lords and Members in another place with the reassurance that the implementation of the regime is as we intended. As the noble Lord noted, the establishment of the Science, Innovation and Technology Select Committee in another place means that there is a new dedicated committee looking at this important area of public policy. That provides an opportunity for cross-party scrutiny of the online safety regime and broader issues. While it will be, as he said, for respective committees to decide their priorities, we welcome any focus on online safety, and certainly welcome committees in both Houses co-operating effectively on this matter. I am certain that the Communications and Digital Committee of your Lordships’ House will continue to play a vital role in the scrutiny of the online safety regime.
We would fully expect these committees to look closely at the codes of practice, the uses of regulation-making powers and the powers of direction in a way that allows them to focus on key issues of interest. To support that, I can commit that the Government will do two things. First, where the Bill places a consultation requirement on the Government, we will ensure that the relevant committees have every chance to play a part in that consultation by informing them that the process is open. Secondly, while we do not wish to see the implementation process delayed, we will, where possible, share draft statutory instruments directly with the relevant committees ahead of the formal laying process. These timelines will be on a case-by-case basis, considering what is appropriate and reasonably practical. It will be for the committees to decide how they wish to engage with the information that we provide, but it will not create an additional approval process to avoid delaying implementation. I am grateful to my noble friend Lady Stowell of Beeston for her words of caution and wisdom on that point as both chairman of your Lordships’ committee and a former Leader of your Lordships’ House.
I hope that the noble Lord will be satisfied by what I have set out and will be willing to withdraw his amendment so that our rule might enter into constitutional history more swiftly.
Lord Stevenson of Balmacara (Lab)
I am very grateful to everyone who has contributed to the debate, despite my injunction that no one was to speak other than those key persons—but it was nice to hear views around the House in support for this proposal, with caution. The noble Baroness, Lady Stowell, was right to be clear that we have to be focused on where we are going on this; there is quite a lot at stake here, and it is a much bigger issue than simply this Bill and these particular issues. Her willingness to take this on in a wider context is most welcome, and I look forward to hearing how that goes. I am also very grateful for the unexpected but very welcome support from the noble Baroness, Lady Fox. It was nice that she finally agreed to meet on one piece of territory, if we cannot agree on some of the others. The noble Lord, Lord Kamall, is right to say that we need to pick up the much broader question about who regulates those who regulate us. This is not the answer, but it certainly gets us a step in the direction.
I was grateful to the Minister for suggesting that the “Parkinson rule” could take flight, but I shall continue to call it by a single name—double-barrelled names are not appropriate here. We will see the results of that in the consultation; the things that already have to be consulted about will be offered to the committees, and it is up to them to respond on that, but it is a very good start. The idea that drafts and issues that are being prepared for future regulation will be shown ahead of the formal process is exactly where I wanted to be on this, so I am very grateful for that. I withdraw the amendment.
Member’s explanatory statement
This amendment omits a reference to regulations made by the Secretary of State. Details about supporting evidence etc to accompany providers’ notifications for the purposes of the fees regime are now to be contained in regulations made by OFCOM (see the new Clause 76 proposed in my name).
“Regulations by OFCOM about qualifying worldwide revenue etc
(1) For the purposes of this Part, OFCOM may by regulations make provision—(a) about how the qualifying worldwide revenue of a provider of a regulated service is to be determined, and(b) defining the “qualifying period” in relation to a charging year.(2) OFCOM may by regulations also make provision specifying or describing evidence, documents or other information that providers must supply to OFCOM for the purposes of section 74 (see subsection (3)(b) of that section), including provision about the way in which providers must supply the evidence, documents or information.(3) Regulations under subsection (1)(a) may provide that the qualifying worldwide revenue of a provider of a regulated service (P) who is a member of a group during any part of a qualifying period is to include the qualifying worldwide revenue of any entity that—(a) is a group undertaking in relation to P for all or part of that period, and(b) receives or is due to receive, during that period, any amount referable (to any degree) to a regulated service provided by P.(4) Regulations under subsection (1)(a) may, in particular—(a) make provision about circumstances in which amounts do, or do not, count as being referable (to any degree) to a regulated service for the purposes of the determination of the qualifying worldwide revenue of the provider of the service or of an entity that is a group undertaking in relation to the provider;(b) provide for cases or circumstances in which amounts that—(i) are of a kind specified or described in the regulations, and(ii) are not referable to a regulated service,are to be brought into account in determining the qualifying worldwide revenue of the provider of the service or of an entity that is a group undertaking in relation to the provider.(5) Regulations which make provision of a kind mentioned in subsection (3) may include provision that, in the case of an entity that is a group undertaking in relation to a provider for part (not all) of a qualifying period, only amounts relating to the part of the qualifying period for which the entity was a group undertaking may be brought into account in determining the entity’s qualifying worldwide revenue.(6) Regulations under subsection (1)(a) may make provision corresponding to paragraph 5(8) of Schedule 13.(7) Before making regulations under subsection (1) OFCOM must consult—(a) the Secretary of State,(b) the Treasury, and(c) such other persons as OFCOM consider appropriate.(8) Before making regulations under subsection (2) OFCOM must consult the Secretary of State.(9) Regulations under this section may make provision subject to such exemptions and exceptions as OFCOM consider appropriate.(10) In this section—“group” means a parent undertaking and its subsidiary undertakings, reading those terms in accordance with section 1162 of the Companies Act 2006;“group undertaking” has the meaning given by section 1161(5) of that Act.”Member’s explanatory statement
This amendment substitutes Clause 76, which is about what is meant by “qualifying worldwide revenue”. The new Clause provides for OFCOM to make regulations about this and related matters for the purposes of the fees regime, and allows the regulations (among other things) to provide that revenue arising to certain entities in the same group as a provider of a regulated service is to be brought into account.
Member’s explanatory statement
This amendment provides that the Secretary of State must specify the threshold figure in regulations (rather than in a published statement).
Member’s explanatory statement
This amendment is consequential on the new Clause 76 proposed in my name.
Baroness Harding of Winscombe (Con)
My Lords, if I may, I shall speak very briefly, in the absence of my noble friend Lady Kidron, and because I am one of the signatories of this amendment, alongside the noble Lord, Lord Stevenson, and the right reverend Prelate the Bishop of Oxford. Amendment 240, together with a number of amendments that we will be debating today, turns on a fundamental issue that we have not yet resolved.
I came in this morning being told that we would be voting on this amendment and that other amendments later today would be consequential—I am a novice at this level of parliamentary procedure, so forgive me if I have got myself confused during the day—but I now understand that my noble friend considers this amendment to be consequential but, strangely, the amendments right at the end of the day are not. I just wanted to flag to the House that they all cover the same fundamental issue of whether harms can be unrelated to content, whether the harms of the online world can be to do with functionality—the systems and processes that drive the addiction that causes so much harm to our children.
It is a fundamental disagreement. I pay tribute to the amount of time the department, the Secretary of State and my noble friend have spent on it, but it is not yet resolved and, although I understand that I should now say that I beg leave to move the amendment formally, I just wanted to mark, with apologies, the necessity, most likely, of having to bring the same issue back to vote on later today.
Lord Parkinson of Whitley Bay (Con)
My Lords, His Majesty’s Government indeed agree that this is consequential on the other amendments, including Amendment 35, which the noble Baroness, Lady Kidron, previously moved at Report. We disagreed with them, but we lost that vote; this is consequential, and we will not force a Division on it.
We will have further opportunity to debate the fundamental issues that lie behind it, to which my noble friend Lady Harding just referred. Some of the amendments on which we may divide later, the noble Baroness, Lady Kidron, tabled after defeating the Government the other day, so we cannot treat them as consequential. We look forward to debating them; I will urge noble Lords not to vote for them, but we will have opportunity to discuss them later.
Member’s explanatory statement
Clause 82 is about OFCOM’s general duties. This amendment and the next amendment in my name insert a reference to Chapter 3A, which is the new Chapter containing the new duties imposed by the Clause proposed after Clause 67 in my name.
Member’s explanatory statement
See the explanatory statement for the preceding amendment in my name.
Member’s explanatory statement
This technical amendment is needed because the new notice requiring information in connection with an investigation into the death of a child (see the new Clause proposed after Clause 91 in my name) is also a form of information notice.
“(2A) The power conferred by subsection (1) also includes power to require a person within any of paragraphs (a) to (d) of subsection (4) to take steps so that OFCOM are able to remotely access the service provided by the person, or remotely access equipment used by the service provided by the person, in order to view, in particular—(a) information demonstrating in real time the operation of systems, processes or features, including functionalities and algorithms, used by the service;(b) information generated in real time by the performance of a test or demonstration of a kind required by a notice under subsection (1).”Member’s explanatory statement
This amendment makes it clear that OFCOM have the power by notice to require a provider of a regulated service (among others) to take steps to allow OFCOM to remotely access the service so that they can view the operation in real time of systems, processes, functionalities and algorithms, and tests and demonstrations.
“(iva) any duty set out in section (Disclosure of information about use of service by deceased child users) (deceased child users),”Member’s explanatory statement
This amendment mentions the new duties imposed by the Clause proposed after Clause 67 in my name in the Clause that sets out the purposes for which OFCOM may require people to provide information.
“Information in connection with an investigation into the death of a child
(1) OFCOM may by notice under this subsection require a relevant person to provide them with information for the purpose of—(a) responding to a notice given by a senior coroner under paragraph 1(2) of Schedule 5 to the Coroners and Justice Act 2009 in connection with an investigation into the death of a child, or preparing a report under section (OFCOM’s report in connection with investigation into a death) in connection with such an investigation;(b) responding to a request for information in connection with the investigation of a procurator fiscal into, or an inquiry held or to be held in relation to, the death of a child, or preparing a report under section (OFCOM’s report in connection with investigation into a death) in connection with such an inquiry;(c) responding to a notice given by a coroner under section 17A(2) of the Coroners Act (Northern Ireland) 1959 (c. 15 (N.I.)) in connection with—(i) an investigation to determine whether an inquest into the death of a child is necessary, or(ii) an inquest in relation to the death of a child,or preparing a report under section (OFCOM’s report in connection with investigation into a death) in connection with such an investigation or inquest. (2) The power conferred by subsection (1) includes power to require a relevant person to provide OFCOM with information about the use of a regulated service by the child whose death is under investigation, including, in particular—(a) content encountered by the child by means of the service,(b) how the content came to be encountered by the child (including the role of algorithms or particular functionalities),(c) how the child interacted with the content (for example, by viewing, sharing or storing it or enlarging or pausing on it), and(d) content generated, uploaded or shared by the child.(3) The power conferred by subsection (1) includes power to require a relevant person to obtain or generate information.(4) The power conferred by subsection (1) must be exercised in a way that is proportionate to the purpose mentioned in that subsection.(5) The power conferred by subsection (1) does not include power to require the provision of information in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications, could be maintained in legal proceedings. (6) Nothing in this section limits the power conferred on OFCOM by section 91.(7) In this section—“inquiry” means an inquiry held, or to be held, under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (asp 2);“information” includes documents, and any reference to providing information includes a reference to producing a document (and see also section 92(9));“relevant person” means a person within any of paragraphs (a) to (e) of section 91(4).”Member’s explanatory statement
This amendment makes it clear that OFCOM have the power to obtain information for the purposes of responding to a notice given to them by a coroner or, in Scotland, a request from a procurator fiscal, in connection with the death of a child, including a power to obtain information from providers about the use of a service by the deceased child.
“(A1) A notice given under section 91(1) or (Information in connection with an investigation into the death of a child)(1) is referred to in this Act as an information notice.”Member’s explanatory statement
This amendment provides that a notice under the new Clause proposed in my name concerning OFCOM’s power to obtain information in connection with an investigation into the death of a child is called an “information notice” (as well as a notice under Clause 91). This ensures that provisions of the Bill that relate to information notices also apply to a notice given under that Clause.
Member’s explanatory statement
This amendment is consequential on the next amendment of Clause 94 in my name.
Lord Parkinson of Whitley Bay (Con)
My Lords, these amendments are concerned with Ofcom’s powers under Clause 111 to issue notices to deal with terrorism content and child sexual exploitation and abuse content.
I acknowledge the concerns which have been aired about how these powers work with encrypted services. I want to make it clear that the Bill does not require companies to break or weaken encryption, and we have built in strong safeguards to ensure that users’ privacy is protected. Encryption plays an important role online, and the UK supports its responsible use. I also want to make it clear that we are not introducing a blanket requirement for companies to monitor all content for all harms, at all times. That would not be proportionate.
However, given the serious risk of harm to children from sexual abuse and exploitation online, the regulator must have appropriate, tightly targeted powers to compel companies to take the most effective action to tackle such reprehensible illegal activity which is taking place on their services. We must ask companies to do all that is technically feasible to keep children safe, subject to stringent legal safeguards.
The powers in the Bill are predicated on risk assessments. If companies are managing the risks on their platform appropriately, Ofcom will not need to use its powers. As a last resort, however, where there is clear evidence of child sexual abuse taking place on a platform, Ofcom will be able to direct companies either to use, or to make best efforts to develop or source, accredited and accurate technology to identify and remove this illegal content. To be clear, these powers will not enable Ofcom or our law enforcement agencies to obtain any automatic access to the content detected. It is simply a matter of making private companies take effective action to prevent child sexual abuse on their services.
Ofcom must consider a wide range of matters when deciding whether a notice is necessary and proportionate, including the impacts on privacy and freedom of expression of using a particular technology on a particular service. Ofcom will only be able to require the use of technology accredited as highly accurate in detecting illegal child sexual abuse or terrorism content, vastly minimising the risk that content is wrongly identified.
In addition to these safeguards, as a public body, Ofcom is bound through the Human Rights Act 1998 by the European Convention on Human Rights, including Articles 8 and 10. Ofcom has an obligation not to act in a way which unduly interferes with the right to privacy and freedom of expression when carrying out its duties, for which it is held to account.
If appropriate technology does not exist which meets these requirements, Ofcom cannot require its use. That is why the powers include the ability for Ofcom to require companies to make best endeavours to develop or source a solution. It is right that we can require technology companies to use their considerable resources and expertise to develop the best possible protections for children in encrypted environments.
Despite the breadth of the existing safeguards, we recognise that concerns remain about these powers, and we have listened to the points that noble Lords raised in Committee about privacy and technical feasibility. That is why we are introducing additional safeguards. I am grateful for the constructive engagement I have had with noble Lords across your Lordships’ House on this issue, and I hope that the government amendments alleviate their concerns.
I turn first to our Amendments 250B, 250C, 250D, 255A, 256A, 257A, 257B, 257C and 258A, which require that Ofcom obtain a skilled persons’ report before issuing a warning notice and exercising its powers under Clause 111. This independent expert scrutiny will supplement Ofcom’s own expertise to ensure that it has a full understanding of relevant technical issues to inform its decision-making. That will include issues specific to the service in question, such as its design and relevant factors relating to privacy.
Lord Parkinson of Whitley Bay (Con)
I am grateful to noble Lords for their further scrutiny of this important but complex area, and for the engagement that we have had in the days running up to it as well. We know how child sexual exploitation and abuse offenders sadly exploit private channels, and the great danger that this poses, and we know how crucial these channels are for secure communication. That is why, where necessary and proportionate, and where all the safeguards are met, it is right that Ofcom can require companies to take all technically feasible measures to remove this vile and illegal content.
The government amendments in this group will go further to ensure that a notice is well informed and targeted and does not unduly restrict users’ rights. Privacy and safety are not mutually exclusive—we can and must have both. The safety of our children depends on it.
I make it clear again that the Bill does not require companies to break or weaken end-to-end encryption on their services. Ofcom can require the use of technology on an end-to-end encrypted service only when it is technically feasible and has been assessed as meeting minimum standards of accuracy. When deciding whether to issue a notice, Ofcom will engage in continual dialogue with the company and identify reasonable, technically feasible solutions to the issues identified. As I said in opening, it is right that we require technology companies to use their considerable resources and expertise to develop the best possible protections to keep children safe in encrypted environments. They are well placed to innovate to find solutions that protect both the privacy of users and the safety of children.
Baroness Stowell of Beeston (Con)
Just to be clear, am I right to understand my noble friend as saying that there is currently no technology that would be technically acceptable for tech companies to do what is being asked of them? Did he say that tech companies should be looking to develop the technology to do what may be required of them but that it is not currently available to them?
Lord Moylan (Con)
For clarification, if the answer to that is that the technology does not exist—which I believe is correct, although there are various snake oil salespeople out there claiming that it does, as the noble Baroness, Lady Fox of Buckley, said—my noble friend seems to be saying that the providers and services should develop it. This seems rather circular, as the Bill says that they must adopt an approved technology, which suggests a technology that has been imposed on them. What if they cannot and still get such a notice? Is it possible that these powers will never be capable of being used, especially if they do not co-operate?
Lord Parkinson of Whitley Bay (Con)
To answer my noble friend Lady Stowell first, it depends on the type of service. It is difficult to give a short answer that covers the range of services that we want to ensure are covered here, but we are seeking to keep this and all other parts of the Bill technology neutral so that, as services develop, technology changes and criminals, unfortunately, seek to exploit that, technology companies can continue to innovate to keep children safe while protecting the privacy of their users. That is a long-winded answer to my noble friend’s short question, but necessarily so. Ofcom will need to make its assessments on a case- by-case basis and can require a company to use its best endeavours to innovate if no effective and accurate technology is currently available.
While I am directing my remarks towards my noble friend, I will also answer a question she raised earlier on general monitoring. General monitoring is not a legally defined concept in UK law; it is a term in European Union law that refers to the generalised monitoring of user activity online, although its parameters are not clearly defined. The use of automated technologies is already fundamental to how many companies protect their users from the most abhorrent harms, including child sexual abuse. It is therefore important that we empower Ofcom to require the use of such technology where it is necessary and proportionate and ensure that the use of these tools is transparent and properly regulated, with clear and appropriate safeguards in place for users’ rights. The UK’s existing intermediary liability regime remains in place.
Amendment 255 from my noble friend Lord Moylan seeks to prevent Ofcom imposing any requirement in a notice that would weaken or remove end-to-end encryption. He is right that end-to-end encryption should not be weakened or removed. The powers in the Bill will not do that. These powers are underpinned by proportionality and technical feasibility; if it is not proportionate or technically feasible for companies to identify child sexual exploitation abuse content on their platform while upholding users’ right to privacy, Ofcom cannot require it.
I agree with my noble friend and the noble Baroness, Lady Fox, that encryption is a very important and popular feature today. However, with technology evolving at a rapid rate, we cannot accept amendments that would risk this legislation quickly becoming out of date. Naming encryption in the Bill would risk that happening. We firmly believe that the best approach is to focus on strong safeguards for upholding users’ rights and ensuring that measures are proportionate to the specific situation, rather than on general features such as encryption.
The Bill already requires Ofcom to consider the risk that technology could result in a breach of any statutory provision or rule of law concerning privacy and whether any alternative measures would significantly reduce the amount of illegal content on a service. As I have said in previous debates, Ofcom is also bound by the Human Rights Act not to act inconsistently with users’ rights.
Baroness Fox of Buckley (Non-Afl)
Will the Minister write to noble Lords who have been here in Committee and on Report in response to the fact that it is not just encryption companies saying that the demands of this clause will lead to the breaching of encryption, even though the Minister and the Government keep saying that it will not? As I have indicated, a wide range of scientists and technologists are saying that, whatever is said, demanding that Ofcom insists that technology notices are used in this way will inadvertently lead to the breaking of encryption. It would be useful if the Government at least explained scientifically and technologically why those experts are wrong and they are right.
Lord Parkinson of Whitley Bay (Con)
I am very happy to put in writing what I have said from the Dispatch Box. The noble Baroness may find that it is the same, but I will happily set it out in further detail.
I should make it clear that the Bill does not permit law enforcement agencies to access information held on platforms, including access to private channels. The National Crime Agency will be responsible for receiving reports from in-scope services via secure transmission, processing these reports and, where appropriate, disseminating them to other UK law enforcement bodies and our international counterparts. The National Crime Agency will process only information provided to it by the company; where it determines that the content is child sexual abuse content and meets the threshold for criminality, it can request further information from the company using existing powers.
I am glad to hear that my noble friend Lord Moylan does not intend to divide on his amendment. The restrictions it sets out are not ones we should impose on the Bill.
Amendments 256, 257 and 259 in the name of the noble Lord, Lord Stevenson of Balmacara, require a notice to be approved by a judicial commissioner appointed under the Investigatory Powers Act 2016 and remove Ofcom’s power to require companies to make best endeavours to develop or source new technology to address child sexual exploitation and abuse content.
Lord Allan of Hallam (LD)
I appreciate the tone of the Minister’s comments very much, but they are not entirely reassuring me. There is a debate going on out there: there are people saying, “We’ve got these fabulous technologies that we would like Ofcom to order companies to install” and there are companies saying, “That would be disastrous and break encryption if we had to install them”. That is a dualistic situation where there is a contest going on. My amendment seeks to make sure the conflict can be properly resolved. I do not think Ofcom on its own can ever do that, because Ofcom will always be defending what it is doing and saying “This is fine”. So, there has to be some other mechanism whereby people can say it is not fine and contest that. As I say, in this debate we are ignoring the fact that they are already out there: people saying “We think you should deploy this” and companies saying “It would be disastrous if we did”. We cannot resolve that by just saying “Trust Ofcom”.
Lord Parkinson of Whitley Bay (Con)
To meet the expectation the noble Lord voiced earlier, I will indeed point out that Ofcom can consult the ICO as a skilled person if it wishes to. It is important that we square the circle and look at these issues. The ICO will be able to be involved in the way I have set out as a skilled person.
Before I conclude, I want to address my noble friend Lady Harding’s questions on skilled persons. Given that notices will be issued on a case-by-case basis, and Ofcom will need to look at specific service design and existing systems of a provider to work out how a particular technology would interact with that design system, a skilled person’s report better fits this process by requiring Ofcom to obtain tailored advice rather than general technical advice from an advisory board. The skilled person’s report will be largely focused on the technical side of Ofcom’s assessment: that is to say, how the technology would interact with the service’s design and existing systems. In this way, it offers something similar to but more tailored than a technical advisory board. Ofcom already has a large and expert technology group, whose role it is to advice policy teams on new and existing technologies, to anticipate the impact of technologies and so on. It already has strong links with academia and with external researchers. A technical advisory board would duplicate that function. I hope that reassures my noble friend that the points she raised have been taken into account.
So I hope the noble Lord, Lord Allan, will not feel the need to divide—
Lord Stevenson of Balmacara (Lab)
Before the Minister finishes, I posed the question about whether, given the debate and issues raised, he felt completely satisfied that we had arrived at the right solution, and whether there was a case for withdrawing the amendment at this stage and bringing it back at Third Reading, having had further discussions and debate where we could all agree. I take it his answer is “no”.
Lord Parkinson of Whitley Bay (Con)
I am afraid it is “no”, and if the noble Lord, Lord Allan, does seek to divide, we will oppose his amendment. I commend the amendments standing in my name in this group to the House.
Member’s explanatory statement
This amendment is consequential on the new Clause proposed to be inserted in my name after Clause 111. It omits words in Clause 94 (skilled person’s reports) because that new Clause now requires OFCOM to obtain a skilled person’s report before giving a provider a notice under Clause 111.
“(xiia) section (Disclosure of information about use of service by deceased child users) (deceased child users);” Member’s explanatory statement
This amendment has the effect that OFCOM may require a skilled person’s report in relation to compliance with the new duties imposed by the Clause proposed after Clause 67 in my name.
“(4A) The power to observe the carrying on of the regulated service at the premises includes the power to view, using equipment or a device on the premises, information generated in real time by the performance of a test or demonstration required by a notice given under paragraph 3.”Member’s explanatory statement
This amendment ensures that during an inspection of a service, OFCOM have the power to observe a test or demonstration of which notice has been given.
“(3A) In subsection (3), after paragraph (h) insert—“(ha) a person appointed under—(i) paragraph 1 of Schedule 3 to the Coroners and Justice Act 2009, or(ii) section 2 of the Coroners Act (Northern Ireland) 1959 (c. 15 (N.I.));(hb) the procurator fiscal, within the meaning of the enactment mentioned in subsection (5)(s);”.(3B) In subsection (5)—(a) before paragraph (d) insert—“(ca) the Coroners Act (Northern Ireland) 1959;”,(b) after paragraph (na) insert—“(nb) Part 1 of the Coroners and Justice Act 2009;”, and(c) after paragraph (r) insert—“(s) the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (asp 2).”.”Member’s explanatory statement
This amendment ensures that it is not necessary for OFCOM to obtain the consent of providers of internet services before disclosing information to a coroner or, in Scotland, procurator fiscal, who is investigating a person’s death.
Member’s explanatory statement
This is a technical drafting change needed because section 24B of the Communications Act 2003 has been amended after this Bill was introduced.
“(za) section (Requirement to obtain skilled person’s report), which requires OFCOM to obtain a skilled person’s report before giving a notice under subsection (1),”Member’s explanatory statement
This amendment is consequential on the new Clause proposed to be inserted in my name after Clause 111. It inserts a signpost to the requirement in that new Clause to obtain a skilled person’s report before giving a provider a notice under Clause 111.
“Requirement to obtain skilled person’s report
(1) OFCOM may give a notice under section 111(1) to a provider only after obtaining a report from a skilled person appointed by OFCOM under section 94(3).(2) The purpose of the report is to assist OFCOM in deciding whether to give a notice under section 111(1), and to advise about the requirements that might be imposed by such a notice if it were to be given.”Member’s explanatory statement
This amendment requires OFCOM to obtain a skilled person’s report under Clause 94 before giving a notice to a provider under Clause 111.
“(za) contain a summary of the report obtained by OFCOM under section (Requirement to obtain skilled person’s report),”Member’s explanatory statement
This amendment requires a warning notice given to a provider to contain a summary of the skilled person’s report obtained by OFCOM under the new Clause proposed to be inserted in my name after Clause 111.
“(ga) the contents of the skilled person’s report obtained as required by section (Requirement to obtain skilled person’s report);”Member’s explanatory statement
This amendment requires OFCOM to consider the contents of the skilled person’s report obtained as required by the new Clause proposed to be inserted in my name after Clause 111, as part of OFCOM’s decision about whether it is necessary and proportionate to give a notice to a provider under Clause 111.
Member’s explanatory statement
This amendment provides that, if OFCOM propose to issue a further notice under Clause 111, it is not necessary to obtain a further skilled person’s report under the new Clause proposed to be inserted in my name after Clause 111.
“Section (Assessment duties: user empowerment) | Assessments related to duty in section 12(2)” |
This amendment ensures that OFCOM are able to use their enforcement powers in Chapter 6 of Part 7 in relation to a breach of any of the new duties imposed by the Clause proposed after Clause 11 in my name.
Member’s explanatory statement
This amendment is consequential on the amendments of Clause 125 in my name.
“(ba) specify which of those requirements (if any) have been designated as CSEA requirements (see subsections (5A) and (5B)),”Member’s explanatory statement
This amendment is consequential on the next amendment to this Clause in my name.
Lord Parkinson of Whitley Bay (Con)
My Lords, in moving Amendment 262A, I will speak also to the other government amendments in the group. These amendments address the Bill’s enforcement powers. Government Amendments 262A, 262B, 262C, 264A and 266A, Amendments 265, 266 and 267, tabled by my noble friend Lord Bethell, and Amendment 268 tabled by the noble Lord, Lord Stevenson of Balmacara, relate to senior management liability. Amendment 268C from the noble Lord, Lord Weir of Ballyholme, addresses interim service restriction orders.
In Committee, we amended the Bill to create an offence of non-compliance with steps set out in confirmation decisions that relate to specific children’s online safety duties, to ensure that providers and individuals can be held to account where their non-compliance risks serious harm to children. Since then, we have listened to concerns raised by noble Lords and others, in particular that the confirmation decision offence would not tackle child sexual exploitation and abuse. That is why the government amendments in this group will create a new offence of a failure to comply with a child sexual exploitation and abuse requirement imposed by a confirmation decision. This will mean that providers and senior managers can be held liable if they fail to comply with requirements to take specific steps as set out in Ofcom’s confirmation decision in relation to child sexual exploitation and abuse on their service.
Ofcom must designate a step in a confirmation decision as a child sexual exploitation and abuse requirement, where that step relates, whether or not exclusively, to a failure to comply with specific safety duties in respect of child sexual exploitation and abuse content. Failure to comply with such a requirement will be an offence. This approach is necessary, given that steps may relate to multiple or specific kinds of illegal content, or systems and process failures more generally. This approach will ensure that services know from the confirmation decision when they risk criminal liability, while providing sufficient legal certainty via the specified steps to ensure that the offence can be prosecuted effectively.
The penalty for this offence is up to two years in prison, a fine or both. Through Clause 182, where an offence is committed with the consent or connivance of a senior manager, or attributable to his or her neglect, the senior manager, as well as the entity, will have committed the offence and can face up to two years in prison, a fine or both.
I thank my noble friend Lord Bethell, as well as our honourable friends Miriam Cates and Sir William Cash in another place, for their important work in raising this issue and their collaborative approach as we have worked to strengthen the Bill in this area. I am glad that we have reached a position that will help to keep children safe online and drive a change in culture in technology companies. I hope this amendment reassures them and noble Lords that the confirmation decision offence will tackle harms to children effectively by ensuring that technology executives take the necessary steps to keep children safe online. I beg to move.
Lord Allan of Hallam (LD)
My Lords, I will briefly comment positively on the Minister’s explanation of how these offences might work, particularly the association of the liability with the failure to enforce a confirmation decision, which seems entirely sensible. In an earlier stage of the debate, there was a sense that we might associate liability with more general failures to enforce a duty of care. That would have been problematic, because the duty of care is very broad and requires a lot of pieces to be put in place. Associating the offences with the confirmation decision makes absolute sense. Having been in that position, if, as an executive in a tech company, I received a confirmation decision that said, “You must do these things”, and I chose wilfully to ignore that decision, it would be entirely reasonable for me to be held potentially criminally liable for that. That association is a good step forward.
Baroness Merron (Lab)
My Lords, we welcome the government amendments in this group to bring child sexual exploitation and abuse failures into the scope of the senior manager liability and enforcement regime but consider that they do not go far enough. On the government amendments, I have a question for the Minister about whether, through Clause 122, it would be possible to require a company that was subject to action to do some media literacy as part of its harm reduction; in other words, would it be possible for Ofcom to use its media literacy powers as part of the enforcement process? I offer that as a helpful suggestion.
We share the concerns expressed previously by the noble Lord, Lord Bethell, about the scope of the senior manager liability regime, which does not cover all the child safety duties in the Bill. We consider that Amendment 268, in the name of my noble friend Lord Stevenson, would provide greater flexibility, giving the possibility of expanding the list of duties covered in the future. I have a couple of brief questions to add to my first question. Will the Minister comment on how the operation of the senior manager liability regime will be kept under review? This has, of course, been something of a contentious issue in the other place, so could the Minister perhaps tell your Lordships’ House how confident he is that the current position is supported there? I look forward to hearing from the Minister.
Lord Parkinson of Whitley Bay (Con)
I did not quite finish writing down the noble Baroness’s questions. I will do my best to answer them, but I may need to follow up in writing because she asked a number at the end, which is perfectly reasonable. On her question about whether confirmation decision steps could include media literacy, yes, that is a good idea; they could.
Amendment 268, tabled by the noble Lord, Lord Stevenson of Balmacara, seeks to enable the Secretary of State, through regulation, to add to the list of duties which are linked to the confirmation decision offence. We are very concerned at the prospect of allowing an unconstrained expansion of the confirmation decision offence. In particular, as I have already set out, we would be concerned about expansion of those related to search services. There is also concern about unconstrained additions of any other duties related to user-to-user services as well.
We have chosen specific duties which will tackle effectively key issues related to child safety online and tackling child abuse while ensuring that the confirmation decision offence remains targeted. Non-compliance with a requirement imposed by a confirmation decision in relation to such duties warrants the prospect of criminal enforcement on top of Ofcom’s extensive civil enforcement powers. Making excessive changes to the offence risks shifting the regime towards a more punitive and disproportionate enforcement model, which would represent a significant change to the framework as a whole. Furthermore, expansion of the confirmation decision offence could lead to services taking an excessively cautious approach to content moderation to avoid the prospect of criminal liability. We are also concerned that such excessive expansion could significantly increase the burden on Ofcom.
I am grateful to the noble Lord, Lord Weir of Ballyholme, and the noble Baroness, Lady Benjamin, for the way they set out their Amendment 268C. We are concerned about this proposal because it is important that Ofcom can respond to issues on a case-by-case basis: it may not always be appropriate or proportionate to use a specific enforcement power in response to a suspected breach. Interim service restriction orders are some of the strongest enforcement powers in the Bill and will have a significant impact on the service in question. Their use may be disproportionate in cases where there is only a minor breach, or where a service is taking steps to deal with a breach following a provisional notice of contravention.
“(5A) If the condition in subsection (5B) is met in relation to a requirement imposed by a confirmation decision which is of a kind described in subsection (1), OFCOM must designate the requirement as a “CSEA requirement” for the purposes of section 127(2A) (offence of failure to comply with confirmation decision).(5B) The condition referred to in subsection (5A) is that the requirement is imposed (whether or not exclusively) in relation to either or both of the following—(a) a failure to comply with section 9(2)(a) or (3)(a) in respect of CSEA content, or in respect of priority illegal content which includes CSEA content; (b) a failure to comply with section 9(2)(b) in respect of an offence specified in Schedule 6 (CSEA offences), or in respect of priority offences which include such an offence.”Member’s explanatory statement
This amendment provides that where a confirmation decision imposes a requirement to take steps in relation to a failure to comply with a duty under Clause 9(2)(a), (2)(b) or (3)(a) in respect of CSEA content or an offence under Schedule 6, OFCOM must designate the requirement as a CSEA requirement with the result that failure to comply with it is an offence (see the amendment inserting subsection (2A) into Clause 127 in my name).
Member’s explanatory statement
This amendment is consequential on the next amendment in my name.
Member’s explanatory statement
This is a technical amendment which adjusts the language of this provision.
“(2A) A person to whom a confirmation decision is given commits an offence if, without reasonable excuse, the person fails to comply with a CSEA requirement imposed by the decision (see section 122 (5A) and (5B)).”Member’s explanatory statement
This amendment provides that a person commits an offence if the person fails to comply, without reasonable excuse, with a CSEA requirement imposed by a confirmation decision given to the person (see the amendment inserting new subsections (5A) and (5B) into Clause 122 in my name.)
“(9) Regulations made by OFCOM under section (Regulations by OFCOM about qualifying worldwide revenue etc)(1)(a)(including regulations making provision of a kind mentioned in section (Regulations by OFCOM about qualifying worldwide revenue etc)(3), (4) or (5)) apply for the purpose of determining the qualifying worldwide revenue of a provider of a regulated service for an accounting period as mentioned in this paragraph as they apply for the purpose of determining the qualifying worldwide revenue of a provider of a regulated service for a qualifying period for the purposes of Part 6.”Member’s explanatory statement
This amendment provides that regulations under the new Clause 76 proposed in my name about “qualifying worldwide revenue” for the purposes of Part 6 of the Bill (fees) also applies for the purposes of financial penalties under paragraph 4 of Schedule 13.
Member’s explanatory statement
This amendment is consequential on the new Clause proposed to be inserted after Clause 149 in my name expanding OFCOM’s duties to promote media literacy in relation to regulated user-to-user and search services.
Lord Clement-Jones (LD)
My Lords, I think the upshot of this brief debate is that the noble Lord, Lord Knight —how he was tracked down in a Pret A Manger, I have no idea; he is normally too fast-moving for that—in his usual constructive and creative way is asking the Government to constructively engage to find a solution, which he discussed in that Pret A Manger, involving a national helpline, the NSPCC and the Children’s Commissioner, for the very reasons that he and my noble friend Lord Allan have put forward. In no way would this be some of kind of quango, in the words of the noble Baroness, Lady Fox.
This is really important stuff. It could be quite a game-changer in the way that the NSPCC and the Children’s Commissioner collaborate on tackling the issues around social media, the impact of the new rights under the Bill and so on. I very much hope that the Government will be able to engage positively on this and help to bring the parties together to, in a sense, deliver something which is not in the Bill but could be of huge importance.
Lord Parkinson of Whitley Bay (Con)
My Lords, first, I reassure noble Lords that the Government are fully committed to making sure that the interests of children are both represented and protected. We believe, however, that this is already achieved through the provisions in the Bill.
Rather than creating a single advocacy body to research harms to children and advocate on their behalf, as the noble Lord’s amendment suggests, the Bill achieves the same effect through a combination of Ofcom’s research functions, the consultation requirements and the super-complaints provisions. Ofcom will be fully resourced with the capacity and technological ability to assess and understand emerging harms and will be required to research children’s experiences online on an ongoing basis.
For the first time, there will be a statutory body in place charged with protecting children from harm online. As well as its enforcement functions, Ofcom’s research will ensure that the framework remains up to date and that Ofcom itself has the latest, in-depth information to aid its decision-making. This will ensure that new harms are not just identified in retrospect when children are already affected by them and complaints are made; instead, the regulator will be looking out for new issues and working proactively to understand concerns as they develop.
Children’s perspectives will play a central role in the development of the framework, as Ofcom will build on its strong track record of qualitative research to ensure that children are directly engaged. For example, Ofcom’s ongoing programme, Children’s Media Lives, involves engaging closely with children and tracking their views and experiences year on year.
Alongside its own research functions, super-complaints will ensure that eligible bodies can make complaints on systemic issues, keeping the regulator up to date with issues as they emerge. This means that if Ofcom does not identify a systemic issue affecting children for any reason, it can be raised and then dealt with appropriately. Ofcom will be required to respond to the super-complaint, ensuring that its subsequent decisions are understood and can be scrutinised. Complaints by users will also play a vital role in Ofcom’s horizon scanning and information gathering, providing a key means by which new issues can be raised.
The extensive requirements for Ofcom to consult on codes of practice and guidance will further ensure that it consistently engages with groups focused on the interests of children as the codes and guidance are developed and revised. Children’s interests are embedded in the implementation and delivery of this framework.
The Children’s Commissioner will play a key and ongoing role. She will be consulted on codes of practice and any further changes to those codes. The Government are confident that she will use her statutory duties and powers effectively to understand children’s experiences of the digital world. Her primary function as Children’s Commissioner for England is promoting and protecting the rights of children in England and to promote and protect the rights of children across the United Kingdom where those rights are or may be affected by reserved matters. As the codes of practice and the wider Bill relate to a reserved area of law—namely, internet services—the Children’s Commissioner for England will be able to represent the interests of children from England, Scotland, Wales and Northern Ireland when she is consulted on the preparation of codes of practice. That will ensure that children’s voices are represented right across the UK. The Children’s Commissioner for England and her office also regularly speak to the other commissioners about ongoing work on devolved and reserved matters. Whether she does that in branches of Pret A Manger, I do not know, but she certainly works with her counterparts across the UK.
I am very happy to take back the idea that the noble Lord has raised and discuss it with the commissioner. There are many means by which she can carry out her duties, so I am very happy to take that forward. I cannot necessarily commit to putting it in legislation, but I shall certainly commit to discussing it with her. On the proposals in the noble Lord’s amendment, we are concerned that a separate child user advocacy body would duplicate the functions that she already has, so I hope with that commitment he will be happy to withdraw.
Lord Knight of Weymouth (Lab)
My Lords, I am grateful to those who have spoken in this quick debate and for the support from the noble Lord, Lord Allan of Hallam, and the noble Baroness, Lady Fox, about children’s voices being heard. I think that we are getting to the point when there will not be a quango or indeed a minefield, so that makes us all happy. The Minister almost derailed me, because so much of his speaking note was about the interests of children and I am more interested in the voice of children being heard directly rather than people acting on their behalf and representing their interests, but his final comments around being happy to take the idea forward means that I am very happy to withdraw my amendment.
“OFCOM’s reports about use of age assurance
(1) OFCOM must produce and publish a report assessing—(a) how providers of regulated services have used age assurance for the purpose of compliance with their duties set out in this Act,(b) how effective the use of age assurance has been for that purpose, and(c) whether there are factors that have prevented or hindered the effective use of age assurance, or a particular kind of age assurance, for that purpose,(and in this section, references to a report are to a report described in this subsection).(2) A report must, in particular, consider whether the following have prevented or hindered the effective use of age assurance—(a) the costs to providers of using it, and(b) the need to protect users from a breach of any statutory provision or rule of law concerning privacy that is relevant to the use or operation of a regulated service (including, but not limited to, any such provision or rule concerning the processing of personal data).(3) Unless the Secretary of State requires the production of a further report (see subsection (6)), the requirement in subsection (1) is met by producing and publishing one report within the period of 18 months beginning with the day on which sections 11 and 72(2) come into force (or if those provisions come into force on different days, the period of 18 months beginning with the later of those days).(4) In preparing a report, OFCOM must consult—(a) the Information Commissioner, and(b) such other persons as OFCOM consider appropriate.(5) OFCOM must send a copy of a report to the Secretary of State, and the Secretary of State must lay it before Parliament.(6) The Secretary of State may require OFCOM to produce and publish a further report in response to—(a) the development of age assurance technology, or(b) evidence of the reduced effectiveness of such technology.(7) But such a requirement may not be imposed—(a) within the period of three years beginning with the date on which the first report is published, or(b) more frequently than once every three years.(8) For further provision about reports under this section, see section 149.(9) In this section “age assurance” means age verification or age estimation.”Member’s explanatory statement
This new Clause requires OFCOM to produce and publish a report about the use of age assurance by providers of regulated services.
“OFCOM’s report about use of app stores by children
(1) OFCOM must produce a report about the use of app stores by children.(2) In particular, the report must—(a) assess what role app stores play in children encountering content that is harmful to children, search content that is harmful to children or regulated provider pornographic content by means of regulated apps which the app stores make available,(b) assess the extent to which age assurance is currently used by providers of app stores, and how effective it is, and(c) explore whether children’s online safety would be better protected by the greater use of age assurance or particular kinds of age assurance by such providers, or by other measures.(3) OFCOM must publish the report during the period beginning two years, and ending three years, after the day on which sections 11 and 25 come into force (or if those sections come into force on different days, the later of those days).(4) For further provision about the report under this section, see section 149.(5) In this section—“app” includes an app for use on any kind of device, and “app store” is to be read accordingly;“content that is harmful to children” has the same meaning as in Part 3 (see section 54);“regulated app” means an app for a regulated service;“regulated provider pornographic content” has the same meaning as in Part 5 (see section 70);“search content” has the same meaning as in Part 3 (see section 51).(6) In this section references to children are to children in the United Kingdom.”Member’s explanatory statement
This amendment requires OFCOM to produce a report about the use of app stores by children, including consideration of whether children would be better protected by greater use of age assurance.
Member’s explanatory statement
This amendment provides that the report that OFCOM must publish under Clause 148 (report about researchers’ access to information) must be published within 18 months of Clause 148 coming into force (rather than two years).
Member’s explanatory statement
This amendment provides that OFCOM must (rather than may) produce guidance about matters dealt with by the report published under Clause 148.
“OFCOM’s report in connection with investigation into a death
(1) Subsection (2) applies if OFCOM receive—(a) a notice from a senior coroner under paragraph 1(2) of Schedule 5 to the Coroners and Justice Act 2009 in connection with an investigation into the death of a person;(b) a request for information in connection with the investigation of a procurator fiscal into, or an inquiry held or to be held in relation to, the death of a person;(c) a notice from a coroner under section 17A(2) of the Coroners Act (Northern Ireland) 1959 (c. 15 (N.I.)) in connection with—(i) an investigation to determine whether an inquest into the death of a person is necessary, or(ii) an inquest in relation to the death of a person.(2) OFCOM may produce a report for use by the coroner or procurator fiscal, dealing with any matters that they consider may be relevant.(3) In subsection (1)(b) “inquiry” means an inquiry held, or to be held, under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (asp 2).” Member’s explanatory statement
This amendment makes it clear that OFCOM may produce a report in connection with a person’s death, if the coroner gives OFCOM a notice or, in Scotland, the procurator fiscal requests information, for that purpose.
“(aa) a report under section (OFCOM’s reports about use of age assurance) (report about use of age assurance),”Member’s explanatory statement
This amendment is consequential on the new Clause to be inserted after Clause 145 in my name. It ensures that the usual confidentiality provisions apply to matters contained in OFCOM’s report about the use of age assurance.
“CHAPTER 8MEDIA LITERACYMedia literacy
(1) Section 11 of the Communications Act is amended in accordance with subsections (2) to (5).(2) Before subsection (1) insert—“(A1) In this section—(a) subsection (1) imposes duties on OFCOM which apply in relation to material published by means of the electronic media (including by means of regulated services), and(b) subsections (1A) to (1E) expand on those duties, and impose further duties on OFCOM, in relation to regulated services only.”(3) After subsection (1) insert— “(1A) OFCOM must take such steps, and enter into such arrangements, as they consider most likely to be effective in heightening the public’s awareness and understanding of ways in which they can protect themselves and others when using regulated services, in particular by helping them to—(a) understand the nature and impact of harmful content and the harmful ways in which regulated services may be used, especially content and activity disproportionately affecting particular groups, including women and girls;(b) reduce their and others’ exposure to harmful content and to the use of regulated services in harmful ways, especially content and activity disproportionately affecting particular groups, including women and girls;(c) use or apply—(i) features included in a regulated service, including features mentioned in section 12(2) of the Online Safety Act 2023, and(ii) tools or apps, including tools such as browser extensions,so as to mitigate the harms mentioned in paragraph (b);(d) establish the reliability, accuracy and authenticity of content;(e) understand the nature and impact of disinformation and misinformation, and reduce their and others’ exposure to it;(f) understand how their personal information may be protected.(1B) OFCOM must take such steps, and enter into such arrangements, as they consider most likely to encourage the development and use of technologies and systems for supporting users of regulated services to protect themselves and others as mentioned in paragraph (a), (b), (c), (d) or (e) of subsection (1A), including technologies and systems which—(a) provide further context to users about content they encounter;(b) help users to identify, and provide further context about, content of democratic importance present on regulated user-to-user services;(c) signpost users to resources, tools or information raising awareness about how to use regulated services so as to mitigate the harms mentioned in subsection (1A)(b).(1C) OFCOM’s duty under subsection (1A) is to be performed in the following ways (among others)—(a) pursuing activities and initiatives,(b) commissioning others to pursue activities and initiatives,(c) taking steps designed to encourage others to pursue activities and initiatives, and(d) making arrangements for the carrying out of research (see section 14(6)(a)).(1D) OFCOM must draw up, and from time to time review and revise, a statement recommending ways in which others, including providers of regulated services, might develop, pursue and evaluate activities or initiatives relevant to media literacy in relation to regulated services.(1E) OFCOM must publish the statement and any revised statement in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.”(4) After subsection (2) insert— “(3) In this section and in section 11A,“regulated service” means—(a) a regulated user-to-user service, or(b) a regulated search service.“Regulated user-to-user service” and “regulated search service” have the same meaning as in the Online Safety Act 2023 (see section 3 of that Act).(4) In this section—(a) “content”, in relation to regulated services, means regulated user-generated content, search content or fraudulent advertisements;(b) the following terms have the same meaning as in the Online Safety Act 2023—“content of democratic importance” (see section 13 of that Act);“fraudulent advertisement” (see sections 33 and 34 of that Act);“harm” (see section 209 of that Act) (and “harmful” is to be interpreted consistently with that section);“provider”(see section 202 of that Act);“regulated user-generated content” (see section 49 of that Act);“search content” (see section 51 of that Act).”(5) In the heading, for “Duty” substitute “Duties”.(6) In section 14 of the Communications Act (consumer research), in subsection (6)(a), after “11(1)” insert “, (1A) and (1B)”.”Member’s explanatory statement
This amendment inserts provisions into section 11 of the Communications Act 2003 (OFCOM’s duties to promote media literacy). The new provisions expand on the existing duties so far as they relate to regulated user-to-user and search services, and impose new duties on OFCOM aimed at enhancing users’ media literacy.
“Media literacy strategy and media literacy statement
After section 11 of the Communications Act insert—“11A Regulated services: media literacy strategy and media literacy statement(1) OFCOM must prepare and publish a media literacy strategy within the period of one year beginning with the day on which the Online Safety Act 2023 is passed.(2) A media literacy strategy is a plan setting out how OFCOM propose to exercise their functions under section 11 in the period covered by the plan, which must be not more than three years.(3) In particular, a media literacy strategy must state OFCOM’s objectives and priorities for the period it covers.(4) Before the end of the period covered by a media literacy strategy, OFCOM must prepare and publish a media literacy strategy for a further period, ensuring that each successive strategy covers a period beginning immediately after the end of the last one. (5) In preparing or revising a media literacy strategy, OFCOM must consult such persons as they consider appropriate.(6) OFCOM’s annual report must contain a media literacy statement.(7) A media literacy statement is a statement by OFCOM—(a) summarising what they have done in the financial year to which the report relates in the exercise of their functions under section 11, and(b) assessing what progress has been made towards achieving the objectives and priorities set out in their media literacy strategy in that year.(8) A media literacy statement must include a summary and an evaluation of the activities and initiatives pursued or commissioned by OFCOM in the exercise of their functions under section 11 in the financial year to which the report relates.(9) The first annual report that is required to contain a media literacy statement is the report for the financial year during which OFCOM’s first media literacy strategy is published, and that first statement is to relate to the period from publication day until the end of that financial year.(10) But if OFCOM’s first media literacy strategy is published during the second half of a financial year—(a) the first annual report that is required to contain a media literacy statement is the report for the next financial year, and(b) that first statement is to relate to the period from publication day until the end of that financial year.(11) References in this section to OFCOM’s functions under section 11 are to those functions so far as they relate to regulated services.(12) In this section—“annual report” means OFCOM’s annual report under paragraph 12 of the Schedule to the Office of Communications Act 2002;“financial year” means a year ending with 31 March.””Member’s explanatory statement
This amendment requires OFCOM to produce a media literacy strategy every three years (or more frequently), and to include, in their annual report, a statement summarising and evaluating their media literacy activities, so far as they relate to regulated services, during the year.
“(15) For the purposes of subsections (8) and (9), a person who makes available on a service an automated tool or algorithm by means of which content is generated is to be regarded as having control over content so generated.”Member’s explanatory statement
This amendment is about who counts as the provider of a service (other than a user-to-user or search service) that hosts provider pornographic content for the purposes of the Bill. The amendment makes it clear that a person who controls a generative tool on the service, such as a generative AI bot, is regarded as controlling the content generated by that tool.
““Age verification” and “age estimation”
(1) This section applies for the purposes of this Act.(2) “Age verification” means any measure designed to verify the exact age of users of a regulated service.(3) “Age estimation” means any measure designed to estimate the age or age- range of users of a regulated service.(4) A measure which requires a user to self-declare their age (without more) is not to be regarded as age verification or age estimation.”Member’s explanatory statement
This new Clause defines age verification and age estimation, and makes it clear that mere self-declaration of age does not count as either.
Member’s explanatory statement
This amendment is made to ensure consistency of language in the Bill when referring to age verification and age estimation.
Baroness Merron (Lab)
My Lords, as we have heard, the noble Baroness, Lady Harding, made a very clear case in support of these amendments, tabled in the name of the noble Baroness, Lady Kidron, and supported by noble Lords from across the House. The noble Baroness, Lady Morgan, gave wise counsel to the Minister, as did the noble Lord, Lord Clement-Jones, that it is worth stepping back and seeing where we are in order to ensure that the Bill is in the right place. I urge the Minister to find the time and the energy that I know he has—he certainly has the energy and I am sure he will match it with the time—to speak to noble Lords over the coming Recess to agree a way to incorporate systems and functionality into the Bill, for all the reasons we have heard.
On Monday, my noble friend Lord Knight spoke of the need for a review about loot boxes and video games. When we checked Hansard, we saw the Minister had promised that such a review would be offered in the coming months. In an unusual turn of events, the Minister exceeded the timescale. We did not have to hear the words “shortly”, “in the summer” or “spring” or anything like that, because it was announced the very next day that the department would keep legislative options under review.
I make that point simply to thank the Minister for the immediate response to my noble friend Lord Knight. But, if we are to have such a review, does this not point very much to the fact that functionality and systems should be included in the Bill? The Minister has a very nice hook to hang this on and I hope that he will do so.
Lord Parkinson of Whitley Bay (Con)
My Lords, this is not just a content Bill. The Government have always been clear that the way in which a service is designed and operated, including its features and functionalities, can have a significant impact on the risk of harm to a user. That is why the Bill already explicitly requires providers to ensure their services are safe by design and to address the risks that arise from features and functionalities.
The Government have recognised the concerns which noble Lords have voiced throughout our scrutiny of the Bill, and those which predated the scrutiny of it. We have tabled a number of amendments to make it even more explicit that these elements are covered by the Bill. We have tabled the new introductory Clause 1, which makes it clear that duties on providers are aimed at ensuring that services are safe by design. It also highlights that obligations on services extend to the design and operation of the service. These obligations ensure that the consideration of risks associated with the business model of a service is a fundamental aspect of the Bill.
My noble friend Baroness Harding of Winscombe worried that we had made the Bill worse by adding this. The new clause was a collaborative one, which we have inserted while the Bill has been before your Lordships’ House. Let me reassure her and other noble Lords as we conclude Report that we have not made it worse by so doing. The Bill will require services to take a safety by design approach to the design and operation of their services. We have always been clear that this will be crucial to compliance with the legislation. The new introductory Clause 1 makes this explicit as an overarching objective of the Bill. The introductory clause does not introduce any new concepts; it is an accurate summary of the key provisions and objectives of the Bill and, to that end, the framework and introductory statement are entirely compatible.
We also tabled amendments—which we debated last Monday—to Clause 209. These make it clear that functionalities contribute to the risk of harm to users, and that combinations of functionality may cumulatively drive up the level of risk. Amendment 281BA would amend the meaning of “functionality” within the Bill, so that it includes any system or process which affects users. This presents a number of concerns. First, such a broad interpretation would mean that any service in scope of the Bill would need to consider the risk of any feature or functionality, including ones that are positive for users’ online experience. That could include, for example, processes designed for optimising the interface depending on the user’s device and language settings. The amendment would increase the burden on service providers under the existing illegal content and child safety duties and would dilute their focus on genuinely risky functionality and design.
Second, by duplicating the reference to systems, processes and algorithms elsewhere in the Bill, it implies that the existing references in the Bill to the design of a service or to algorithms must be intended to capture matters not covered by the proposed new definition of “functionality”. This would suggest that references to systems and processes, and algorithms, mentioned elsewhere in the Bill, cover only systems, processes or algorithms which do not have an impact on users. That risks undermining the effectiveness of the existing duties and the protections for users, including children.
Amendment 268A introduces a further interpretation of features and functionality in the general interpretation clause. This duplicates the overarching interpretation of functionality in Clause 208 and, in so doing, introduces legal and regulatory uncertainty, which in turn risks weakening the existing duties. I hope that sets out for my noble friend Lady Harding and others our legal concerns here.
Amendment 281FA seeks to add to the interpretation of harm in Clause 209 by clarifying the scenarios in which harm may arise, specifically from services, systems and processes. This has a number of concerning effects. First, it states that harm can arise solely from a system and process, but a design choice does not in isolation harm a user. For example, the decision to use algorithms, or even the algorithm itself, is not what causes harm to a user—it is the fact that harmful content may be pushed to a user, or content pushed in such a manner that is harmful, for example repeatedly and in volume. That is already addressed comprehensively in the Bill, including in the child safety risk assessment duties.
Secondly, noble Lords should be aware that the drafting of the amendment has the effect of saying that harm can arise from proposed new paragraphs (a) (b) and (c)—
Baroness Harding of Winscombe (Con)
Can I just double-check what my noble friend has just said? I was lulled into a possibly false sense of security until we got to the point where he said “harmful” and then the dreaded word “content”. Does he accept that there can be harm without there needing to be content?
Lord Parkinson of Whitley Bay (Con)
This is the philosophical question on which we still disagree. Features and functionality can be harmful but, to manifest that harm, there must be some content which they are functionally, or through their feature, presenting to the user. We therefore keep talking about content, even when we are talking about features and functionality. A feature on its own which has no content is not what the noble Baroness, Lady Kidron, my noble friend Lady Harding and others are envisaging, but to follow the logic of the point they are making, it requires some content for the feature or functionality to cause its harm.
Lord Parkinson of Whitley Bay (Con)
Yes, even if the content is not harmful. We keep saying “content” because it is the way the content is disseminated, as the Bill sets out, but the features and functionalities can increase the risks of harm as well. We have addressed this through looking at the cumulative effects and in other ways.
Lord Allan of Hallam (LD)
This is the key question. For example, let us take a feature that is pushing something at you constantly; if it was pushing poison at you then it would obviously be harmful, but if it was pushing marshmallows then they would be singularly not harmful but cumulatively harmful. Is the Minister saying that the second scenario is still a problem and that the surfeit of marshmallows is problematic and will still be captured, even if each individual marshmallow is not harmful?
Lord Parkinson of Whitley Bay (Con)
Yes, because the cumulative harm—the accumulation of marshmallows in that example—has been addressed.
Noble Lords should also be aware that the drafting of Amendment 281FA has the effect of saying that harm can arise from proposed new paragraphs (a), (b) and (c)—for example, from the
“age or characteristics of the likely user group”.
In effect, being a child or possessing a particular characteristic may be harmful. This may not be the intention of the noble Baronesses who tabled the amendment, but it highlights the important distinction between something being a risk factor that influences the risk of harm occurring and something being harmful.
The Government are clear that these aspects should properly be treated as risk factors. Other parts of the Bill already make it clear that the ways in which a service is designed and used may impact on the risk of harm suffered by users. I point again to paragraphs (f) to (h) of Clause 10(6); paragraph (e) talks about the level of risk of functionalities of the service, paragraph (f) talks about the different ways in which the service is used, and so on.
We have addressed these points in the Bill, though clearly not to the satisfaction of my noble friend, the noble Baroness, Lady Kidron, and others. As we conclude Report, I recognise that we have not yet convinced everyone that our approach achieves what we all seek, though I am grateful for my noble friend’s recognition that we all share the same aim in this endeavour. As I explained to the noble Baroness, Lady Kidron, on her Amendment 35, I was asking her not to press it because, if she did, the matter would have been dealt with on Report and we would not be able to return to it at Third Reading.
As the Bill heads towards another place with this philosophical disagreement still bubbling away, I am very happy to commit to continuing to talk to your Lordships—particularly when the Bill is in another place, so that noble Lords can follow the debates there. I am conscious that my right honourable friend Michelle Donelan, who has had a busy maternity leave and has spoken to a number of your Lordships while on leave, returns tomorrow in preparation for the Bill heading to her House. I am sure she will be very happy to speak even more when she is back fully at work, but we will both be happy to continue to do so.
I think it is appropriate, in some ways, that we end on this issue, which remains an area of difference. With that promise to continue these discussions as the Bill moves towards another place, I hope that my noble friend will be content not to press these amendments, recognising particularly that the noble Baroness, Lady Kidron, has already inserted this thinking into the Bill for consideration in the other House.
Member’s explanatory statement
This amendment is consequential on the next amendment to this Clause in my name.
Member’s explanatory statement
This amendment is consequential on the amendment in my name inserting new subsection (3A) into this Clause.
Member’s explanatory statement
This amendment provides that the term “online safety functions” includes OFCOM’s functions under section 11A of the Communications Act 2003 (inserted by the new Clause proposed to be inserted after Clause 149 in my name) regarding OFCOM’s media literacy strategy (as well as OFCOM’s functions under section 11 of that Act).
Member’s explanatory statement
This amendment removes a definition of “age assurance” from Clause 211 as that term is now defined separately where used.
Member’s explanatory statement
This amendment revises the definition of “information notice” so that it includes a notice under the new Clause proposed in my name concerning OFCOM’s power to obtain information in connection with an investigation into the death of a child.
Member’s explanatory statement
This amendment removes the entry for “age assurance” in the index of defined terms as that term is now defined separately where used.
Member’s explanatory statement
This amendment updates the entry for pornographic content consequential on the amendment to Clause 211 which inserts a definition of that term into that Clause which applies for the purposes of the whole Bill.
“(aa) section (Sharing or threatening to share intimate photograph or film);(ab) section 171(2);(ac) section (Repeals in connection with offences under section (Sharing or threatening to share intimate photograph or film));”Member’s explanatory statement
This amendment revises the extent Clause so that the provisions mentioned extend to England and Wales only.
Member’s explanatory statement
Clause 215(1) specifies which provisions of the Bill come into force on Royal Assent. This amendment omits subsection (1), but only because it is being moved further down in the section and replaced (see the amendment in my name below).
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsMonday 17th July 2023
(1 year, 1 month ago)
Lords ChamberRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 151-V Fifth marshalled list for Report - (17 Jul 2023)
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, let me add to this miscellany by speaking to the government amendments that stand in my name as part of this group. The first is Amendment 288A, which we mentioned on the first group of amendments on Report because it relates to the new introductory clause, Clause 1, and responds to the points raised by the noble Lord, Lord Stevenson of Balmacara. I am very happy to say again that the Government recognise that people with multiple and combined characteristics suffer disproportionately online and are often at greater risk of harm. This amendment therefore adds a provision in the new interpretation clause, Clause 1, to put beyond doubt that all the references to people with “a certain characteristic” throughout the Bill include people with a combination of characteristics. We had a good debate about the Interpretation Act 1978, which sets that out, but we are happy to set it out clearly here.
In his Amendment 186A, my noble friend Lord Moylan seeks to clarify a broader issue relating to consumer rights and online platforms. He got some general support—certainly gratitude—for raising this issue, although there was a bit of a Committee-style airing of it and a mixture of views on whether this is the right way or the right place. The amendment seeks to make it clear that certain protections for consumers in the Consumer Rights Act 2015 apply when people use online services and do not pay for them but rather give up their personal data in exchange. The Government are aware that the application of the law in that area is not always clear in relation to free digital services and, like many noble Lords, express our gratitude to my noble friend for highlighting the issue through his amendment.
We do not think that the Bill is the right vehicle for attempting to provide clarification on this point, however. We share some of the cautions that the noble Lord, Lord Allan of Hallam, raised and agree with my noble friend Lady Harding of Winscombe that this is part of a broader question about consumer rights online beyond the services with which the Bill is principally concerned. It could be preferable that the principle that my noble friend Lord Moylan seeks to establish through his amendment should apply more widely than merely to category 1 services regulated under the Bill. I assure him that the Bill will create a number of duties on providers which will benefit users and clarify that they have existing rights of action in the courts. We discussed these new protections in depth in Committee and earlier on Report. He drew attention to Clause 65(1), which puts a requirement on all services, not just category 1 services, to include clear and accessible provisions in their terms of service informing users about their right to bring a claim for breach of contract. Therefore, while we are grateful, we agree with noble Lords who suggested that this is a debate for another day and another Bill.
Amendment 191A from the noble Baroness, Lady Kidron, would require Ofcom to issue guidance for coroners and procurators fiscal to aid them in submitting requests to Ofcom to exercise its power to obtain information from providers about the use of a service by a deceased child. While I am sympathetic to her intention, I do not think that her amendment is the right answer. It would be inappropriate for an agency of the Executive to issue guidance to a branch of the judiciary. As I explained in Committee, it is for the Chief Coroner to provide detailed guidance to coroners. This is written to assist coroners with the law and their legal duties and to provide commentary and advice on policy and practice.
The amendment tabled by the noble Baroness cuts across the role of the Chief Coroner and risks compromising the judicial independence of the coroner, as set out in the Constitutional Reform Act 2005. As she is aware, the Chief Coroner has agreed to consider issuing guidance to coroners on social media and to consider the issues covered in the Bill. He has also agreed to explore whether coroners would benefit from additional training, with the offer of consultation with experts including Ofcom and the Information Commissioner’s Office. I suggest that the better approach would be for Ofcom and the Information Commissioner’s Office to support the Chief Coroner in his consideration of these issues where he would find that helpful.
I agree with the noble Lord, Lord Allan, that coroners must have access to online safety expertise given the technical and fast-moving nature of this sector. As we have discussed previously, Amendment 273 gives Ofcom a power to produce a report dealing with matters relevant to an investigation or inquest following a request from a coroner which will provide that expertise. I hope that this reassures the noble Baroness.
Baroness Kidron (CB)
I understand the report on a specific death, which is very welcome and part of the regime as we all see it. The very long list of things that the coroner may not know that they do not know, as I set out in the amendment, is the issue which I and other noble Lords are concerned about. If the Government could find a way to make that possible, I would be very grateful.
Lord Parkinson of Whitley Bay (Con)
We are keen to ensure that coroners have access to the information and expertise that they need, while respecting the independence of the judicial process to decide what they do not know and would like to know more about and the role of the Chief Coroner there. It is a point that I have discussed a lot with the noble Baroness and with my noble friend Lady Newlove in her former role as Victims’ Commissioner. I am very happy to continue doing so because it is important that there is access to that.
The noble Lord, Lord Stevenson, spoke to the amendments tabled by the noble Baroness, Lady Merron, about supposedly gendered language in relation to Clauses 141 and 157. As I made clear in Committee, I appreciate the intention—as does Lady Deben—of making clear that a person of either sex can perform the role of chairman, just as they can perform the role of ombudsman. We have discussed in Committee the semantic point there. The Government have used “chairman” here to be consistent with terminology in the Office of Communications Act 2002. I appreciate that this predates the Written Ministerial Statement which the noble Lord cited, but that itself made clear that the Government at the time recognised that in practice, parliamentary counsel would need to adopt a flexible approach to this change—for example, in at least some of the cases where existing legislation originally drafted in the former style is being amended.
The noble Lord may be aware of a further Written Ministerial Statement, made on 23 May last year, following our debates on gendered language on another Bill, when the then Lord President of the Council and Leader of the House of Commons said that the Office of the Parliamentary Counsel would update its drafting guidance in light of that. That guidance is still forthcoming. However, importantly, the term here will have no bearing on Ofcom’s decision-making on who would chair the advisory committees. It must establish that this could indeed be a person of either sex.
Amendment 253 seeks to enable co-operation, particularly via information-sharing, between Ofcom and other regulators within the UK. I reassure noble Lords that Section 393 of the Communications Act 2003 already includes provisions for sharing information between Ofcom and other regulators in the UK.
As has been noted, Ofcom already co-operates effectively with other domestic regulators. That has been strengthened by the establishment of the Digital Regulation Co-operation Forum. By promoting greater coherence, the forum helps to resolve potential tensions, offering clarity for people and the industry. It ensures collaborative work across areas of common interest to address complex problems. Its outputs have already delivered real and wide-ranging impacts, including landmark policy statements clarifying the interactions between digital regulatory regimes, research into cross-cutting issues, and horizon-scanning activities on new regulatory challenges. We will continue to assess how best to support collaboration between digital regulators and to ensure that their approaches are joined up. We therefore do not think that Amendment 253 is necessary.
Lord Clement-Jones (LD)
My Lords, the Minister has not stated that there is a duty to collaborate. Is he saying that that is, in fact, the case in practice?
Lord Parkinson of Whitley Bay (Con)
Yes, there is a duty, and the law should be followed. I am not sure whether the noble Lord is suggesting that it is not—
Lord Parkinson of Whitley Bay (Con)
I am not sure that I follow the noble Lord’s question, but perhaps—
Lord Clement-Jones (LD)
My Lords, the Minister is saying that, in practice, there is a kind of collaboration between regulators and that there is a power under the Communications Act, but is he saying that there is any kind of duty on regulators to collaborate?
Lord Parkinson of Whitley Bay (Con)
If I may, I will write to the noble Lord setting that out; he has lost me with his question. We believe, as I think he said, that the forum has added to the collaboration in this important area.
The noble Baroness, Lady Finlay, raised important questions about avatars and virtual characters. The Bill broadly defines “content” as
“anything communicated by means of an internet service”,
meaning that it already captures the various ways through which users may encounter content. In the metaverse, this could therefore include things such as avatars or characters created by users. As part of the user-to-user services’ risk assessments, providers will be required to consider more than the risk in relation to user-generated content, including aspects such as how the design and operation of their services, including functionality and how the service is used, might increase the risk of harm to children and the presence of illegal content. A user-to-user service will need to consider any feature which enables interaction of any description between users of the service when carrying out its risk assessments.
The Bill is focused on user-to-user and search services, as there is significant evidence to support the case for regulation based on the risk of harm to users and the current lack of regulatory and other accountability in this area. Hosting, sharing and the discovery of user-generated content and activity give rise to a range of online harms, which is why we have focused on those services. The Bill does not regulate content published by user-to-user service providers themselves; instead, providers are already liable for the content that they publish on their services themselves, and the criminal law is the most appropriate mechanism for dealing with services which publish illegal provider content.
The noble Baroness’s Amendment 275A seeks to require Ofcom to produce a wide-ranging report of behaviour facilitated by emerging technologies. As we discussed in Committee, the Government of course agree that Ofcom needs continually to assess future risks and the capacity of emerging technologies to cause harm. That is why the Bill already contains provisions which allow it to carry out broad horizon scanning, such as its extensive powers to gather information, to commission skilled persons’ reports and to require providers to produce transparency reports. Ofcom has already indicated that it plans to research emerging technologies, and the Bill will require it to update its risk assessments, risk profiles and codes of practice with the outcomes of this research where relevant.
As we touched on in Committee, Clause 56 requires regular reviews by Ofcom into the incidence of content that is harmful to children, and whether there should be changes to regulations setting out the kinds of content that are harmful to children. In addition, Clause 143 mandates that Ofcom should investigate users’ experience of regulated services, which are likely to cover user interactions in virtual spaces, such as the metaverse and those involving content generated by artificial intelligence.
Baroness Finlay of Llandaff (CB)
I am most grateful to the Minister; perhaps I could just check something he said. There was a great deal of detail and I was trying to capture it. On the question of harms to children, we all understand that the harms to children are viewed more extensively than harms to others, but I wondered: what counts as unregulated services? The Minister was talking about regulated services. What happens if there is machine-generated content which is not generated by any user but by some random codes that are developed and then randomly incite problematic behaviours?
Lord Parkinson of Whitley Bay (Con)
I am happy to provide further detail in writing and to reiterate the points I have made as it is rather technical. Content that is published by providers of user-to-user services themselves is not regulated by the Bill because providers are liable for the content they publish on the services themselves. Of course, that does not apply to pornography, which we know poses a particular risk to children online and is regulated through Part 5 of the Bill. I will set out in writing, I hope more clearly, for the noble Baroness what is in scope to reassure her about the way the Bill addresses the harms that she has rightly raised.
Lord Moylan (Con)
My Lords, this has indeed been a wide-ranging and miscellaneous debate. I hope that since we are considering the Bill on Report noble Lords will forgive me if I do not endeavour to summarise all the different speeches and confine myself to one or two points.
The first is to thank the noble Baroness, Lady Kidron, for her support for my amendment but also to say that having heard her argument in favour of her Amendment 191A, I think the difference between us is entirely semantic. Had she worded it so as to say that Ofcom should be under a duty to offer advice to the Chief Coroner, as opposed to guidance to coroners, I would have been very much happier with it. Guidance issued under statute has to carry very considerable weight and, as my noble friend the Minister said, there is a real danger in that case of an arm of the Executive, if you like, or a creature of Parliament—however one wants to regard Ofcom—interfering in the independence of the judiciary. Had she said “advice to the Chief Coroner and whoever is the appropriate officer in Scotland”, that would have been something I could have given wholehearted support to. I hope she will forgive me for raising that quibble at the outset, but I think it is a quibble rather than a substantial disagreement.
On my own amendment, I simply say that I am grateful to my noble friend for the brevity and economy with which he disposed of it. He was of course assisted in that by the remarks and arguments made by many other noble Lords in the House as they expressed their support for it in principle.
I think there is a degree of confusion about what the Bill is doing. There seemed to be a sense that somehow the amendment was giving individuals the right to bring actions in the courts against providers, but of course that already happens because that right exists and is enshrined in Article 65. All the amendment would do is give some balance so that consumers actually had some protections in what is normally, in essence, an unequal contest, which is trying to ensure that a large company enforces the terms and contracts that it has written.
In particular, my amendment would give, as I think noble Lords know, the right to demand repeat performance—that is, in essence, the right to put things right, not monetary compensation—and it would frustrate any attempts by providers, in drafting their own terms and conditions, to limit their own liability. That is of course what they seek to do but the Consumer Rights Act frustrates them in their ability to do so.
We will say no more about that for now. With that, I beg leave to withdraw my amendment.
Member’s explanatory statement
This amendment makes a change to a provision about what the terms of service of a Category 1 service say. The effect of the change is to cover a wider range of ways in which a term of service might indicate that a certain kind of content is not allowed on the service.
Lord Parkinson of Whitley Bay (Con)
My Lords, transparency and accountability are at the heart of the regulatory framework that the Bill seeks to establish. It is vital that Ofcom has the powers it needs to require companies to publish online safety information and to scrutinise their systems and processes, particularly their algorithms. The Government agree about the importance of improving data sharing with independent researchers while recognising the nascent evidence base and the complexities of this issue, which we explored in Committee. We are pleased to be bringing forward a number of amendments to strengthen platforms’ transparency, which confer on Ofcom new powers to assess how providers’ algorithms work, which accelerate the development of the evidence base regarding researchers’ access to information and which require Ofcom to produce guidance on this issue.
Amendment 187 in my name makes changes to Clause 65 on category 1 providers’ duties to create clear and accessible terms of service and apply them consistently and transparently. The amendment tightens the clause to ensure that all the providers’ terms through which they might indicate that a certain kind of content is not allowed on its service are captured by these duties.
Amendment 252G is a drafting change, removing a redundant paragraph from the Bill in relation to exceptions to the legislative definition of an enforceable requirement in Schedule 12.
In relation to transparency, government Amendments 195, 196, 198 and 199 expand the types of information that Ofcom can require category 1, 2A and 2B providers to publish in their transparency reports. With thanks to the noble Lord, Lord Stevenson of Balmacara, for his engagement on this issue, we are pleased to table these amendments, which will allow Ofcom to require providers to publish information relating to the formulation, development and scope of user-to-user service providers’ terms of service and search service providers’ public statements of policies and procedures. This is in addition to the existing transparency provision regarding their application.
Amendments 196 and 199 would enable Ofcom to require providers to publish more information in relation to algorithms, specifically information about the design and operation of algorithms that affect the display, promotion, restriction, discovery or recommendation of content subject to the duties in the Bill. These changes will enable greater public scrutiny of providers’ terms of service and their algorithms, providing valuable information to users about the platforms that they are using.
As well as publicly holding platforms to account, the regulator must be able to get under the bonnet and scrutinise the algorithms’ functionalities and the other systems and processes that they use. Empirical tests are a standard method for understanding the performance of an algorithmic system. They involve taking a test data set, running it through an algorithmic system and observing the output. These tests may be relevant for assessing the efficacy and wider impacts of content moderation technology, age-verification systems and recommender systems.
Government Amendments 247A, 250A, 252A, 252B, 252C, 252D, 252E and 252F will ensure that Ofcom has the powers to enable it to direct and observe such tests remotely. This will significantly bolster Ofcom’s ability to assess how a provider’s algorithms work, and therefore to assess its compliance with the duties in the Bill. I understand that certain technology companies have voiced some concerns about these powers, but I reassure your Lordships that they are necessary and proportionate.
The powers will be subject to a number of safeguards. First, they are limited to viewing information. Ofcom will be unable to remotely access or interfere with the service for any other purpose when exercising the power. These tests would be performed offline, meaning that they would not affect the services’ provision or the experience of users. Assessing systems, processes, features and functionalities is the focus of the powers. As such, individual user data and content are unlikely to be the focus of any remote access to view information.
Additionally, the power can be used only where it is proportionate to use in the exercise of Ofcom’s functions—for example, when investigating whether a regulated service has complied with relevant safety duties. A provider would have a right to bring a legal challenge against Ofcom if it considered that a particular exercise of the power was unlawful. Furthermore, Ofcom will be under a legal obligation to ensure that the information gathered from services is protected from disclosure, unless clearly defined exemptions apply.
The Bill contains no restriction on services making the existence and detail of the information notice public. Should a regulated service wish to challenge an information notice served to it by Ofcom, it would be able to do so through judicial review. In addition, the amendments create no restrictions on the use of this power being viewable to members of the public through a request, such as those under the Freedom of Information Act—noting that under Section 393 of the Communications Act, Ofcom will not be able to disclose information it has obtained through its exercise of these powers without the provider’s consent, unless permitted for specific, defined purposes. These powers are necessary and proportionate and will that ensure Ofcom has the tools to understand features and functionalities and the risks associated with them, and therefore the tools to assess companies’ compliance with the Bill.
Finally, I turn to researchers’ access to data. We recognise the valuable work of researchers in improving our collective understanding of the issues we have debated throughout our scrutiny of the Bill. However, we are also aware that we need to develop the evidence base to ensure that any sharing of sensitive information between companies and researchers can be done safely and securely. To this end, we are pleased to table government Amendments 272B, 272C and 272D.
Government Amendment 272B would require Ofcom to publish its report into researcher access to information within 18 months, rather than two years. This report will provide the evidence base for government Amendments 272C and 272D, which would require Ofcom to publish guidance on this issue. This will provide valuable, evidence-based guidance on how to improve access for researchers safely and securely.
That said, we understand the calls for further action in this area. The Government will explore this issue further and report back to your Lordships’ House on whether further measures to support researchers’ access to data are required—and if so, whether they could be implemented through other legislation, such as the Data Protection and Digital Information Bill. I beg to move.
Lord Allan of Hallam (LD)
My Lords, Amendment 247B in my name was triggered by government Amendment 247A, which the Minister just introduced. I want to explain it, because the government amendment is quite late—it has arrived on Report—so we need to look in some detail at what the Government have proposed. The phrasing that has caused so much concern, which the Minister has acknowledged, is that Ofcom will be able to
“remotely access the service provided by the person”.
It is those words—“remotely access”—which are trigger words for anyone who lived through the Snowden disclosures, where everyone was so concerned about remote access by government agencies to precisely the same services we are talking about today: social media services.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful to noble Lords for their contributions in this group. On the point made by the noble Lord, Lord Knight of Weymouth, on why we are bringing in some of these powers now, I say that the power to direct and observe algorithms was previously implicit within Ofcom’s information powers and, where a provider has UK premises, under powers of entry, inspection and audit under Schedule 12. However, the Digital Markets, Competition and Consumers Bill, which is set to confer similar powers on the Competition and Markets Authority and its digital markets unit, makes these powers explicit. We wanted to ensure that there was no ambiguity over whether Ofcom had equivalent powers in the light of that. Furthermore, the changes we are making ensure that Ofcom can direct and observe algorithmic assessments even if a provider does not have relevant premises or equipment in the UK.
I am grateful to the noble Lord, Lord Allan of Hallam, for inviting me to re-emphasise points and allay the concerns that have been triggered, as his noble friend Lord Clement-Jones put it. I am happy to set out again a bit of what I said in opening this debate. The powers will be subject to a number of safeguards. First, they are limited to “viewing information”. They can be used only where they are proportionate in the exercise of Ofcom’s functions, and a provider would have the right to bring a legal challenge against Ofcom if it considered that a particular exercise of the power was done unlawfully. Furthermore, Ofcom will be under a legal obligation to ensure that the information gathered from services is protected from disclosure, unless clearly defined exemptions apply.
These are not secret powers, as the noble Lord rightly noted. The Bill contains no restriction on services making the existence and detail of the information notice public. If a regulated service wished to challenge an information notice served to it by Ofcom, it would be able to do so through judicial review. I also mentioned the recourse that people have through existing legislation, such as the Freedom of Information Act, to give them safeguards, noting that, under Section 393 of the Communications Act, Ofcom will not be able to disclose information that it has obtained through its exercise of these powers without the provider’s consent unless that is permitted for specific, defined purposes.
The noble Lord’s Amendment 247B seeks to place further safeguards on Ofcom’s use of its new power to access providers’ systems remotely to observe tests. While I largely agree with the intention behind it, there are already a number of safeguards in place for the use of that power, including in relation to data protection, legally privileged material and the disclosure of information, as I have outlined. Ofcom will not be able to gain remote access simply for exploratory or fishing purposes, and indeed Ofcom expects to have conversations with services about how to provide the information requested.
Furthermore, before exercising the power, Ofcom will be required to issue an information notice specifying the information to be provided, setting out the parameters of access and why Ofcom requires the information, among other things. Following the receipt of an information notice, a notice requiring an inspection or an audit notice, if a company has identified that there is an obvious security risk in Ofcom exercising the power as set out in the notice, it may not be proportionate to do so. As set out in Ofcom’s duties, Ofcom must have regard to the principles under which regulatory activities should be proportionate and targeted only at cases where action is needed.
In line with current practice, we anticipate Ofcom will issue information notice requests in draft form to identify and address any issues, including in relation to security, before the information notice is issued formally. Ofcom will have a legal duty to exercise its remote access powers in a way that is proportionate, ensuring that undue burdens are not placed on businesses. In assessing proportionality in line with this requirement, Ofcom would need to consider the size and resource capacity of a service when choosing the most appropriate way of gathering information, and whether there was a less onerous method of obtaining the necessary information to ensure that the use of this power is proportionate. As I said, the remote access power is limited to “viewing information”. Under this power, Ofcom will be unable to interfere or access the service for any other purpose.
In practice, Ofcom will work with services during the process. It is required to specify, among other things, the information to be provided, which will set the parameters of its access, and why it requires the information, which will explain the link between the information it seeks and the online safety function that it is exercising or deciding whether to exercise.
As noble Lords know, Ofcom must comply with the UK’s data protection law. As we have discussed in relation to other issues, it is required to act compatibly with the European Convention on Human Rights, including Article 8 privacy rights. In addition, under Clause 91(7), Ofcom is explicitly prohibited from requiring the provision of legally privileged information. It will also be under a legal obligation to ensure that the information gathered from services is protected from disclosure unless clearly defined exemptions apply, such as those under Section 393(2) of the Communications Act 2003—for example, the carrying out of any of Ofcom’s functions. I hope that provides reassurance to the noble Lord, Lord Allan, and the noble Baroness, Lady Fox, who raised these questions.
Lord Allan of Hallam (LD)
I am grateful to the Minister. That was helpful, particularly the description of the process and the fact that drafts have to be issued early on. However, it still leaves open a couple of questions, one of which was very helpfully raised by the noble Lord, Lord Knight. We have in Schedule 12 this other set of protections that could be applied. There is a genuine question as to why this has been put in this place and not there.
The second question is to dig a little more into the question of what happens when there is a dispute. The noble Lord, Lord Moylan, pointed out that if you have created a backdoor then you have created a backdoor, and it is dangerous. If we end up in a situation where a company believes that what it is being asked to do by Ofcom is fundamentally problematic and would create a security risk, it will not be good enough to open up the backdoor and then have a judicial review. It needs to be able to say no at that stage, yet the Bill says that it could be committing a serious criminal offence by failing to comply with an information notice. We want some more assurances, in some form, about what would happen in a scenario where a company genuinely and sincerely believes that what Ofcom is asking for is inappropriate and/or dangerous and it wants not to have to offer it unless and until its challenge has been looked at, rather than having to offer it and then later judicially review a decision. The damage would already have been done by opening up an inappropriate backdoor.
Lord Parkinson of Whitley Bay (Con)
A provider would have a right to bring a legal challenge against Ofcom if it considered that a particular exercise of the remote access power was unlawful. I am sure that would be looked at swiftly, but I will write to the noble Lord on the anticipated timelines while that judicial review was pending. Given the serious nature of the issues under consideration, I am sure that would be looked at swiftly. I will write further on that.
Baroness Fox of Buckley (Non-Afl)
Before the Minister sits down, to quote the way the Minister has operated throughout Report, there is consensus across the House that there are some concerns. The reason why there are concerns outside and inside the House on this particular amendment is that it is not entirely clear that those protections exist, and there are worries. I ask the Minister whether, rather than just writing, it would be possible to take this back to the department, table a late amendment and say, “Look again”. That has been done before. It is certainly not too late: if it was not too late to have this amendment then it is certainly not too late to take it away again and to adopt another amendment that gives some safeguarding. Seriously, it is worth looking again.
Lord Parkinson of Whitley Bay (Con)
I had not quite finished; the noble Baroness was quick to catch me before I sat down. I still have some way to go, but I will certainly take on board all the points that have been made on this group.
The noble Lord, Lord Knight, asked about Schedule 12. I will happily write with further information on that, but Schedule 12 is about UK premises, so it is probably not the appropriate place to deal with this, as we need to be able to access services in other countries. If there is a serious security risk then it would not necessarily be proportionate. I will write to him with further details.
Lord Knight of Weymouth (Lab)
I am grateful to the Minister for giving way so quickly. I think the House is asking him to indicate now that he will go away and look at this issue, perhaps with some of us, and that, if necessary, he would be willing to look at coming back with something at Third Reading. From my understanding of the Companion, I think he needs to say words to that effect to allow him to do so, if that is what he subsequently wants to do at Third Reading.
Lord Parkinson of Whitley Bay (Con)
I am very happy to discuss this further with noble Lords, but I will reserve the right, pending that discussion, to decide whether we need to return to this at Third Reading.
Amendments 270 and 272, tabled by my noble friend Lady Fraser of Craigmaddie, to whom I am very grateful for her careful scrutiny of the devolved aspects of the Bill, seek to require Ofcom to include separate analyses of users’ online experiences in England, Wales, Scotland and Northern Ireland in the research about users’ experiences of regulated services and in Ofcom’s transparency reports. While I am sympathetic to her intention—we have corresponded on it, for which I am grateful—it is important that Ofcom has and retains the discretion to prioritise information requests that will best shed light on the experience of users across the UK.
My noble friend and other noble Lords should be reassured that Ofcom has a strong track record of using this discretion to produce data which are representative of people across the whole United Kingdom. Ofcom is committed to reflecting the online experiences of users across the UK and intends, wherever possible, to publish data at a national level. When conducting research, Ofcom seeks to gather views from a representative sample of the United Kingdom and seeks to set quotas that ensure an analysable sample within each of the home nations.
It is also worth noting the provisions in the Communications Act 2003 that require Ofcom to operate offices in each of the nations of the UK, to maintain advisory committees for each, and to ensure their representation on its various boards and panels—and, indeed, on the point raised by the noble Baroness, Lady Kidron, to capture the experiences of children and users of all ages. While we must give Ofcom the discretion it needs to ensure that the framework is flexible and remains future-proofed, I hope that I have reassured my noble friend that her point will indeed be captured, reported on and be able to be scrutinised, not just in this House but across the UK.
Baroness Fraser of Craigmaddie (Con)
I am grateful to the Minister for giving way. My premise is that the reason Ofcom reports in a nation-specific way in broadcasting and in communications is because there is a high-level reference in both the Communications Act 2003 and the BBC charter that requires it to do so, because it feeds down into national quotas and so on. There is currently nothing of that equivalence in the Online Safety Bill. Therefore, we are relying on Ofcom’s discretion, whereas in the broadcasting and communications area we have a high-level reference to insisting that there is a breakdown by nation.
Lord Parkinson of Whitley Bay (Con)
We think we can rely on Ofcom’s discretion, and point to its current practice. I hope that will reassure my noble friend that it will set out the information she seeks.
Lord Parkinson of Whitley Bay (Con)
I was about to say that I am very happy to write to the noble Lord, Lord Stevenson, about the manner by which consent is given in Clause 53(5)(c), but I think his question is on something else.
Lord Stevenson of Balmacara (Lab)
I would be grateful if the Minister could repeat that immediately afterwards, when I will listen much harder.
Just to echo what the noble Baroness was saying, may we take it as an expectation that approaches that are signalled in legislation for broadcasting and communications should apply pari passu to the work of Ofcom in relation to the devolved Administrations?
Lord Parkinson of Whitley Bay (Con)
Yes, and we can point to the current actions of Ofcom to show that it is indeed doing this already, even without that legislative stick.
I turn to the amendments in the name of my noble friend Lord Bethell and the noble Lord, Lord Clement-Jones, on researchers’ access to data. Amendment 237ZA would confer on the Secretary of State a power to make provisions about access to information by researchers. As my noble friend knows, we are sympathetic to the importance of this issue, which is why we have tabled our own amendments in relation to it. However, as my noble friend also knows, in such a complex and sensitive area that we think it is premature to endow the Secretary of State with such broad powers to introduce a new framework. As we touched on in Committee, this is a complex and still nascent area, which is why it is different from the other areas to which the noble Lord, Lord Clement-Jones, pointed in his contribution.
Lord Clement-Jones (LD)
The noble Baroness, Lady Harding, made the point that in other areas where the Minister has agreed to reviews or reports, there are backstop powers; for instance, on app stores. Of course, that was a negotiated settlement, so to speak, but why can the Minister not accede to that in the case of access for researchers, as he has with app stores? Indeed, there is one other example that escapes me, which the Minister has also agreed to.
Lord Parkinson of Whitley Bay (Con)
We touched on the complexity of defining who and what is a researcher and making sure that we do not give rise to bad actors exploiting that. This is a complex area, as we touched on in Committee. As I say, the evidence base here is nascent. It is important first to focus on developing our understanding of the issues to ensure that any power or legislation is fit to address those challenges. Ofcom’s report will not only highlight how platforms can share data with researchers safely but will provide the evidence base for considering any future policy approaches, which we have committed to doing but which I think the noble Lord will agree are worthy of further debate and reflection in Parliament.
Lord Clement-Jones (LD)
The benefit of having a period of time between the last day of Report on Wednesday and Third Reading is that that gives the Minister, the Bill team and parliamentary counsel the time to reflect on the kind of power that could be devised. The wording could be devised, and I would have thought that six weeks would be quite adequate for that, perhaps in a general way. After all, this is not a power that is immediately going to be used; it is a general power that could be brought into effect by regulation. Surely it is not beyond the wit to devise something suitable.
Baroness Kidron (CB)
Sit down or stand up—I cannot remember.
I wonder whether the department has looked at the DSA and other situations where this is being worked out. I recognise that it takes a period of time, but it is not without some precedent that a pathway should be described.
Lord Parkinson of Whitley Bay (Con)
We do not think that six weeks is enough time for the evidence base to develop sufficiently, our assessment being that to endow the Secretary of State with that power at this point is premature.
Amendment 262AA would require Ofcom to consider whether it is appropriate to require providers to take steps to comply with Ofcom’s researcher access guidance when including a requirement to take steps in a confirmation decision. This would be inappropriate because the researcher access provisions are not enforceable requirements; as such, compliance with them should not be subject to enforcement by the regulator. Furthermore, enforcement action may relate to a wide variety of very important issues, and the steps needed should be sufficient to address a failure to comply with an enforceable requirement. Singling out compliance with researcher access guidance alone risks implying that this will be adequate to address core failures.
Amendment 272AB would require Ofcom to give consideration to whether greater access to data could be achieved through legal requirements or incentives for regulated services. I reassure noble Lords that the scope of Ofcom’s report will already cover how greater access to data could be achieved, including through enforceable requirements on providers.
Amendment 272E would require Ofcom to take a provider’s compliance with Ofcom’s guidance on researcher access to data into account when assessing risks from regulated services and determining whether to take enforcement action and what enforcement action to take. However, we do not believe that this is a relevant factor for consideration of these issues. I hope noble Lords will agree that whether or not a company has enabled researcher access to its data should not be a mitigating factor against Ofcom requiring companies to deal with terrorism or child sexual exploitation or abuse content, for example.
On my noble friend Lord Bethell’s remaining Amendments 272BA, 273A and 273B, the first of these would require Ofcom to publish its report on researchers’ access to information within six months. While six months would not be deliverable given other priorities and the complexity of this issue, the government amendment to which I have spoken would reduce the timelines from two years to 18 months. That recognises the importance of the issue while ensuring that Ofcom can deliver the key priorities in establishing the core parts of the regulatory framework; for example, the illegal content and child safety duties.
Lord Allan of Hallam (LD)
Just on the timescale, one of the issues that we talked about in Committee was the fact that there needs to be some kind of mechanism created, with a code of practice with reference to data protection law and an approving body to approve researchers as suitable to take information; the noble Baroness, Lady Kidron, referred to the DSA process, which the European Union has been working on. I hope the Minister can confirm that Ofcom might get moving on establishing that. It is not dependent on there being a report in 18 months; in fact, you need to have it in place when you report in 18 months, which means you need to start building it now. I hope the Minister would want Ofcom, within its existing framework, to be encouraging the creation of that researcher approval body and code of practice, not waiting to start that process in 18 months’ time.
Lord Parkinson of Whitley Bay (Con)
I will continue my train of thought on my noble friend’s amendments, which I hope will cover that and more.
My noble friend’s Amendment 273A would allow Ofcom to appoint approved independent researchers to access information. Again, given the nascent evidence base here, it is important to focus on understanding these issues before we commit to a researcher access framework.
Under the skilled persons provisions, Ofcom will already have the powers to appoint a skilled person to assess compliance with the regulatory framework; that includes the ability to leverage the expertise of independent researchers. My noble friend’s Amendment 273B would require Ofcom to produce a code of practice on access to data by researchers. The government amendments I spoke to earlier will require Ofcom to produce guidance on that issue, which will help to promote information sharing in a safe and secure way.
To the question asked by the noble Lord, Lord Allan: yes, Ofcom can start the process and do it quickly. The question here is really about the timeframe in which it does so. As I said in opening, we understand the calls for further action in this area.
I am happy to say to my noble friend Lord Bethell, to whom we are grateful for his work on this and the conversations we have had, that we will explore the issue further and report back on whether further measures to support researchers’ access to data are required and, if so, whether they can be implemented through other legislation, such as the Data Protection and Digital Information (No.2) Bill.
Lord Knight of Weymouth (Lab)
Before the Minister sits down—he has been extremely generous in taking interventions—I want to put on record my understanding of his slightly ambiguous response to Amendment 247A, so that he can correct it if I have got it wrong. My understanding is that he has agreed to go away and reflect on the amendment and that he will have discussions with us about it. Only if he then believes that it is helpful to bring forward an amendment at Third Reading will he do so.
Lord Parkinson of Whitley Bay (Con)
Yes, but I do not want to raise the hopes of the noble Lord or others, with whom I look forward to discussing this matter. I must manage their expectations about whether we will bring anything forward. With that, I beg to move.
Member’s explanatory statement
This amendment makes a change to the definition of “relevant content” which applies for the purposes of Chapter 3 of Part 4 of the Bill (transparency of terms of service etc). The effect of the change is to cover a wider range of ways in which a term of service might indicate that a certain kind of content is not allowed on the service.
“CHAPTER 3ADECEASED CHILD USERSDisclosure of information about use of service by deceased child users
(1) A provider of a relevant service must make it clear in the terms of service what their policy is about dealing with requests from parents of a deceased child for information about the child’s use of the service.(2) A provider of a relevant service must have a dedicated helpline or section of the service, or some similar means, by which parents can easily find out what they need to do to obtain information and updates in those circumstances, and the terms of service must provide details.(3) A provider of a relevant service must include clear and accessible provisions in the terms of service—(a) specifying the procedure for parents of a deceased child to request information about the child’s use of the service,(b) specifying what evidence (if any) the provider will require about the parent’s identity or relationship to the child, and(c) giving sufficient detail to enable child users and their parents to be reasonably certain about what kinds of information would be disclosed and how information would be disclosed. (4) A provider of a relevant service must respond in a timely manner to requests from parents of a deceased child for information about the child’s use of the service or for updates about the progress of such information requests.(5) A provider of a relevant service must operate a complaints procedure in relation to the service that—(a) allows for complaints to be made by parents of a deceased child who consider that the provider is not complying with a duty set out in any of subsections (1) to (4),(b) provides for appropriate action to be taken by the provider of the service in response to such complaints, and(c) is easy to access, easy to use and transparent.(6) A provider of a relevant service must include in the terms of service provisions which are easily accessible specifying the policies and processes that govern the handling and resolution of such complaints.(7) If a person is the provider of more than one relevant service, the duties set out in this section apply in relation to each such service.(8) The duties set out in this section extend only to the design, operation and use of a service in the United Kingdom, and references in this section to children are to children in the United Kingdom.(9) A “relevant service” means—(a) a Category 1 service (see section 86(10)(a));(b) a Category 2A service (see section 86(10)(b));(c) a Category 2B service (see section 86(10)(c)).(10) In this section “parent”, in relation to a child, includes any person who is not the child’s parent but who—(a) has parental responsibility for the child within the meaning of section 3 of the Children Act 1989 or Article 6 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)), or(b) has parental responsibilities in relation to the child within the meaning of section 1(3) of the Children (Scotland) Act 1995.(11) In the application of this section to a Category 2A service, references to the terms of service include references to a publicly available statement.”Member’s explanatory statement
This amendment imposes new duties on providers of Category 1, 2A and 2B services to have a policy about disclosing information to the parents of deceased child users, and providing details about it in the terms of service or a publicly available statement.
“OFCOM’s guidance about duties set out in section (Disclosure of information about use of service by deceased child users)
(1) OFCOM must produce guidance for providers of relevant services to assist them in complying with their duties set out in section (Disclosure of information about use of service by deceased child users).(2) OFCOM must publish the guidance (and any revised or replacement guidance).(3) In this section “relevant service” has the meaning given by section (Disclosure of information about use of service by deceased child users).”Member’s explanatory statement
This amendment requires OFCOM to give guidance to providers about the new duties imposed by the other Clause proposed after Clause 67 in my name.
Member’s explanatory statement
This amendment adds a reference to content to which section 12(2) applies (content to which certain user empowerment duties apply) to paragraph 1 of the transparency reporting Schedule, which allows OFCOM to require providers of user-to-user services to include information in their transparency reports about the incidence of content.
Member’s explanatory statement
This amendment is consequential on the amendment to Clause 211 in my name adding a definition of “pornographic content” to that Clause.
“(2) A duty to ensure, by the use of age verification or age estimation (or both), that children are not normally able to encounter content that is regulated provider pornographic content in relation to the service.(2A) The age verification or age estimation must be of such a kind, and used in such a way, that it is highly effective at correctly determining whether or not a particular user is a child.” Member’s explanatory statement
This amendment requires providers within scope of Part 5 to use highly effective age verification or age estimation (or both) to comply with the duty in Clause 72(2) (preventing children from encountering provider pornographic content).
Member’s explanatory statement
This amendment requires OFCOM’s guidance about the duty in Clause 72(2) to give examples of kinds and uses of age verification and age estimation that are, or are not, highly effective at determining whether or not a user is a child.
“(2A) The guidance may elaborate on the following principles governing the use of age verification or age estimation for the purpose of compliance with the duty set out in section 72(2)—(a) the principle that age verification or age estimation should be easy to use;(b) the principle that age verification or age estimation should work effectively for all users regardless of their characteristics or whether they are members of a certain group; (c) the principle of interoperability between different kinds of age verification or age estimation.(2B) The guidance may refer to industry or technical standards for age verification or age estimation (where they exist).”Member’s explanatory statement
This amendment sets out principles about age verification or age estimation, which are relevant to OFCOM’s guidance to providers about their duty in Clause 72(2).
Member’s explanatory statement
This amendment is consequential on the new Clause proposed to be inserted after Clause 149 in my name expanding OFCOM’s duties to promote media literacy in relation to regulated user-to-user and search services.
Lord Parkinson of Whitley Bay (Con)
My Lords, the amendments in this group relate to provisions for media literacy in the Bill and Ofcom’s existing duty on media literacy under Section 11 of the Communications Act 2003. I am grateful to noble Lords from across your Lordships’ House for the views they have shared on this matter, which have been invaluable in helping us draft the amendments.
Media literacy remains a key priority in our work to tackle online harms; it is essential not only to keep people safe online but for them to understand how to make informed decisions which enhance their experience of the internet. Extensive work is currently being undertaken in this area. Under Ofcom’s existing duty, the regulator has initiated pilot work to promote media literacy. It is also developing best practice principles for platform-based media literacy measures and has published guidance on how to evaluate media literacy programmes.
While we believe that the Communications Act provides Ofcom with sufficient powers to undertake an ambitious programme of media literacy activity, we have listened to the concerns raised by noble Lords and understand the desire to ensure that Ofcom is given media literacy objectives which are fit for the digital age. We have therefore tabled the following amendments seeking to update Ofcom’s statutory duty to promote media literacy, in so far as it relates to regulated services.
Amendment 274B provides new objectives for Ofcom to meet in discharging its duty. The first objective requires Ofcom to take steps to increase the public’s awareness and understanding of how they can keep themselves and others safe when using regulated services, including building the public’s understanding of the nature and impact of harmful content online, such as disinformation and misinformation. To meet that objective, Ofcom will need to carry out, commission or encourage the delivery of activities and initiatives which enhance users’ media literacy in these ways.
It is important to note that, when fulfilling this new objective, Ofcom will need to increase the public’s awareness of the ways in which they can protect groups that disproportionately face harm online, such as women and girls. The updated duty will also compel Ofcom to encourage the development and use of technologies and systems that support users of regulated services to protect themselves and others. Ofcom will be required to publish a statement recommending ways in which others, including platforms, can take action to support their users’ media literacy.
Amendment 274C places a new requirement on Ofcom to publish a strategy setting out how it will fulfil its media literacy functions under Section 11, including the new objectives. Ofcom will be required to update this strategy every three years and report on progress made against it annually to provide assurance that it is fulfilling its duty appropriately. These reports will be supported by the post-implementation review of the Bill, which covers Ofcom’s media literacy duty in so far as it relates to regulated services. This will provide a reasonable point at which to establish the impact of Ofcom’s work, having given it time to take effect.
I am confident that, through this updated duty, Ofcom will be empowered to ensure that internet users become more engaged with media literacy and, as a result, are safer online. I hope that these amendments will find support from across your Lordships’ House, and I beg to move.
Baroness Bull (CB)
My Lords, I welcome this proposed new clause on media literacy and support the amendments in the names of the noble Lords, Lord Clement-Jones and Lord Knight of Weymouth. I will briefly press the Minister on two points. First, proposed new subsection (1C) sets out how Ofcom must perform its duty under proposed new subsection (1A), but it does not explicitly require Ofcom to work in partnership with existing bodies already engaged in and expert in provision of these kinds of activities. The potential for Ofcom to commission is explicit, but this implies quite a top-down relationship, not a collaboration that builds on best practice, enables scale-up where appropriate and generally avoids reinventing wheels. It seems like a wasted opportunity to fast-track delivery of effective programmes through partnership.
My second concern is that there is no explicit requirement to consider the distinct needs of specific user communities. In particular, I share the concerns of disability campaigners and charities that media literacy activities and initiatives need to take into account the needs of people with learning disabilities, autism and mental capacity issues, both in how activities are shaped and in how they are communicated. This is a group of people who have a great need to go online and engage, but we also know that they are at greater risk online. Thinking about how media literacy can be promoted, particularly among learning disability communities, is really important.
The Minister might respond by saying that Ofcom is already covered by the public sector equality duty and so is already obliged to consider the needs of people with protected characteristics when designing and implementing policies. But the unfortunate truth is that the concerns of the learning disability community are an afterthought in legislation compared with other disabilities, which are already an afterthought. The Petitions Committee in the other place, in its report on online abuse and the experience of disabled people, noted that there are multiple disabled people around the country with the skills and experience to advise government and its bodies but that there is a general unwillingness to engage directly with them. They are often described as hard to reach, which is kind of ironic because in fact most of these people use multiple services and so are very easy to reach, because they are on lots of databases and in contact with government bodies all the time.
The Minister may also point out that Ofcom’s duties in the Communications Act require it to maintain an advisory committee on elderly and disabled persons that includes
“persons who are familiar with the needs of persons with disabilities”.
But referring to an advisory committee is not the same as consulting people with disabilities, both physical and mental, and it is especially important to consult directly with people who may have difficulty understanding what is being proposed. Talking to people directly, rather than through an advisory committee, is very much the goal.
Unlike the draft Bill, which had media literacy as a stand-alone clause, the intention in this iteration is to deal with the issue by amending the Communications Act. It may be that in the web of interactions between those two pieces of legislation, my concerns can be set to rest. But I would find it very helpful if the Minister could confirm today that the intention is that media literacy programmes will be developed in partnership with—and build on best practice of—those organisations already delivering in this space and that the organisations Ofcom collaborates with will be fully inclusive of all communities, including those with disabilities and learning disabilities. Only in this way can we be confident that media literacy programmes will meet their needs effectively, both in content and in how they are communicated.
Finally, can the Minister confirm whether Ofcom considers people with lived experience of disability as subject matter experts on disability for the purpose of fulfilling its consultation duties? I asked this question during one of the helpful briefing sessions during the Bill’s progress earlier this year, but I did not get an adequate answer. Can the Minister clarify that for the House today?
Lord Knight of Weymouth (Lab)
My Lords, the Government have moved on this issue, and I very much welcome that. I am grateful to the Minister for listening and for the fact that we now have Section 11 of the Communications Act being brought into the digital age through the Government’s Amendments 274B and 274C. The public can now expect to be informed and educated about content-related harms, reliability and accuracy; technology companies will have to play their part; and Ofcom will have to regularly report on progress, and will commission and partner with others to fulfil those duties. That is great progress.
The importance of this was underscored at a meeting of the United Nations Human Rights Council just two weeks. Nada Al-Nashif, the UN Deputy High Commissioner for Human Rights in an opening statement said that media and digital literacy empowered individuals and
“should be considered an integral part of education efforts”.
Tawfik Jelassi, the assistant director-general of UNESCO, in a statement attached to that meeting, said that
“media and information literacy was essential for individuals to exercise their right to freedom of opinion and expression”—
I put that in to please the noble Baroness, Lady Fox—and
“enabled access to diverse information, cultivated critical thinking, facilitated active engagement in public discourse, combatted misinformation, and safeguarded privacy and security, while respecting the rights of others”.
If only the noble Lord, Lord Moylan, was in his place to hear me use the word privacy. He continued:
“Together, the international community could ensure that media and information literacy became an integral part of everyone’s lives, empowering all to think critically, promote digital well-being, and foster a more inclusive and responsible global digital community”.
I thought those were great words, summarising why we needed to do this.
I am grateful to Members on all sides of the House for the work that they have done on media literacy. Part of repeating those remarks was that this is so much more about empowerment than it is about loading safety on to individuals, as the noble Baroness, Lady Kidron, rightly said in her comments.
Nevertheless, we want the Minister to reflect on a couple of tweaks. Amendment 269C in my name is around an advisory committee being set up within six months and in its first report assessing the need for a code on misinformation. I have a concern that, as the regime that we are putting in place with this Bill comes into place and causes some of the harmful content that people find engaging to be suppressed, the algorithms will go to something else that is engaging, and that something else is likely to be misinformation and disinformation. I have a fear that that will become a growing problem that the regulator will need to be able to address, which is why it should be looking at this early.
Incidentally, that is why the regulator should also look at provenance, as in Amendment 269AA from the noble Lord, Lord Clement-Jones. It was tempting in listening to him to see whether there was an AI tool that could trawl across all the comments that he has made during the deliberations on this Bill to see whether he has quoted the whole of the joint report—but that is a distraction.
My Amendment 269D goes to the need for media literacy on systems, processes and business models, not just on content. Time and again, we have emphasised the need for this Bill to be as much about systems as content. There are contexts where individual, relatively benign pieces of content can magnify if part of a torrent that then creates harm. The Mental Health Foundation has written to many of us to make this point. In the same way that the noble Baroness, Lady Bull, asked about ensuring that those with disability have their own authentic voice heard as these media literacy responsibilities are played out, so the Mental Health Foundation wanted the same kind of involvement from young people; I agree with both. Please can we have some reassurance that this will be very much part of the literacy duties on Ofcom and the obligations it places on service providers?
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful to noble Lords for their comments, and for the recognition from the noble Lord, Lord Knight, of the changes that we have made. I am particularly grateful to him for having raised media literacy throughout our scrutiny of this Bill.
His Amendments 269C and 269D seek to set a date by which the establishment of the advisory committee on misinformation and disinformation must take place and to set requirements for its first report. Ofcom recognises the valuable role that the committee will play in providing advice in relation to its duties on misinformation and disinformation, and has assured us that it will aim to establish the committee as soon as is reasonably possible, in recognition of the threats posed by misinformation and disinformation online.
Given the valuable role of the advisory committee, Ofcom has stressed how crucial it will be to have appropriate time to appoint the best possible committee. Seeking to prescribe a timeframe for its implementation risks impeding Ofcom’s ability to run the thorough and transparent recruitment process that I am sure all noble Lords want and to appoint the most appropriate and expert members. It would also not be appropriate for the Bill to be overly prescriptive on the role of the committee, including with regard to its first report, in order for it to maintain the requisite independence and flexibility to give us the advice that we want.
Amendment 269AA from the noble Lord, Lord Clement-Jones, seeks to add advice on content provenance to the duties of the advisory committee. The new media literacy amendments, which update Ofcom’s media literacy duties, already include a requirement for Ofcom to take steps to help users establish the reliability, accuracy and authenticity of content found on regulated services. Ofcom will have duties and mechanisms to be able to advise platforms on how they can help users to understand whether content is authentic; for example, by promoting tools that assist them to establish the provenance of content, where appropriate. The new media literacy duties will require Ofcom to take tangible steps to prioritise the public’s awareness of and resilience to misinformation and disinformation online. That may include enabling users to establish the reliability, accuracy and authenticity of content, but the new duties will not remove content online; I am happy to reassure the noble Baroness, Lady Fox, on that.
The advisory committee is already required under Clause 141(4)(c) to advise Ofcom on its exercise of its media literacy functions, including its new duties relating to content authenticity. The Bill does not stipulate what tools service providers should use to fulfil their duties, but Ofcom will have the ability to recommend in its codes of practice that companies use tools such as provenance technologies to identify manipulated media which constitute illegal content or content that is harmful to children, where appropriate. Ofcom is also required to take steps to encourage the development and use of technologies that provide users with further context about content that they encounter online. That could include technologies that support users to establish content provenance. I am happy to reassure the noble Lord, Lord Clement-Jones, that the advisory committee will already be required to advise on the issues that he has raised in his amendment.
On media literacy more broadly, Ofcom retains its overall statutory duty to promote media literacy, which remains broad and non-prescriptive. The new duties in this Bill, however, are focused specifically on harm; that is because the of nature of the Bill, which seeks to make the UK the safest place in the world to be online and is necessarily focused on tackling harms. To ensure that Ofcom succeeds in the delivery of these new specific duties with regard to regulated services, it is necessary that the regulator has a clearly defined scope. Broadening the duties would risk overburdening Ofcom by making its priorities less clear.
The noble Baroness, Lady Bull—who has been translated to the Woolsack while we have been debating this group—raised media literacy for more vulnerable users. Under Ofcom’s existing media literacy programme, it is already delivering initiatives to support a range of users, including those who are more vulnerable online, such as people with special educational needs and people with disabilities. I am happy to reassure her that, in delivering this work, Ofcom is already working not just with expert groups including Mencap but with people with direct personal experiences of living with disabilities.
The noble Lord, Lord Clement-Jones, raised Ofsted. Effective regulatory co-ordination is essential for addressing the crosscutting opportunities and challenges posed by digital technologies and services. Ofsted will continue to engage with Ofcom through its existing mechanisms, including engagement led by its independent policy team and those held with Ofcom’s online safety policy director. In addition to that, Ofsted is considering mechanisms through which it can work more closely with Ofcom where appropriate. These include sharing insights from inspections in an anonymised form, which could entail reviews of its inspection bases and focus groups with inspectors, on areas of particular concern to Ofcom. Ofsted is committed to working with Ofcom’s policy teams to work these plans up in more detail.
Lord McNally (LD)
My Lords, could I ask the Minister a question? He has put his finger on one of the most important aspects of this Bill: how it will integrate with the Department for Education and all its responsibilities for schools. Again, talking from long experience, one of the worries is the silo mentality in Whitehall, which is quite often strongest in the Department for Education. Some real effort will be needed to make sure there is a crossover from the powers that Ofcom has to what happens in the classroom.
Lord Parkinson of Whitley Bay (Con)
I hope what I have said about the way that Ofsted and Ofcom are working together gives the noble Lord some reassurance. He is right, and it is not just in relation to the Department for Education. In my own department, we have discussed in previous debates on media literacy the importance of critical thinking, equipping people with the sceptical, quizzical, analytic skills they need—which art, history and English literature do as well. The provisions in this Bill focus on reducing harm because the Bill is focused on making the UK the safest place to be online, but he is right that media literacy work more broadly touches on a number of government departments.
Amendment 274BA would require Ofcom to promote an understanding of how regulated services’ business models operate, how they use personal data and the operation of their algorithmic systems and processes. We believe that Ofcom’s existing duty under the Communications Act already ensures that the regulator can cover these aspects in its media literacy activities. The duty requires Ofcom to build public awareness of the processes by which material on regulated services is selected or made available. This enables Ofcom to address the platform features specified in this amendment.
The Government’s amendments include extensive new objectives for Ofcom, which apply to harmful ways in which a service is used as well as harmful content. We believe it important not to add further to this duty when the outcomes can already be achieved through the existing duty. We do not wish to limit, by implication, Ofcom’s media literacy duties in relation to other, non-regulated services.
We also judge that the noble Lord’s amendment carries a risk of confusing the remits of Ofcom and the Information Commissioner’s Office. UK data protection law already confers a right for people to be informed about how their personal data are being used, making this aspect of the amendment superfluous.
Lord Clement-Jones (LD)
I do not believe that the Minister has dealt with the minimum standards issue.
Lord Parkinson of Whitley Bay (Con)
I do not think that the noble Lord was listening to that point, but I did.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful for the opportunity to set out the need for Clauses 158 and 159. The amendments in this group consider the role of government in two specific areas: the power for the Secretary of State to direct Ofcom about its media literacy functions in special circumstances and the power for the Secretary of State to issue non-binding guidance to Ofcom. I will take each in turn.
Amendment 219 relates to Clause 158, on the Secretary of State’s power to direct Ofcom in special circumstances. These include where there is a significant threat to public safety, public health or national security. This is a limited power to enable the Secretary of State to set specific objectives for Ofcom’s media literacy activity in such circumstances. It allows the Secretary of State to direct Ofcom to issue public statement notices to regulated service providers, requiring providers to set out the steps they are taking to address the threat. The regulator and online platforms are thereby compelled to take essential and transparent actions to keep the public sufficiently informed during crises. The powers ensure that the regulatory framework is future-proofed and well equipped to respond in such circumstances.
As the noble Lord, Lord Clement-Jones, outlined, I corresponded with him very shortly before today’s debate and am happy to set out a bit more detail for the benefit of the rest of the House. As I said to him by email, we expect the media literacy powers to be used only in exceptional circumstances, where it is right that the Secretary of State should have the power to direct Ofcom. The Government see the need for an agile response to risk in times of acute crisis, such as we saw during the Covid-19 pandemic or in relation to the war in Ukraine. There may be a situation in which the Government have access to information, through the work of the security services or otherwise, which Ofcom does not. This power enables the Secretary of State to make quick decisions when the public are at risk.
Our expectation is that, in exceptional circumstances, Ofcom would already be taking steps to address harm arising from the provision of regulated services through its existing media literacy functions. However, these powers will allow the Secretary of State to step in if necessary to ensure that the regulator is responding effectively to these sudden threats. It is important to note that, for transparency, the Secretary of State will be required to publish the reasons for issuing a direction to Ofcom in these circumstances. This requirement does not apply should the circumstances relate to national security, to protect sensitive information.
The noble Lord asked why we have the powers under Clause 158 when they do not exist in relation to broadcast media. We believe that these powers are needed with respect to social media because, as we have seen during international crises such as the Covid-19 pandemic, social media platforms can sadly serve as hubs for low-quality, user-generated information that is not required to meet journalistic standards, and that can pose a direct threat to public health. By contrast, Ofcom’s Broadcasting Code ensures that broadcast news, in whatever form, is reported with due accuracy and presented with due impartiality. Ofcom can fine, or ultimately revoke a licence to broadcast in the most extreme cases, if that code is breached. This means that regulated broadcasters can be trusted to strive to communicate credible, authoritative information to their audiences in a way that social media cannot.
Lord Allan of Hallam (LD)
We established in our last debate that the notion of a recognised news publisher will go much broader than a broadcaster. I put it to the Minister that we could end up in an interesting situation where one bit of the Bill says, “You have to protect content from these people because they are recognised news publishers”. Another bit, however, will be a direction to the Secretary of State saying that, to deal with this crisis, we are going to give a media literacy direction that says, “Please get rid of all the content from this same news publisher”. That is an anomaly that we risk setting up with these different provisions.
Baroness Fox of Buckley (Non-Afl)
On the previous group, I raised the issue of legal speech that was labelled as misinformation and removed in the extreme situation of a public health panic. This was seemingly because the Government were keen that particular public health information was made available. Subsequently, we discovered that those things were not necessarily untrue and should not have been removed. Is the Minister arguing that this power is necessary for the Government to direct that certain things are removed on the basis that they are misinformation—in which case, that is a direct attempt at censorship? After we have had a public health emergency in which “facts” have been contested and shown to not be as black and white or true as the Government claimed, saying that the power will be used only in extreme circumstances does not fill me with great confidence.
Lord Parkinson of Whitley Bay (Con)
I am happy to make it clear, as I did on the last group, that the power allows Ofcom not to require platforms to remove content, only to set out what they are doing in response to misinformation and disinformation—to require platforms to make a public statement about what they are doing to tackle it. In relation to regulating news providers, we have brought the further amendments forward to ensure that those subject to sanctions cannot avail themselves of the special provisions in the Bill. Of course, the Secretary of State will be mindful of the law when issuing directions in the exceptional circumstances that these clauses set out.
Lord Clement-Jones (LD)
While the Minister is describing that, can he explain exactly which media literacy power would be invoked by the kind of example I gave when I was introducing the amendment and in the circumstances he has talked about? Would he like to refer to the Communications Act?
Lord Parkinson of Whitley Bay (Con)
It depends on the circumstances. I do not want to give one example for fear of being unnecessarily restrictive. In relation to the health misinformation and disinformation we saw during the pandemic, an example would be the suggestions of injecting oneself with bleach; that sort of unregulated and unhelpful advice is what we have in mind. I will write to the noble Lord, if he wants, to see what provisions of the Communications Act we would want invoked in those circumstances.
In relation to Clause 159, which is dealt with by Amendment 222, it is worth setting out that the Secretary of State guidance and the statement of strategic priorities have distinct purposes and associated requirements. The purpose of the statement of strategic priorities is to enable the Secretary of State to specifically set out priorities in relation to online safety. For example, in the future, it may be that changes in the online experience mean that the Government of the day wish to set out their high-level overarching priorities. In comparison, the guidance allows for clarification of what Parliament and Government intended in passing this legislation—as I hope we will—by providing guidance on specific elements of the Bill in relation to Ofcom’s functions. There are no plans to issue guidance under this power but, for example, we are required to issue guidance to Ofcom in relation to the fee regime.
On the respective requirements, the statement of strategic priorities requires Ofcom to explain in writing what it proposes to do in consequence of the statement and publish an annual review of what it has done. Whereas Ofcom must “have regard” to the guidance, the guidance itself does not create any statutory requirements.
This is a new regime and is different in its nature from other established areas of regulations, such as broadcasting. The power in Clause 159 provides a mechanism to provide more certainty, if that is considered necessary, about how the Secretary of State expects Ofcom to carry out its statutory functions. Ofcom will be consulted before guidance is issued, and there are checks on how often it can be issued and revised. The guidance document itself, as I said, does not create any statutory requirements, so Ofcom is required only to “have regard” to it.
This will be an open and transparent way to put forward guidance appropriately with safeguards in place. The independence of the regulator is not at stake here. The clause includes significant limitations on the power, and the guidance cannot fetter Ofcom’s operational independence. We feel that both clauses are appropriate for inclusion in the Bill, so I hope that the noble Lord will withdraw his amendment.
Lord Clement-Jones (LD)
I thank the Minister for that more extended reply. It is a more reassuring response on Clause 159 than we have had before. On Clause 158, the impression I get is that the media literacy power is being used as a smokescreen for the Government telling social media what it should do, indirectly via Ofcom. That seems extraordinary. If the Government were telling the mainstream media what to do in circumstances like this, we would all be up in arms. However, it seems to be accepted as a part of the Bill and that we should trust the Government. The Minister used the phrase “special circumstances”. That is not the phraseology in the clause; it is that “circumstances exist”, and then it goes on to talk about national security and public health. The bar is very low.
I am sure everyone is getting hungry at this time of day, so I will not continue. However, we still have grave doubts about this clause. It seems an extraordinary indirect form of censorship which I hope is never invoked. In the meantime, I beg leave to withdraw my amendment.
Member’s explanatory statement
Clause 161 is about a review by the Secretary of State of the regulatory framework established by this Bill. This amendment inserts a reference to Chapter 3A, which is the new Chapter containing the new duties imposed by the Clause proposed after Clause 67 in my name.
Lord Clement-Jones (LD)
My Lords, clearly, there is a limited number of speakers in this debate. We should thank the noble Lord, Lord Moylan, for tabling this amendment because it raises a very interesting point about the transparency—or not—of the Counter Disinformation Unit. Of course, it is subject to an Oral Question tomorrow as well, which I am sure the noble Viscount will be answering.
There is some concern about the transparency of the activities of the Counter Disinformation Unit. In its report, Ministry of Truth, which deals at some length with the activities of the Counter Disinformation Unit, Big Brother Watch says:
“Giving officials an unaccountable hotline to flag lawful speech for removal from the digital public square is a worrying threat to free speech”.
Its complaint is not only about oversight; it is about the activities. Others such as Full Fact have stressed the fact that there is little or no parliamentary scrutiny. For instance, freedom of information requests have been turned down and Written Questions which try to probe what the activities of the Counter Disinformation Unit are have had very little response. As it says, when the Government
“lobby internet companies about content on their platforms … this is a threat to freedom of expression”.
We need proper oversight, so I am interested to hear the Minister’s response.
Lord Parkinson of Whitley Bay (Con)
My Lords, the Government share the view of my noble friend Lord Moylan about the importance of transparency in protecting freedom of expression. I reassure him and other noble Lords that these principles are central to the Government’s operational response to addressing harmful disinformation and attempts artificially to manipulate our information environment.
My noble friend and others made reference to the operational work of the Counter Disinformation Unit, which is not, as the noble Baroness, Lady Fox, said, the responsibility of my department but of the Department for Science, Innovation and Technology. The Government have always been transparent about the work of the unit; for example, recently publishing a factsheet on GOV.UK which sets out, among other things, how the unit works with social media companies.
I reassure my noble friend that there are existing processes governing government engagements with external parties and emphasise to him that the regulatory framework that will be introduced by the Bill serves to increase transparency and accountability in a way that I hope reassures him. Many teams across government regularly meet industry representatives on a variety of issues from farming and food to telecoms and digital infrastructure. These meetings are conducted within well-established transparency processes and frameworks, which apply in exactly the same way to government meetings with social media companies. The Government have been open about the fact that the Counter Disinformation Unit meets social media companies. Indeed, it would be surprising if it did not. For example, at the beginning of the Russian invasion of Ukraine, the Government worked with social media companies in relation to narratives which were being circulated attempting to deny incidents leading to mass casualties, and to encourage the promotion of authoritative sources of information. That work constituted routine meetings and was necessary in confirming the Government’s confidence in the preparedness and ability of platforms to respond to new misinformation and disinformation threats.
To require additional reporting on a sector-by-sector or department-by-department basis beyond the standardised transparency processes, as proposed in my noble friend’s amendment, would be a disproportionate and unnecessary response to what is routine engagement in an area where the Government have no greater powers or influence than in others. They cannot compel companies to alter their terms of service; nor can or do they seek to mandate any action on specific pieces of content.
I reassure the noble Baroness, Lady Fox, that the Counter Disinformation Unit does not monitor individual people, nor has it ever done so; rather, it tracks narratives and trends using publicly available information online to protect public health, public safety and national security. It has never tracked the activity of individuals, and there is a blanket ban on referring any content from journalists or parliamentarians to social media performs. The Government have always been clear that the Counter Disinformation Unit refers content for consideration only where an assessment has been made that it is likely to breach the platform’s own terms of service. It has no role in deciding what action, if any, to take in response, which is entirely a matter for the platform concerned.
As I said, the Bill will introduce new transparency, accountability and freedom of expression duties for category 1 services which will make the process for any removal or restriction of user-generated content more transparent by requiring category 1 services to set terms of service which are clear, easy for users to understand and consistently enforced. Category 1 services will be prohibited from removing or restricting user-generated content or suspending or banning users where this does not align with those terms of service. Any referrals from government will not, and indeed cannot, supersede these duties in the Bill.
Although I know it will disappoint my noble friend that another of his amendments has not been accepted, I hope I have been able to reassure him about the Government’s role in these processes. As the noble Lord, Lord Clement-Jones, noted, my noble friend Lord Camrose is answering a Question on this in your Lordships’ House tomorrow, further underlining the openness and parliamentary accountability with which we go about this work. I hope my noble friend will, in a similarly post-prandial mood of generosity, suppress his disappointment and feel able to withdraw his amendment.
Baroness Fox of Buckley (Non-Afl)
Before the Minister sits down, I think that it is entirely appropriate for him to say—I have heard it before—“Oh no, nothing was taken down. None of this is believable. No individuals were targeted”. However, that is not the evidence I have seen, and it might well be that I have been shown misinformation. But that is why the Minister has to acknowledge that one of the problems here is that indicated by Full Fact—which, as we know, is often endorsed by government Ministers as fact-checkers. It says that because the Government are avoiding any scrutiny for this unit, it cannot know. It becomes a “he said, she said” situation. I am afraid that, because of the broader context, it would make the Minister’s life easier, and be clearer to the public—who are, after all, worried about this—if he accepted the ideas in the amendment of the noble Lord, Lord Moylan. We would then be clear and it would be out in the open. If the FOIs and so on that have been constantly put forward were answered, would that not clear it up?
Lord Parkinson of Whitley Bay (Con)
I have addressed the points made by the noble Baroness and my noble friend already. She asks the same question again and I can give her the same answer. We are operating openly and transparently here, and the Bill sets out further provisions for transparency and accountability.
Lord Moylan (Con)
My Lords, I see what my noble friend did there, and it was very cunning. He gave us a very worthwhile account of the activities of the Counter Disinformation Unit, a body I had not mentioned at all, as if the Counter Disinformation Unit was the sole locus of this sort of activity. I had not restricted it to that. We know, in fact, that other bodies within government have been involved in undertaking this sort of activity, and on those he has given us no answer at all, because he preferred to answer about one particular unit. He referred also to its standardised transparency processes. I can hardly believe that I am reading out words such as those. The standardised transparency process allows us all to know that encounters take place but still refuses to let us know what actually happens in any particular encounter, even though there is a great public interest in doing so. However, I will not press it any further.
My noble friend, who is genuinely a friend, is in danger of putting himself, at the behest of civil servants and his ministerial colleagues, in some danger. We know what happens in these cases. The Minister stands at the Dispatch Box and says “This has never happened; it never normally happens; it will not happen. Individuals are never spoken of, and actions of this character are never taken”. Then of course, a few weeks or months later, out pour the leaked emails showing that all these things have been happening all the time. The Minister then has to resign in disgrace and it is all very sad. His friends, like myself, rally round and buy him a drink, before we never see him again.
Anyway, I think my noble friend must be very careful that he does not put himself in that position. I think he has come close to doing so this evening, through the assurances he has given your Lordships’ House. Although I do not accept those assurances, I will none the less withdraw the amendment, with the leave of the House.
(c) an assessment required to be carried out by section (Assessment duties: user empowerment),”Member’s explanatory statement
This amendment ensures that Clause 173, which is about the approach to be taken by providers to judgements about the status of content, applies to assessments under the new Clause proposed after Clause 11 in my name.
Lord Stevenson of Balmacara (Lab)
My Lords, this has been a good debate. It is very hard to see where one would want to take it. If it proves anything, it is that the decision to drop the legal but harmful provisions in the Bill was probably taken for the wrong reasons but was the right decision, since this is where we end up—in an impossible moral quandary which no amount of writing, legalistic or otherwise, will get us out of. This should be a systems Bill, not a content Bill.
Lord Parkinson of Whitley Bay (Con)
My Lords, I start by saying that accurate systems and processes for content moderation are crucial to the workability of this Bill and keeping users safe from harm. Amendment 228 from the noble Lord, Lord Allan of Hallam, seeks to remove the requirement for platforms to treat content as illegal or fraudulent content if reasonable grounds for that inference exist. The noble Lord set out his concerns about platforms over-removing content when assessing illegality.
Under Clause 173(5), platforms will need to have reasonable grounds to determine whether content is illegal or a fraudulent advertisement. Only when a provider has reasonable grounds to infer that said content is illegal or a fraudulent advertisement must it then comply with the relevant requirements set out in the Bill. This would mean removing the content or preventing people from encountering it through risk-based and proportionate systems and processes.
“Time for publishing first guidance under certain provisions of this Act
(1) OFCOM must publish guidance to which this section applies within the period of 18 months beginning with the day on which this Act is passed. (2) This section applies to—(a) the first guidance under section 47(2)(a) (record-keeping and review);(b) the first guidance under section 47(2)(b) (children’s access assessments);(c) the first guidance under section 48(1) (content harmful to children);(d) the first guidance under section 73 (provider pornographic content);(e) the first guidance under section 90(1) (illegal content risk assessments under section 8);(f) the first guidance under section 90(2) (illegal content risk assessments under section 22);(g) the first guidance under section 90(3) (children’s risk assessments);(h) the first guidance under section 140 (enforcement);(i) the first guidance under section 174 relating to illegal content judgements within the meaning of subsection (2)(a) of that section (illegal content and fraudulent advertisements).(3) If OFCOM consider that it is necessary to extend the period mentioned in subsection (1) in relation to guidance mentioned in any of paragraphs (a) to (i) of subsection (2), OFCOM may extend the period in relation to that guidance by up to 12 months by making and publishing a statement.But this is subject to subsection (6).(4) A statement under subsection (3) must set out—(a) the reasons why OFCOM consider that it is necessary to extend the period mentioned in subsection (1) in relation to the guidance concerned, and(b) the period of extension.(5) A statement under subsection (3) may be published at the same time as (or incorporate) a statement under section 38(12) (extension of time to prepare certain codes of practice).(6) But a statement under subsection (3) may not be made in relation to guidance mentioned in a particular paragraph of subsection (2) if—(a) a statement has previously been made under subsection (3) (whether in relation to guidance mentioned in the same or a different paragraph of subsection (2)), or(b) a statement has previously been made under section 38(12).”Member’s explanatory statement
This amendment provides that OFCOM must prepare the first guidance under certain provisions of the Bill within 18 months of Royal Assent, unless they consider a longer period to be necessary in which case OFCOM may (on one occasion only) extend the period and set out why in a published statement.
“(ga) Chapter 3A of Part 4 (deceased child users);”Member’s explanatory statement
Clause 176 is about liability of providers who are individuals. This amendment inserts a reference to Chapter 3A, which is the new Chapter containing the new duties imposed by the Clause proposed after Clause 67 in my name, so that individuals may be jointly and severally liable for the duties imposed by that clause.
Member’s explanatory statement
This amendment is a minor change to ensure consistency of tenses.
Lord Parkinson of Whitley Bay
232: Schedule 17, page 247, line 35, at end insert—
“(ba) section (Assessment duties: user empowerment) (assessments related to the adult user empowerment duty set out in section 12(2)), and”
Member’s explanatory statement
This amendment ensures that, during the transitional period when video-sharing platform services continue to be regulated by Part 4B of the Communications Act 2003, providers of such services are not exempt from the new duty in the new clause proposed after Clause 11 in my name to carry out assessments for the purposes of the user empowerment duties in Clause 12(2).
Member’s explanatory statement
This amendment ensures that, during the transitional period when video-sharing platform services continue to be regulated by Part 4B of the Communications Act 2003, providers of such services are not exempt from the new duty inserted in Clause 19 (see the amendments of that Clause proposed in my name) to keep records of the new assessments.
234: Schedule 17, page 248, line 20, at end insert—
“(ea) the duties set out in section (Disclosure of information about use of service by deceased child users) (deceased child users);”Member’s explanatory statement
This amendment ensures that services already regulated under Part 4B of the Communications Act 2003 (video-sharing platform services) are not required to comply with the new duties imposed by the clause proposed after Clause 67 in my name during the transitional period.
Lord Parkinson of Whitley Bay
236A: After Clause 194, insert the following new Clause—
“Power to regulate app stores
(1) Subject to the following provisions of this section and section (Power to regulate app stores: supplementary), the Secretary of State may by regulations amend any provision of this Act to make provision for or in connection with the regulation of internet services that are app stores.
(2) Regulations under this section may not be made before OFCOM have published a report under section (OFCOM’s report about use of app stores by children)(report about use of app stores by children).
(3) Regulations under this section may be made only if the Secretary of State, having considered that report, considers that there is a material risk of significant harm to an appreciable number of children presented by either of the following, or by both taken together—
(a) harmful content present on app stores, or
(b) harmful content encountered by means of regulated apps available in app stores.
(4) Before making regulations under this section the Secretary of State must consult—
(a) persons who appear to the Secretary of State to represent providers of app stores,
(b) persons who appear to the Secretary of State to represent the interests of children (generally or with particular reference to online safety matters),
(c) OFCOM,
(d) the Information Commissioner,
(e) the Children’s Commissioner, and
(f) such other persons as the Secretary of State considers appropriate.
(5) In this section and in section (Power to regulate app stores: supplementary)—
“amend” includes repeal and apply (with or without modifications);
“app” includes an app for use on any kind of device, and “app store” is to be read accordingly;
“content that is harmful to children” has the same meaning as in Part 3 (see section 54);
“harmful content” means—
(a) content that is harmful to children,
(b) search content that is harmful to children, and
(c) regulated provider pornographic content;
“regulated app” means an app for a regulated service;
“regulated provider pornographic content” has the same meaning as in Part 5 (see section 70);
“search content” has the same meaning as in Part 3 (see section 51).
(6) In this section and in section (Power to regulate app stores: supplementary) references to children are to children in the United Kingdom.”
Member’s explanatory statement
This amendment provides that the Secretary of State may make regulations amending this Bill so as to bring app stores within its scope. The regulations may not be made until OFCOM have published their report about the use of app stores by children (see the new Clause proposed to be inserted after Clause 147 in my name).
Lord Parkinson of Whitley Bay (Con)
My Lords, we have had some productive discussions on application stores, commonly known as “app stores”, and their role as a gateway for children accessing online services. I am grateful in particular to my noble friend Lady Harding of Winscombe for her detailed scrutiny of this area and the collaborative approach she has taken in relation to it and to her amendments, to which I will turn in a moment. These share the same goals as the amendments tabled in my name in seeking to add evidence-based duties on app stores to protect children.
The amendments in my name will do two things. First, they will establish an evidence base on the use of app stores by children and the role that app stores play in children encountering harmful content online. Secondly, following consideration of this evidence base, the amendments also confer a power on the Secretary of State to bring app stores into scope of the Bill should there be a material risk of significant harm to children on or through them.
On the evidence base, Amendment 272A places a duty on Ofcom to publish a report on the role of app stores in children accessing harmful content on the applications of regulated services. To help build a greater evidence base about the types of harm available on and through different kinds of app stores, the report will consider a broad range of these stores, which could include those available on various devices, such as smartphones, gaming devices and smart televisions. The report will also assess the use and effectiveness of age assurance on app stores and consider whether the greater use of age assurance or other measures could protect children further.
Publication of the report must be two to three years after the child safety duties come into force so as not to interfere with the Bill’s implementation timelines. This timing will also enable the report to take into account the impact of the regulatory framework that the Bill establishes.
Amendment 274A is a consequential amendment to include this report in the Bill’s broader confidentiality provisions, meaning that Ofcom will need to exclude confidential matters—for example, commercially sensitive information—from the report’s publication.
Government Amendments 236A, 236B and 237D provide the Secretary of State with a delegated power to bring app stores into the scope of regulation following consideration of Ofcom’s report. The power will allow the Secretary of State to make regulations putting duties on app stores to reduce the risks of harm presented to children from harmful content on or via app stores. The specific requirements in these regulations will be informed by the outcome of the Ofcom report I have mentioned.
As well as setting out the rules for app stores, the regulations may also make provisions regarding the duties and functions of Ofcom in regulating app stores. This may include information-gathering and enforcement powers, as well as any obligations to produce guidance or codes of practice for app store providers.
By making these amendments, our intention is to build a robust evidence base on the potential risks of app stores for children without affecting the Bill’s implementation more broadly. Should it be found that duties are required, the Secretary of State will have the ability to make robust and comprehensive duties, which will provide further layers of protection for children. I beg to move.
Baroness Harding of Winscombe (Con)
My Lords, before speaking to my Amendment 239A, I thank my noble friend the Minister, the Secretary of State and the teams in both the department and Ofcom for their collaborative approach in working to bring forward this group of amendments. I also thank my cosignatories. My noble friend Lady Stowell cannot be in her place tonight but she has been hugely helpful in guiding me through the procedure, as have been the noble Lords, Lord Stevenson, Lord Clement-Jones and Lord Knight, not to mention the noble Baroness, Lady Kidron. It has been a proper cross-House team effort. Even the noble Lord, Lord Allan, who started out quite sceptical, has been extremely helpful in shaping the discussion.
I also thank the NSPCC and Barnardo’s for their invaluable advice and support, as well as Snap and Match—two companies which have been willing to stick their heads above the parapet and challenge suppliers and providers on which they are completely dependent in the shape of the current app store owners, Apple and Google.
I reassure my noble friend the Minister—and everyone else—that I have no intention of dividing the House on my amendment, in case noble Lords were worried. I am simply seeking some reassurance on a number of points where my amendments differ from those tabled by the Government—but, first, I will highlight the similarities.
As my noble friend the Minister has referred to, I am delighted that we have two packages of amendments that in both cases recognise that this was a really significant gap in the Bill as drafted. Ignoring the elements of the ecosystem that sell access to regulated services, decide age guidelines and have the ability to do age assurance was a substantial gap in the framing of the Bill. But we have also recognised together that it is very important that this is an “and” not an “or”—it is not instead of regulating user-to-user services or search but in addition to. It is an additional layer that we can bring to protect children online, and it is very important that we recognise that—and both packages do.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am very grateful for the strength of support and echo the tributes that have been paid to my noble friend Lady Harding—the winsome Baroness from Winscombe —for raising this issue and working with us so collaboratively on it. I am particularly glad that we were able to bring these amendments on Report; as she knows, it involved some speedy work by the Bill team and some speedy drafting by the Office of the Parliamentary Counsel, but I am glad that we were able to do it on Report, so that I can take it off my list of things to do over the summer, which was kindly written for me by the noble Lord, Lord Clement-Jones.
My noble friend’s amendments were laid before the Government’s, so she rightly asked a couple of questions on where they slightly differ. Her amendment seeks to ensure that other websites or online marketplaces that allow users to download apps are also caught by these duties. I reassure her that the Government’s amendments would capture these types of services. We have intentionally not provided detail about what constitutes an app store to ensure that the Bill remains future-proof. I will say a bit more about that in a moment. Regulations made by the Secretary of State under this power will be able to specify thresholds for which app stores are in scope, giving clarity to providers and users about the application of the duties.
On questions of definition, we are intentionally choosing not to define app stores in these amendments. The term is generally understood as meaning a service that makes applications available, which means that the Secretary of State will be able to impose duties on any such service. Any platform that enables apps to be downloaded can therefore be considered an app store for the purpose of this duty, regardless of whether or not it calls itself one. Regulations will clearly set out which providers are in scope of the duties. The ability to set threshold conditions will also ensure that any duties capture only those that pose the greatest risk of children accessing harmful content.
We touched on the long-running debate about content and functionality. We have made our position on that clear; it will be caught by references to content. I am conscious that we will return to this on Wednesday, when we will have a chance to debate it further.
On timing, as I said, I am glad that we were able to bring these amendments forward at this stage. The publication date for Ofcom’s report is to ensure that Ofcom can prioritise the implementation of the child safety duties and put in place the Bill’s vital protections for children before turning to its research on app stores.
That timing also allows the Secretary of State to base his or her decision on commencement on the effectiveness of the existing framework and to use the research of Ofcom’s report to set out a more granular approach to issues such as risk assessment and safety duties. It is necessary to await the findings of Ofcom’s report before those duties are commenced.
To the questions posed by the noble Baroness, Lady Kidron, and others about the consultation for that report by Ofcom, we expect Ofcom to consult widely and with all relevant parties when producing its report. We do not believe that there is a need for a specific list of consultees given Ofcom’s experience and expertise in this area as well as the great experience it will have through its existing enforcement and wider consultation requirements. In addition, the Secretary of State, before making regulations, will be required to consult a range of key parties, such as the Children’s Commissioner and the Information Commissioner, and those who represent the interests of children, as well as providers of app stores. That can include children themselves.
On the questions asked by the noble Lord, Lord Knight, on loot boxes, he is right that this piece of work is being led by my department. We want to see the games industry take the lead in strengthening protections for children and adults to mitigate the risk of harms. We are pursuing that through a DCMS-led technical working group, and we will publish an update on progress in the coming months. I again express my gratitude to my noble friend Lady Harding and other noble Lords who have expressed their support.
“Power to regulate app stores: supplementary
(1) In this section (except in subsection (4)(c)) “regulations” means regulations under section (Power to regulate app stores)(1).(2) Provision may be made by regulations only for or in connection with the purposes of minimising or mitigating the risks of harm to children presented by harmful content as mentioned in section (Power to regulate app stores)(3)(a) and (b).(3) Regulations may not have the effect that any body other than OFCOM is the regulator in relation to app stores.(4) Regulations may—(a) make provision exempting specified descriptions of app stores from regulation under this Act;(b) make provision amending Part 2, section 49 or Schedule 1 in connection with provision mentioned in paragraph (a);(c) make provision corresponding or similar to provision which may be made by regulations under paragraph 1 of Schedule 11 (“threshold conditions”), with the effect that only app stores which meet specified conditions are regulated by this Act.(5) Regulations may make provision having the effect that app stores provided from outside the United Kingdom are regulated by this Act (as well as app stores provided from within the United Kingdom), but, if they do so, must contain provision corresponding or similar to section 3(5) and (6)(UK links).(6) The provision that may be made by regulations includes provision—(a) imposing on providers of app stores duties corresponding or similar to duties imposed on providers of Part 3 services by—(i) section 10 or 11 (children’s online safety: user-to-user services) or any of sections 16 to 19 so far as relating to section 10 or 11;(ii) section 24 or 25 (children’s online safety: search services) or any of sections 26 to 29 so far as relating to section 24 or 25;(b) imposing on providers of app stores duties corresponding or similar to duties imposed on providers of internet services within section 71(2) by section 72 (duties about regulated provider pornographic content);(c) imposing on providers of app stores requirements corresponding or similar to requirements imposed on providers of regulated services by, or by OFCOM under, Part 6 (fees); (d) imposing on OFCOM duties in relation to app stores corresponding or similar to duties imposed in relation to Part 3 services by Chapter 3 of Part 7 (OFCOM’s register of risks, and risk profiles);(e) conferring on OFCOM functions in relation to app stores corresponding or similar to the functions that OFCOM have in relation to regulated services under—(i) Chapter 4 of Part 7 (information), or(ii) Chapter 6 of Part 7 (enforcement), including provisions of that Chapter conferring power for OFCOM to impose monetary penalties;(f) about OFCOM’s production of guidance or a code of practice relating to any aspect of the regulation of app stores that is included in the regulations.(7) The provision that may be made by regulations includes provision having the effect that app stores fall within the definition of “Part 3 service” or “regulated service” for the purposes of specified provisions of this Act (with the effect that specified provisions of this Act which apply in relation to Part 3 services or regulated services, or to providers of Part 3 services or regulated services, also apply in relation to app stores or to providers of app stores).(8) Regulations may not amend or make provision corresponding or similar to—(a) Chapter 2 of Part 4 (reporting CSEA content),(b) Chapter 5 of Part 7 (notices to deal with terrorism content and CSEA content), or(c) Part 10 (communications offences).(9) Regulations may make different provision with regard to app stores of different kinds.(10) In this section “specified” means specified in regulations.”Member’s explanatory statement
This amendment makes provision about the purpose and contents of regulations to regulate app stores which may be made by the Secretary of State under the preceding new Clause proposed to be inserted in my name.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsWednesday 12th July 2023
(1 year, 1 month ago)
Lords ChamberRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 151-III(b) Amendments for Report (Supplementary to the Third Marshalled List) - (12 Jul 2023)
Member’s explanatory statement
This amendment is consequential on the amendments made to Clause 39 in my name.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, the amendments in this group consider regulatory accountability and the roles of Ofcom, the Government and Parliament in overseeing the new framework. The proposals include altering the powers of the Secretary of State to direct Ofcom, issue guidance to Ofcom and set strategic priorities. Ofcom’s operational independence is key to the success of this framework, but the regime must ensure that there is an appropriate level of accountability to government. Parliament will also have important functions, in particular scrutinising and approving the codes of practice which set out how platforms can comply with their duties and providing oversight of the Government’s powers.
I heard the strength of feeling expressed in Committee that the Bill’s existing provisions did not get this balance quite right and have tabled amendments to address this. Amendments 129, 134 to 138, 142, 143, 146 and 147 make three important changes to the power for the Secretary of State to direct Ofcom to modify a draft code of practice. First, these amendments replace the public policy wording in Clause 39(1)(a) with a more defined list of reasons for which the Secretary of State can make a direction. This list comprises: national security, public safety, public health and the UK’s international obligations. This is similar to the list set out in a Written Ministerial Statement made last July but omits “economic policy” and “burden to business”.
This closely aligns the reasons in the Bill with the existing power in Section 5 of the Communications Act 2003. The power is limited to those areas genuinely beyond Ofcom’s remit as a regulator and where the Secretary of State might have access to information or expertise that the regulator does not. Secondly, the amendments clarify that the power will be used only for exceptional reasons. As noble Lords know, this has always been our intent and the changes we are tabling today put this beyond doubt. Thirdly, the amendments increase the transparency regarding the use of the power by requiring the Secretary of State to publish details of a direction at the time the power is used. This will ensure that Parliament has advance sight of modifications to a code and I hope will address concerns that several directions could be made on a single code before Parliament became aware.
This group also considers Amendments 131 to 133, which create an 18-month statutory deadline for Ofcom to submit draft codes of practice to the Secretary of State to be laid in Parliament relating to illegal content, safety duties protecting children and other cross-cutting duties. These amendments sit alongside Amendment 230, which we debated on Monday and which introduced the same deadline for Ofcom’s guidance on Part 5 of the regime.
I am particularly grateful to my noble friend Lady Stowell of Beeston, with whom I have had the opportunity to discuss these amendments in some detail as they follow up points that she and the members of her committee gave particular attention to. I beg to move.
Baroness Stowell of Beeston (Con)
My Lords, I will speak to the amendments in this group in my name: Amendments 139, 140, 144 and 145. I thank the noble Lords, Lord Stevenson and Lord Clement-Jones, and the noble Viscount, Lord Colville, for signing those amendments and for their continued support on this group. I am also grateful to my noble friend the Minister and his team for engaging with me on the issue of Secretary of State powers. He has devoted a lot of time and energy to this, which is reflected in the wide- ranging group of amendments tabled by him.
Before I go any further, it is worth emphasising that the underlying concern here is making sure that we have confidence, through this new regulation regime, that the Bill strikes the right balance of power between government, Parliament, the regulator and big tech firms. The committee that I chair—the Communications and Digital Select Committee of your Lordships’ House—has most focused on that in our consideration of the Bill. I should say also that the amendments I have brought forward in my name very much have the support of the committee as well.
These amendments relate to Clause 39, which is where the main issue lies in the context of Secretary of State powers, and we have three broad concerns. First, as it stood, the Bill handed the Secretary of State unprecedented powers to direct the regulator on pretty much anything. Secondly, these powers allowed the Government to conduct an infinite form of ping-pong with the regulator, enabling the Government to prevail in a dispute. Thirdly, this ping-pong could take place in private with no possibility of parliamentary oversight or being able to intervene, as would be appropriate in the event of a breakdown in the relationship between executive and regulator.
This matters because the Online Safety Bill creates a novel form for regulating the internet and what we can or cannot see online, in particular political speech, and it applies to the future. It is one thing for the current Government, who I support, to say that they would never use the powers in this way. That is great but, as we know, current Governments cannot speak for whoever is in power in the generations to come, so it is important that we get this right.
As my noble friend said, he has brought forward amendments to Clause 39 that help to address this. I support him in and commend him for that. The original laundry list of powers to direct Ofcom has been shortened and now follows the precedent set out in the Communications Act 2003. The government amendments also say that the Secretary of State must now publish their directions to Ofcom, which will improve transparency, and once the code is agreed Ofcom will publish changes so that Parliament can see what changes have been made and why. These are all very welcome and, as I say, they go a long way to addressing some of our concerns, but two critical issues remain.
First, the Government retain an opt-out, which means that they do not have to publish their directions if the Secretary of State believes that doing so would risk
“national security or public safety”,
or international relations. However, those points are now the precise grounds on which the Secretary of State may issue a direction and, if history is any guide, there is a real risk that we will never hear about the directions because the Government have decided that they are a security issue.
My Amendments 139 and 140 would require the Secretary of State to at least notify Parliament of the fact that a direction has been issued and what broad topic it relates to. That would not require any details to be published, so it does not compromise security, but it does give assurance that infinite, secretive ping-pong is not happening behind the scenes. My noble friend spoke so quickly at the beginning that I was not quite sure whether he signalled anything, but I hope that he may be able to respond enthusiastically to Amendments 139 and 140.
Secondly, the Government still have powers for infinite ping-pong. I appreciate that the Government have reservations about capping the number of exchanges between the Secretary of State and Ofcom, but they must also recognise the concern that they appear to be preparing the ground for any future Government to reject infinitely the regulator’s proposals and therefore prevail in a dispute about a politically contentious topic. My Amendments 144 and 145 would clarify that the Government will have a legally binding expectation that they will use no more than the bare minimum number of directions to achieve the intent set out in their first direction.
The Government might think that adding this to the Bill is superfluous, but it is necessary in order to give Parliament and the public confidence about the balance of power in this regime. If Parliament felt that the Secretary of State was acting inappropriately, we would have sufficient grounds to intervene. As I said, the Government acknowledged in our discussions the policy substance of these concerns, and as we heard from my noble friend the Minister in introducing this group, there is an understanding on this. For his part, there is perhaps a belief that what they have done goes far enough. I urge him to reconsider Amendments 144 and 145, and I hope that, when he responds to the debate on this group, he can say something about not only Amendments 139 and 140 but the other two amendments that will give me some grounds for comfort.
Baroness Merron (Lab)
My Lords, first, I have to say that, having read Hansard from last Thursday, I feel I should have drawn attention to my interests in the register that relate to the Jewish community. I apologise for not doing so at the time and am pleased to now put this on the record.
I will be brief, as noble Lords have already raised a number of very pertinent points, to which I know the Minister will want to respond. In this group of amendments, there is a very welcome focus on transparency, accountability and the role of Parliament, all of which are absolutely crucial to the success of the Bill. I am grateful to the Minister for his introduction and explanation of the impact of the proposed changes to the role of the Secretary of State and Ofcom, whose codes of practice will be, as the noble Viscount, Lord Colville, said, vitally important to the Bill. We very much welcome the amendments in the name of the noble Baroness, Lady Stowell, which identify the requirements of the Secretary of State. We also welcome the government amendments, which along with the amendments by the noble Baroness, have been signed by my noble friend Lord Stevenson.
The amendments tabled in the name of the noble Lord, Lord Moylan, raise interesting points about the requirement to use the affirmative procedure, among other points. I look forward to the Minister’s response to that and other amendments. It would be helpful to hear from the Minister his thoughts on arrangements for post-legislative scrutiny. It would also be helpful to deliberations to understand whether there have been discussions on this between the usual channels.
Lord Parkinson of Whitley Bay (Con)
My Lords, this is indeed an apposite day to be discussing ongoing ping-pong. I am very happy to speak enthusiastically and more slowly about my noble friend Lady Stowell of Beeston’s Amendments 139 and 140. We are happy to support those, subject to some tidying up at Third Reading. We agree with the points that she has made and are keen to bring something forward which would mean broadly that a statement would be laid before Parliament when the power to direct had been used. My noble friend Lady Harding characterised them as the infinite ping-pong question and the secretive ping-pong question; I hope that deals with the secretive ping-pong point.
My noble friend Lady Stowell’s other amendments focus on the infinite ping-pong question, and the power to direct Ofcom to modify a code. Her Amendments 139, 140, 144 and 145 seek to address those concerns: that the Secretary of State could enter into a private form of ping-pong with Ofcom, making an unlimited number of directions on a code to prevent it from ever coming before Parliament. Let me first be clear that we do not foresee that happening. As the amendments I have spoken to today show, the power can be used only when specific exceptional reasons apply. In that sense, we agree with the intent of the amendments tabled by my noble friend Lady Stowell. However, we cannot accept them as drafted because they rely on concepts— such as the “objective” of a direction—which are not consistent with the procedure for making a direction set out in the Bill.
The amendments I have brought forward mean that private ping-pong between the Secretary of State and Ofcom on a code is very unlikely to happen. Let me set out for my noble friend and other noble Lords why that is. The Secretary of State would need exceptional reasons for making any direction, and the Bill then requires that the code be laid before Parliament as soon as is reasonably practicable once the Secretary of State is satisfied that no further modifications to the draft are required. That does not leave room for the power to be used inappropriately. A code could be delayed in this way and in the way that noble Lords have set out only if the Secretary of State could show that there remained exceptional reasons once a code had been modified. This test, which is a very high bar, would need to be met each time. Under the amendments in my name, Parliament would also be made aware straightaway each time a direction was made, and when the modified code came before Parliament, it would now come under greater scrutiny using the affirmative procedure.
I certainly agree with the points that the noble Lord, Lord Allan, and others made that any directions should be made in as transparent a way as possible, which is why we have tabled these amendments. There may be some circumstances where the Secretary of State has access to information—for example, from the security services—the disclosure of which would have an adverse effect on national security. In our amendments, we have sought to retain the existing provisions in the Bill to make sure that we strike the right balance between transparency and protecting national security.
As the noble Lord mentioned, the Freedom of Information Act provides an additional route to transparency while also containing existing safeguards in relation to national security and other important areas. He asked me to think of an example of something that would be exceptional but not require that level of secrecy. By dropping economic policy and burden to business, I would point him to an example in those areas, but a concrete example evades me this afternoon. Those are the areas to which I would turn his attention.
Lord Allan of Hallam (LD)
Can the Minister confirm that the fact that a direction has been made will always be known to the public, even if the substance of it is not because it is withheld under the secrecy provision? In other words, will the public always have a before and after knowledge of the fact of the direction, even if its substance is absent?
Lord Parkinson of Whitley Bay (Con)
Yes; that is right.
I hope noble Lords will agree that the changes we have made and that I have outlined today as a package mean that we have reached the right balance in this area. I am very grateful to my noble friend Lady Stowell —who I see wants to come in—for the time that she too has given this issue, along with members of her committee.
Baroness Stowell of Beeston (Con)
I am grateful to my noble friend for his constructive response to my Amendments 139 and 140. I am sure he will do me the honour of allowing me to see the Government’s reversioning of my amendments before they are laid so that we can be confident at Third Reading that they are absolutely in line with expectations.
Could I press my noble friend a little further on Amendments 144 and 145? As I understood what he said, the objection from within government is to the language in the amendments I have tabled—although as my noble friend Lady Harding said, they are incredibly modest in their nature.
I was not sure whether my noble friend was saying in his defence against accepting them that issuing a direction would have to be exceptional, and that that led to a need to clarify that this would be ongoing. Would each time there is a ping or a pong be exceptional? Forgive me, because it starts to sound a bit ridiculous when we get into this amount of detail, but it seems to me that the “exceptional” issue kicks in at the point where you issue the direction. Once you engage in a dialogue, “exceptional” is no longer really the issue. It is an odd defence against trying to limit the number of times you allow that dialogue to continue. Bearing in mind that he is willing to look again at Amendments 139 and 140, I wonder whether, between now and Third Reading, he would at least ask parliamentary counsel to look again at the language in my original amendment.
Lord Parkinson of Whitley Bay (Con)
I am certainly happy to commit to showing my noble friend the tidying up we think necessary of the two amendments I said we are happy to accept ahead of Third Reading. On the others, as I said, the code could be delayed repeatedly only if the Secretary of State showed that there remained exceptional reasons once it had been modified, and that high bar would need to be met each time. So we do not agree with her Amendments 14 and 145 because of concerns about the drafting of my noble friend’s current amendment and because the government amendments we have brought forward cater for the scenario about which she is concerned. Her amendments would place a constraint on the Secretary of State not to give more directions than are necessary to achieve the objectives set out in the original direction, but they would not achieve the intent I think my noble friend has. The Bill does not require the direction to have a particular objective. Directions are made because the Secretary of State believes that modifications are necessary for exceptional reasons, and the direction must set out the reasons why the Secretary of State believes that a draft should be modified.
Through the amendments the Government have laid today, the direction would have to be for exceptional reasons relating to a narrower list and Parliament would be made aware each time a direction was made. Parliament would also have increased scrutiny in cases where a direction had been made under Clause 39(1)(a), because of the affirmative procedure. However, I am very happy to keep talking to my noble friend, as we will be on the other amendments, so we can carry on our conversation then if she wishes.
Let me say a bit about the amendments tabled by my noble friend Lord Moylan. His Amendment 218 would require the draft statement of strategic priorities laid before Parliament to be approved by resolution of each House. As we discussed in Committee, the statement of strategic priorities is necessary because future technological changes are likely to shape harms online, and the Government must have an avenue through which to state their strategic priorities in relation to these emerging technologies.
The Bill already requires the Secretary of State to consult Ofcom and other appropriate persons when preparing a statement. This provides an opportunity for consideration and scrutiny of a draft statement, including, for example, by committees of Parliament. This process, combined with the negative procedure, provides an appropriate level of scrutiny and is in line with comparable existing arrangements in the Communications Act in relation to telecommunications, the management of radio spectrum and postal services.
My noble friend’s other amendments would place additional requirements on the Secretary of State’s power to issue non-binding guidance to Ofcom about the exercise of its online safety functions. The guidance document itself does not create any statutory requirements —Ofcom is required only to have regard to the guidance —and on that basis, we do not agree that it is necessary to subject it to parliamentary approval as a piece of secondary legislation. As my noble friend Lady Harding of Winscombe pointed out, we do not require that in numerous other areas of the economy, and we do not think it necessary here.
Let me reassure my noble friend Lord Moylan on the many ways in which Parliament will be able to scrutinise the work of Ofcom. Like most other regulators, it is accountable to Parliament in how it exercises its functions. The Secretary of State is required to present its annual report and accounts before both Houses. Ministers from the devolved Administrations must also lay a copy of the report before their respective Parliament or Assembly. Ofcom’s officers can be required to appear before Select Committees to answer questions about its work; indeed, its chairman and chief executive appeared before your Lordships’ Communications and Digital Committee just yesterday. Parliament will also have a role in approving a number of aspects of the regulatory framework through its scrutiny of both primary and secondary legislation.
Lord Clement-Jones (LD)
My Lords, the key question is this: why have these powers over social media when the Secretary of State does not have them over broadcast?
Lord Parkinson of Whitley Bay (Con)
If I may, I will write to the noble Lord having reflected on that question further. We are talking here about the provisions set up in the Bill to deal with online harms; clearly, that is the focus here, which is why this Bill deals with that. I will speak to colleagues who look at other areas and respond further to the noble Lord’s question.
Let me reassure the noble Baroness, Lady Fox, that, through this Bill, both Ofcom and providers are being asked to have regard to freedom of expression. Ofcom already has obligations under the Human Rights Act to be bound by the European Convention on Human Rights, including Article 10 rights relating to freedom of expression. Through this Bill, user-to-user and search services will have to consider and implement safeguards for freedom of expression when fulfilling their duties. Those points are uppermost in our minds.
I am grateful for the support expressed by noble Lords for the government amendments in this group. Given the mixed messages of support and the continued work with my noble friend Lady Stowell of Beeston, I urge her not to move her amendments.
Member’s explanatory statement
This amendment is consequential on the amendment inserting new subsections (9) to (13) into this Clause in my name.
“(A1) The Secretary of State may direct OFCOM to modify a draft of a code of practice submitted under section 38(1) if the Secretary of State believes that modifications are required for the purpose of securing compliance with an international obligation of the United Kingdom.(B1) The Secretary of State may direct OFCOM to modify a draft of a code of practice, other than a terrorism or CSEA code of practice, submitted under section 38(1) if the Secretary of State believes that modifications are required for exceptional reasons relating to—(a) national security,(b) public safety,(c) public health, or(d) relations with the government of a country outside the United Kingdom.”Member’s explanatory statement
This amendment (together with other amendments to this Clause in my name) sets out the circumstances in which the Secretary of State can direct OFCOM to modify a draft of a code of practice.
(c) must be published, except where the Secretary of State considers that doing so would have the effect mentioned in paragraph (b).”Member’s explanatory statement
This amendment requires a direction given under Clause 39 to be published except in cases where the Secretary of State considers that to do so would be against the interests of national security, public safety or relations with the government of a country outside the United Kingdom.
“(ca) publish the document, and”Member’s explanatory statement
This amendment requires OFCOM to publish a document submitted to the Secretary of State in response the Secretary of State giving a direction under this Clause.
Member’s explanatory statement
This amendment is consequential on the amendments made to Clause 39 in my name.
“(A1) OFCOM must produce guidance for providers of Category 1 services to assist them in complying with their duties set out in section (Assessment duties: user empowerment) (assessments related to the adult user empowerment duty set out in section 12(2)).”Member’s explanatory statement
This amendment requires OFCOM to produce guidance to assist providers of Category 1 services in carrying out their assessments as required by the new Clause proposed after Clause 11 in my name.
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 12 into two Clauses.
“OFCOM’s guidance about protecting women and girls
(1) OFCOM must produce guidance for providers of Part 3 services which focuses on content and activity—(a) in relation to which such providers have duties set out in this Part or Part 4, and(b) which disproportionately affects women and girls.(2) The guidance may, among other things—(a) contain advice and examples of best practice for assessing risks of harm to women and girls from content and activity mentioned in subsection (1), and for reducing such risks;(b) refer to provisions contained in a code of practice under section 36 which are particularly relevant to the protection of women and girls from such content and activity.(3) Before producing the guidance (including revised or replacement guidance), OFCOM must consult—(a) the Commissioner for Victims and Witnesses,(b) the Domestic Abuse Commissioner, and(c) such other persons as OFCOM consider appropriate.(4) OFCOM must publish the guidance (and any revised or replacement guidance).”Member’s explanatory statement
This new Clause requires OFCOM to produce and publish a guidance document focusing on online content and activity which disproportionately affects women and girls.
Lord Parkinson of Whitley Bay (Con)
My Lords, as we discussed in Committee, the Bill contains strong protection for women and girls and places duties on services to tackle and limit the kinds of offences and online abuse that we know disproportionately affect them. His Majesty’s Government are committed to ensuring that women and girls are protected online as well as offline. I am particularly grateful to my noble friend Lady Morgan of Cotes for the thoughtful and constructive way in which she has approached ensuring that the provisions in the Bill are as robust as possible.
It is with my noble friend’s support that I am therefore pleased to move government Amendment 152. This will create a new clause requiring Ofcom to produce guidance that summarises, in one clear place, measures that can be taken to tackle the abuse that women and girls disproportionately face online. This guidance will relate to regulated user-to-user and search services and will cover content regulated under the Bill’s frame- work. Crucially, it will summarise the measures in the Clause 36 codes for Part 3 duties, namely the illegal and child safety duties. It will also include a summary of platforms’ relevant Part 4 duties—for example, relevant terms of service and reporting provisions. This will provide a one-stop shop for providers.
Providers that adhere to the codes of practice will continue to be compliant with the duties. However, this guidance will ensure that it is easy and clear for platforms to implement holistic and effective protections for women and girls across their various duties. Any company that says it is serious about protecting women and girls online will, I am sure, refer to this guidance when implementing protections for its users.
Ofcom will have the flexibility to shape the guidance in a way it deems most effective in protecting women and girls online. However, as outlined in this amendment, we expect that it will include examples of best practice for assessing risks of harm to women and girls from content and activity, and how providers can reduce these risks and emphasise provisions in the codes of practice that are particularly relevant to the protection of women and girls.
To ensure that this guidance is effective and makes a difference, the amendment creates a requirement on Ofcom to consult the Domestic Abuse Commissioner and the Victims’ Commissioner, among other people or organisations it considers appropriate, when it creates this guidance. Much like the codes of practice, this will ensure that the views and voices of experts on the issue, and of women, girls and victims, are reflected. This amendment will also require Ofcom to publish this guidance.
I am grateful to all the organisations that have worked with us and with my noble friend Lady Morgan to get to this point. I hope your Lordships will accept the amendment. I beg to move.
Baroness Morgan of Cotes (Con)
My Lords, I will speak very briefly to this amendment; I know that the House is keen to get on to other business today. I very much welcome the amendment that the Government have tabled. My noble friend the Minister has always said that they want to keep women and girls safe online. As has been referred to elsewhere, the importance of making our digital streets safer cannot be overestimated.
As my noble friend said, women and girls experience a disproportionate level of abuse online. That is now recognised in this amendment, although this is only the start, not the end, of the matter. I thank my noble friend and the Secretary of State for their engagement on this issue. I thank the chief executive and the chair of Ofcom. I also thank the noble Baroness, Lady Kidron, the right reverend Prelate the Bishop of Gloucester, who I know cannot be here today, and the noble Lord, Lord Knight, who signed the original amendment that we discussed in Committee.
My noble friend has already talked about the campaigners outside the Chamber who wanted there to be specific mention of women and girls in the Bill. I thank Refuge, the 100,000 people who signed the End Violence Against Women coalition’s petition, BT, Glitch, Carnegie UK, Professor Lorna Woods, the NSPCC and many others who made the case for this amendment.
As my noble friend said, this is Ofcom guidance. It is not necessarily a code of practice, but it is still very welcome because it is broader than just the specific offences that the Government have legislated on, which I also welcome. As he said, this puts all the things that companies, platforms and search engines should be doing to protect women and girls online in one specific place. My noble friend mentioned holistic protection, which is very important.
There is no offline/online distinction these days. Women and girls should feel safe everywhere. I also want to say, because I know that my noble friend has had a letter, that this is not about saying that men and boys should not be safe online; it is about recognising the disproportionate levels of abuse that women and girls suffer.
I welcome the fact that, in producing this guidance, Ofcom will have to consult with the Domestic Abuse Commissioner and the Victims’ Commissioner and more widely. I look forward, as I am sure do all the organisations I just mentioned, to working with Ofcom on the first set of guidance that it will produce. It gives me great pleasure to have signed the amendment and to support its introduction.
Baroness Merron (Lab)
My Lords, this very positive government amendment acknowledges that there is not equality when it comes to online abuse. We know that women are 27 times more likely than men to be harassed online, that two-thirds of women who report abuse to internet companies do not feel heard, and three out of four women change their behaviour after receiving online abuse.
Like others, I am very glad to have added my name to support this amendment. I thank the Minister for bringing it before your Lordships’ House and for his introduction. It will place a requirement on Ofcom to produce and publish guidance for providers of Part 3 services in order to make online spaces safer for women and girls. As the noble Baroness, Lady Morgan, has said, while this is not a code of practice—and I will be interested in the distinction between the code of practice that was being called for and what we are expecting now—it would be helpful perhaps to know when we might expect to see it. As the noble Baroness, Lady Burt, just asked, what kind of timescale is applicable?
This is very much a significant step for women and girls, who deserve and seek specific protections because of the disproportionate amount of abuse received. It is crucial that the guidance take a holistic approach which focuses on prevention and tech accountability, and that it is as robust as possible. Can the Minister say whether he will be looking to the model of the Violence against Women and Girls Code of Practice, which has been jointly developed by a number of groups and individuals including Glitch, the NSPCC, 5Rights and Refuge? It is important that this be got right, that we see it as soon as possible and that all the benefits can be felt and seen.
Lord Parkinson of Whitley Bay (Con)
I am very grateful to everyone for the support they have expressed for this amendment both in the debate now and by adding their names to it. As I said, I am particularly grateful to my noble friend Lady Morgan, with whom we have worked closely on it. I am also grateful for her recognition that men and boys also face harm online, as she rightly points out. As we discussed in Committee, this Bill seeks to address harms for all users but we recognise that women and girls disproportionately face harm online. As we have discussed with the noble Baroness, Lady Merron, women and girls with other characteristics such as women of colour, disabled women, Jewish women and many others face further disproportionate harm and abuse. I hope that Amendment 152 demonstrates our commitment to giving them the protection they need, making it easy and clear for platforms to implement protections for them across all the wide-ranging duties they have.
The noble Baroness, Lady Burt of Solihull, asked why it was guidance and not a code of practice. Ofcom’s codes of practice will set out how companies can comply with the duties and will cover how companies should tackle the systemic risks facing women and girls online. Stipulating that Ofcom must produce specific codes for multiple different issues could, as we discussed in Committee, create duplication between the codes, causing confusion for companies and for Ofcom.
As Ofcom said in its letter to your Lordships ahead of Report, it has already started the preparatory work on the draft illegal content and child sexual abuse and exploitation codes. If it were required to create a separate code relating to violence against women and girls, this preparatory work would need to be revised, so there would be the unintended—and, I think, across the House, undesired—consequence of slowing down the implementation of these vital protections. I am grateful for the recognition that we and Ofcom have had on that point.
Instead, government Amendment 152 will consolidate all the relevant measures across codes of practice, such as on illegal content, child safety and user empowerment, in one place, assisting platforms to reduce the risk of harm that women and girls disproportionately face.
On timing, at present Ofcom expects that this guidance will be published in phase 3 of the implementation of the Bill, which was set out in Ofcom’s implementation plan of 15 June. This is when the duties in Part 4 of the Bill, relating to terms of service and so on, will be implemented. The guidance covers the duties in Part 4, so for guidance to be comprehensive and have the most impact in protecting women and girls, it is appropriate for it to be published during phase 3 of the Bill’s implementation.
The noble Baroness, Lady Fox, mentioned the rights of trans people and the rights of people to express their views. As she knows, gender reassignment and religious or philosophical belief are both protected characteristics under the Equality Act 2010. Sometimes those are in tension, but they are both protected in the law.
With gratitude to all the noble Lords who have expressed their support for it, I commend the amendment to the House.
Baroness Fox of Buckley (Non-Afl)
The Minister did not quite grasp what I said but I will not keep the House. Would he be prepared to accept recommendations for a broader consultation—or who do I address them to? It is important that groups such as the Women’s Rights Network and others, which suffer abuse because they say “I know what a woman is”, are talked to in a discussion on women and abuse, because that would be appropriate.
Lord Parkinson of Whitley Bay (Con)
I am sorry—yes, the noble Baroness made a further point on consultation. I want to reassure her and other noble Lords that Ofcom has the discretion to consult whatever body it considers appropriate, alongside the Victims’ Commissioner, the Domestic Abuse Commissioner and others who I mentioned. Those consultees may not all agree. It is important that Ofcom takes a range of views but is able to consult whomever. As I mentioned previously, Ofcom and its officers can be scrutinised in Parliament through Select Committees and in other ways. The noble Baroness could take it up directly with them but could avail herself of those routes for parliamentary scrutiny if she felt that her pleas were falling on deaf ears.
Lord Knight of Weymouth (Lab)
My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for raising this; it is important. Clause 49(3)(a)(i) mentions content
“generated directly on the service by a user”,
which, to me, implies that it would include the actions of another user in the metaverse. Sub-paragraph (ii) mentions content
“uploaded to or shared on the service by a user”,
which covers bots or other quasi-autonomous virtual characters in the metaverse. As we heard, a question remains about whether any characters or objects provided by the service itself are covered.
A scenario—in my imagination anyway—would be walking into an empty virtual bar at the start of a metaverse service. This would be unlikely to be engaging: the attractions of indulging in a lonely, morose drink at that virtual bar are limited. The provider may therefore reasonably configure the algorithm to generate characters and objects that are engaging until enough users then populate the service to make it interesting.
Of course, there is the much more straightforward question of gaming platforms. On Monday, I mentioned “Grand Theft Auto”, a game with an advisory age of 17—they are still children at that age—but that is routinely accessed by younger children. Shockingly, an article that I read claimed that it can evolve into a pornographic experience, where the player becomes the character from a first-person angle and received services from virtual sex workers, as part of the game design. So my question to the Minister is: does the Bill protect the user from these virtual characters interacting with users in virtual worlds?
Lord Parkinson of Whitley Bay (Con)
I will begin with that. The metaverse is in scope of the Bill, which, as noble Lords know, has been designed to be technology neutral and future-proofed to ensure that it keeps pace with emerging technologies—we have indeed come a long way since the noble Lord, Lord Clement-Jones, the noble Lords opposite and many others sat on the pre-legislative scrutiny committee for the Bill. Even as we debate, we envisage future technologies that may come. But the metaverse is in scope.
The Bill will apply to companies that enable users to share content online or to interact with each other, as well as search services. That includes a broad range of services, such as websites, applications, social media services, video games and virtual reality spaces, including the metaverse.
Any service that enables users to interact, as the metaverse does, will need to conduct a child access test and will need to comply with the child safety duties—if it is likely to be accessed by children. Content is broadly defined in the Bill as,
“anything communicated by means of an internet service”.
Where this is uploaded, shared or directly generated on a service by a user and able to be encountered by other users, it will be classed as user-generated content. In the metaverse, this could therefore include things like objects or avatars created by users. It would also include interactions between users in the metaverse such as chat—both text and audio—as well as images, uploaded or created by a user.
Lord Clement-Jones (LD)
My Lords, I hope I am not interrupting the Minister in full flow. He has talked about users entirely. He has not yet got to talking about what happens where the provider is providing that environment—in exactly the way in which the noble Lord, Lord Knight, illustrated.
Lord Parkinson of Whitley Bay (Con)
We talked about bots controlled by service providers before the noble Lord, Lord Knight, asked questions on this. The Bill is designed to make online service providers responsible for the safety of their users in light of harmful activities that their platforms might facilitate. Providers of a user-to-user service will need to adhere to their duties of care, which apply to all user-generated content present on their service. The Bill does not, however, regulate content published by user-to-user providers themselves. That is because the providers are liable for the content they publish on the service themselves. The one exception to this—as the noble Baroness, Lady Kidron, alluded to in her contribution—is pornography, which poses a particular risk to children and is regulated by Part 5 of the Bill.
I am pleased to reassure the noble Lord, Lord Clement- Jones, that the Bill—
Baroness Kidron (CB)
I thank the noble Lord for giving way. The Minister just said that private providers will be responsible for their content. I would love to understand what mechanism makes a provider responsible for their content?
Lord Parkinson of Whitley Bay (Con)
I will write to noble Lords with further information and will make sure that I have picked up correctly the questions that they have asked.
On Amendment 152A, which the noble Lord, Lord Clement-Jones, has tabled, I am pleased to assure him that the Bill already achieves the intention of the amendment, which seeks to add characters and objects that might interact with users in the virtual world to the Bill’s definition of user-generated content. Let me be clear again: the Bill already captures any service that facilitates online user-to-user interaction, including in the metaverse or other augmented reality or immersive online worlds.
The Bill broadly defines “content” as
“anything communicated by means of an internet service”,
so it already captures the various ways in which users may encounter content. Clause 211 makes clear that “encounter” in relation to content for the purposes of the Bill means to,
“read, view, hear or otherwise experience”
content. That definition extends to the virtual worlds which noble worlds have envisaged in their contributions. It is broad enough to encompass any way of encountering content, whether that be audio-visually or through online avatars or objects.
In addition, under the Bill’s definition of “functionality”,
“any feature that enables interactions of any description between users of the service”
will be captured. That could include interaction between avatars or interaction by means of an object in a virtual world. All in-scope services must therefore consider a range of functionalities as part of their risk assessment and must put in place any necessary measures to mitigate and manage any risks that they identify.
I hope that that provides some assurance to the noble Lord that the concerns that he has raised are covered, but I shall happily write on his further questions before we reach the amendment that the noble Baroness, Lady Finlay, rightly flagged in her contribution.
Lord Clement-Jones (LD)
I thank the Minister. I feel that we have been slightly unfair because we have been asking questions about an amendment that we have not been able to table. The Minister has perfectly well answered the actual amendment itself and has given a very positive reply—and in a sense I expected him to say what he said about the actual amendment. But, of course, the real question is about an amendment that I was unable to table.
Member’s explanatory statement
This amendment, and the next two amendments in my name, make it clear that an automated tool which is not a bot - as well as a bot - may be regarded as a user for the purposes of the definition of “user-generated content”.
“(ii) is video or audio content that was originally published or broadcast by a recognised news publisher, and is not a clipped or edited form of such content (unless it is the recognised news publisher who has clipped or edited it), or(iii) is a link to an article or item within sub-paragraph (i) or to content within sub-paragraph (ii).”Member’s explanatory statement
This amendment revises the definition of “news publisher content” so that, in particular, online content published by a recognised news publisher that has not first been broadcast is covered by the definition.
Lord Parkinson of Whitley Bay (Con)
My Lords, as noble Lords know, His Majesty’s Government are committed to defending the invaluable role of a free media, and our online safety legislation must protect the vital role of the press in providing people with reliable and accurate information online. That is why we have included strong protections for recognised news publishers in the Bill.
Clause 49(9) and (10) set out what is considered “news publisher content” in relation to a regulated user-to-user service, while Clause 52 sets out that news publishers’ content is exempt from search services’ duties. The government amendments clarify minor elements of these exemptions and definitions. Given the evolving consumption habits for news, recognised news publishers might clip or edit content from their published or broadcast versions to cater to different audiences and platforms. We want to ensure that recognised news publisher content is protected in all its forms, as long as that content is created or generated by the news publishers themselves.
First, our amendments clarify that any video or audio content published or broadcast by recognised news publishers will be exempt from the Bill’s safety duties and will benefit from the news publisher appeals process, when shared on platforms in scope of the Bill. These amendments ensure that old terminology works effectively in the internet age. The amendments now also make it clear that any news publisher content that is clipped or edited by the publisher itself will qualify for the Bill’s protections when shared by third parties on social media. However, these protections will not apply when a third-party user modifies that content itself. This will ensure that the protections do not apply to news publisher content that has been edited by a user in a potentially harmful way.
The amendments make it clear that the Bill’s protections apply to links to any article, video or audio content generated by recognised news publishers, clipped or edited, and regardless of the form in which that content was first published or broadcast. Taken together, these amendments ensure that our online safety legislation protects recognised news publishers’ content as intended. I hope noble Lords will support them. I beg to move.
Lord Parkinson of Whitley Bay (Con)
I reassure the noble Lord, Lord Stevenson, that he was right to sign the amendments; I am grateful that he did. I do not know whether it is possible to have a sense of déjà vu about debates that took place before one entered your Lordships’ House, but if so, I feel I have had it over the past hour. I am, however, glad to see the noble Lords, Lord Lipsey and Lord McNally, back in their places and that they have had the chance to express their views, which they were unable to do fully in Committee. I am grateful to noble Lords who have joined in that debate again.
At present, Amendment 159 would enable news publishers that are members of Impress, the sole UK regulator which has sought approval by the Press Recognition Panel, to benefit from the Bill’s protections for news publishers, without meeting the criteria set out in Clause 50(2). This would introduce a legislative advantage for Impress members over other news publishers. The amendment would, in effect, create strong incentives for publishers to join a specific press regulator. We do not consider that to be compatible with our commitment to a free press. To that end, as noble Lords know, we will repeal existing legislation that could have that effect, specifically Section 40 of the Crime and Courts Act 2013, through the media Bill, which was published recently.
Not only is creating an incentive for a publisher to join a specific regulator incompatible with protecting press freedom in the United Kingdom but it would undermine the aforementioned criteria. These have been drafted to be as robust as possible, with requirements including that organisations have publication of news as their principal purpose, that they are subject to a standards code and that their content is created by different persons. Membership of Impress, or indeed any other press regulator, does not and should not automatically ensure that these criteria are met.
Amendment 160 goes further by amending one of these criteria—specifically, the requirement for entities to be subject to a standards code. It would add the requirement that these standards codes be drawn up by a regulator, such as a body such as Impress. This amendment would create further incentives for news publishers to join a press regulator if they are to benefit from the exclusion for recognised news publishers. This is similarly not compatible with our commitment to press freedom.
We believe the criteria set out in Clause 50 of the Bill are already sufficiently strong, and we have taken significant care to ensure that only established news publishers are captured, while limiting the opportunity for bad actors to benefit.
The noble Lord, Lord Allan, asked about protections against that abuse by bad actors. The Bill includes protections for journalism and news publishers, given the importance of a free press in a democratic society. However, it also includes safeguards to prevent the abuse of these protections by bad actors. Platforms will still be able to remove recognised news publisher content that breaches their terms and conditions as long as they notify recognised news publishers and offer a right of appeal first. This means that content will remain online while the appeal is considered, unless it constitutes a relevant offence under the Bill or the platform would incur criminal or civil liability by hosting it. This marks a significant improvement on the status quo whereby social media companies can remove journalistic content with no accountability and little recourse for journalists to appeal.
We are clear that sanctioned news outlets such as RT must not benefit from these protections. We are amending the criteria for determining which entities qualify as recognised news publishers explicitly to exclude entities that are subject to sanctions. The criteria also exclude any entity that is a proscribed organisation under the Terrorism Act 2000 or whose purpose is to support an organisation that is proscribed under that Act. To require Ofcom or another party to assess standards would be to introduce press regulation by the back door.
The noble Baroness, Lady Fox of Buckley, asked about protecting clipped or edited content. Given evolving news consumption habits, recognised news publishers may clip or edit content from their published or broadcast versions to cater to different audiences and to be used on different platforms. We want to ensure recognised news publisher content is protected in all its forms as long as that content is still created or generated by the news publisher. For example, if a broadcaster shares a link to its shorter, online-only version of a long-form TV news programme or documentary on an in-scope platform, this should still benefit from the protections that the Bill affords. The amendment that we have brought forward ensures that this content and those scenarios remain protected but removes the risk of platforms being forced to carry news publisher content that has been edited by a third party potentially to cause harm. I hope that clarifies that.
I am grateful to the noble Lord, Lord Lipsey, for making it clear that he does not intend to press his amendments to a Division, so I look forward to that. I am also grateful for the support for the Government’s amendments in this group.
“(ii) is video or audio content that was originally published or broadcast by a recognised news publisher, and is not a clipped or edited form of such content (unless it is the recognised news publisher who has clipped or edited it), or(iii) is a link to an article or item within sub-paragraph (i) or to content within sub-paragraph (ii).”Member’s explanatory statement
This amendment ensures that, in particular, online content published by a recognised news publisher that has not first been broadcast is included in the list of content which does not count as search content for the purposes of the Bill.
Member’s explanatory statement
This technical amendment ensures that the new Clauses proposed to be inserted after Clause 54 in my name setting out which kinds of content count as primary priority content and priority content harmful to children apply for the purposes of Part 3 of the Bill.
““Primary priority content that is harmful to children”
(1) “Primary priority content that is harmful to children” means content of any of the following kinds. (2) Pornographic content, other than content within subsection (6).(3) Content which encourages, promotes or provides instructions for suicide.(4) Content which encourages, promotes or provides instructions for an act of deliberate self-injury.(5) Content which encourages, promotes or provides instructions for an eating disorder or behaviours associated with an eating disorder.(6) Content is within this subsection if it—(a) consists only of text, or(b) consists only of text accompanied by—(i) identifying content which consists only of text,(ii) other identifying content which is not itself pornographic content,(iii) a GIF which is not itself pornographic content,(iv) an emoji or other symbol, or(v) any combination of content mentioned in sub-paragraphs (i) to (iv).(7) In this section and section (“Priority content that is harmful to children”) “injury” includes poisoning.”Member’s explanatory statement
This amendment describes which kinds of content count as primary priority content harmful to children for the purposes of Part 3 of the Bill.
““Priority content that is harmful to children”
(1) “Priority content that is harmful to children” means content of any of the following kinds.(2) Content which is abusive and which targets any of the following characteristics—(a) race,(b) religion,(c) sex,(d) sexual orientation,(e) disability, or(f) gender reassignment.(3) Content which incites hatred against people—(a) of a particular race, religion, sex or sexual orientation,(b) who have a disability, or(c) who have the characteristic of gender reassignment.(4) Content which encourages, promotes or provides instructions for an act of serious violence against a person.(5) Bullying content.(6) Content which—(a) depicts real or realistic serious violence against a person;(b) depicts the real or realistic serious injury of a person in graphic detail.(7) Content which—(a) depicts real or realistic serious violence against an animal;(b) depicts the real or realistic serious injury of an animal in graphic detail;(c) realistically depicts serious violence against a fictional creature or the serious injury of a fictional creature in graphic detail. (8) Content which encourages, promotes or provides instructions for a challenge or stunt highly likely to result in serious injury to the person who does it or to someone else.(9) Content which encourages a person to ingest, inject, inhale or in any other way self-administer—(a) a physically harmful substance;(b) a substance in such a quantity as to be physically harmful.(10) In subsections (2) and (3)—(a) “disability” means any physical or mental impairment;(b) “race” includes colour, nationality, and ethnic or national origins;(c) references to religion include references to a lack of religion.(11) For the purposes of subsection (3), a person has the characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex, and the reference to gender reassignment in subsection (2) is to be construed accordingly.(12) For the purposes of subsection (5) content may, in particular, be “bullying content” if it is content targeted against a person which—(a) conveys a serious threat;(b) is humiliating or degrading;(c) forms part of a campaign of mistreatment.(13) In subsection (6) “person” is not limited to a real person.(14) In subsection (7) “animal” is not limited to a real animal.”Member’s explanatory statement
This amendment describes which kinds of content count as priority content harmful to children for the purposes of Part 3 of the Bill.
Member’s explanatory statement
This amendment omits Clause 55 (regulations describing kinds of content harmful to children), as the kinds of content are now set out in the Bill - see the new Clauses proposed to be inserted after Clause 54 in my name.
Member’s explanatory statement
This amendment and the next two amendments in my name omit references to regulations which are no longer needed, as primary priority content and priority content harmful to children are now set out in the new Clauses proposed to be inserted after Clause 54 in my name, not in regulations.
“(2A) The regulations may also—(a) require providers to retain, for a specified period, data of a specified description associated with a report, and(b) impose restrictions or requirements in relation to the retention of such data (including how the data is to be secured or stored or who may access the data).(2B) The power to require the retention of data associated with a report includes power to require the retention of—(a) content generated, uploaded or shared by any user mentioned in the report (or metadata relating to such content), and(b) user data relating to any such person (or metadata relating to such data).“User data” here has the meaning given by section 206.” Member’s explanatory statement
This amendment provides that regulations under this Clause may require a provider to retain data associated with a report sent to the NCA and impose restrictions or requirements in relation to the retention of the data.
Lord Parkinson of Whitley Bay (Con)
My Lords, child sexual exploitation or abuse is an abhorrent crime. Reporting allows victims to be identified and offenders apprehended. It is vital that in-scope companies retain the data included in reports made to the National Crime Agency. This will enable effective prosecutions and ensure that children can be protected.
The amendments in my name in this group will enable the Secretary of State to include in the regulations about the reporting of child sexual exploitation or abuse content a requirement for providers to retain data. This requirement will be triggered only by a provider making a report of suspected child sexual exploitation or abuse to the National Crime Agency. The provider will need to retain the data included in the report, along with any associated account data. This is vital to enabling prosecutions and to ensuring that children can be protected, because data in reports cannot be used as evidence. Law enforcement agencies request this data only when they have determined that the content is in fact illegal and that it is necessary to progress investigations.
Details such as the types of data and the period of time for which providers must retain this data will be specified in regulations. This will ensure that the requirement is future-proofed against new types of data and will prevent companies retaining types of data that may have become obsolete. The amendments will also enable regulations to include any necessary safeguards in relation to data protection. However, providers will be expected to store, process and share this personal data within the UK GDPR framework.
Regulations about child sexual exploitation or abuse reporting will undergo a robust consultation with relevant parties and will be subject to parliamentary scrutiny. This process will ensure that the regulations about retaining data will be well-informed, effective and fit for purpose. These amendments bring the child sexual exploitation and abuse reporting requirements into line with international standards. I beg to move.
Lord Allan of Hallam (LD)
My Lords, these seem very sensible amendments. I am curious about why they have arrived only at this stage, given this was a known problem and that the Bill has been drafted over a long period. I am genuinely curious as to why this issue has been raised only now.
On the substance of the amendments, it seems entirely sensible that, given that we are now going to have 20,000 to 25,000 regulated entities in scope, some of which will never have encountered child sexual exploitation or abuse material or understood that they have a legal duty in relation to it, it will be helpful for them to have a clear set of regulations that tell them how to treat their material.
Child sexual exploitation or abuse material is toxic in both a moral and a legal sense. It needs to be treated almost literally as toxic material inside a company, and sometimes that is not well understood. People feel that they can forward material to someone else, not understanding that in doing so they will break the law. I have had experiences where well-meaning people acting in a vigilante capacity sent material to me, and at that point you have to report them to police. There are no ifs or buts. They have committed an offence in doing so. As somebody who works inside a company, your computer has to be quarantined and taken off and cleaned, just as it would be for any other toxic material, because we framed the law, quite correctly, to say that we do not want to offer people the defence of saying “I was forwarding this material because I’m a good guy”. Forwarding the material is a strict liability offence, so to have regulations that explain, particularly to organisations that have never dealt with this material, exactly how they have to deal with it in order to be legally compliant will be extremely helpful.
One thing I want to flag is that there are going to be some really fundamental cross-border issues that have to be addressed. In many instances of child sexual exploitation or abuse material, the material has been shared between people in different jurisdictions. The provider may not be in a UK jurisdiction, and we have got to avoid any conflicts of laws. I am sure the Government are thinking about this, but in drafting those regulations, what we cannot do, for example, is order a provider to retain data in a way that would be illegal in the jurisdiction from which it originates or in which it has its headquarters. The same would apply vice versa. We would not expect a foreign Government to order a UK company to act in a way that was against UK law in dealing with child sexual exploitation or abuse material. This all has to be worked out. I hope the Government are conscious of that.
I think the public interest is best served if the United Kingdom, the United States and the European Union, in particular, adopt common standards around this. I do not think there is anything between us in terms of how we would want to approach child sexual exploitation or abuse material, so the extent to which we end up having common legal standards will be extraordinarily helpful.
As a general matter, to have regulations that help companies with their compliance is going to be very helpful. I am curious as to how we have got there with the amendment only at this very late stage.
Lord Knight of Weymouth (Lab)
My Lords, from this side we certainly welcome these government amendments. I felt it was probably churlish to ask why it had taken until this late stage to comply with international standards, but that point was made very well by the noble Lord, Lord Allan of Hallam, and I look forward to the Minister’s response.
Lord Parkinson of Whitley Bay (Con)
I am grateful to noble Lords for their support for these amendments and for their commitment, as expected, to ensuring that we have the strongest protections in the Bill for children.
The noble Lord, Lord Allan of Hallam, asked: why only now? It became apparent during the regular engagement that, as he would expect, the Government have with the National Crime Agency on issues such as this that this would be necessary, so we are happy to bring these amendments forward. They are vital amendments to enable law enforcement partners to prosecute offenders and keep children safe.
Reports received by the National Crime Agency are for intelligence only and so cannot be relied on as evidence. As a result, in some cases law enforcement agencies may be required to request that companies provide data in an evidential format. The submitted report will contain a limited amount of information from which law enforcement agencies will have to decide what action to take. Reporting companies may hold wider data that relate to the individuals featured in the report, which could allow law enforcement agencies to understand the full circumstances of the event or attribute identities to the users of the accounts.
The data retention period will provide law enforcement agencies with the necessary time to decide whether it is appropriate to request data in order to continue their investigations. I hope that explains the context of why we are doing this now and why these amendments are important ones to add to the Bill. I am very grateful for noble Lords’ support for them.
Member’s explanatory statement
This amendment is consequential on the other amendment to Clause 60 in my name.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsMonday 10th July 2023
(1 year, 1 month ago)
Lords ChamberRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 151-III Third marshalled list for Report - (10 Jul 2023)
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
We began this group on the previous day on Report, and I concluded my remarks, so it is now for other noble Lords to contribute on the amendments that I spoke to on Thursday.
Lord Bethell (Con)
My Lords, I rise emphatically to welcome the government amendments in this group. They are a thoughtful and fulsome answer to the serious concerns expressed from the four corners of the Chamber by a great many noble Lords at Second Reading and in Committee about the treatment of age verification for pornography and online harms. For this, I express my profound thanks to my noble friend the Minister, the Secretary of State, the Bill team, the Ofcom officials and all those who have worked so hard to refine this important Bill. This is a moment when the legislative team has clearly listened and done everything it possibly can to close the gap. It is very much the House of Lords at its best.
It is worth mentioning the exceptionally broad alliance of noble Lords who have worked so hard on this issue, particularly my compadres, my noble friend Lady Harding, the noble Baroness, Lady Kidron, and the right reverend Prelate the Bishop of Oxford, who all signed many of the draft amendments. There are the Front-Benchers, including the noble Lords, Lord Stevenson, Lord Knight, Lord Clement-Jones and Lord Allan of Hallam, and the noble Baroness, Lady Merron. There are the Back-Benchers behind me, including my noble friends Lady Jenkin and Lord Farmer, the noble Lords, Lord Morrow, Lord Browne and Lord Dodds, and the noble Baroness, Lady Foster. Of those in front of me, there are the noble Baronesses, Lady Benjamin and Lady Ritchie, and there is also a number too large for me to mention, from all across the House.
I very much welcome the sense of pragmatism and proportionality at the heart of the Online Safety Bill. I welcome the central use of risk assessment as a vital tool for policy implementation and the recognition that some harms are worse than others, that some children need more protection than others, that we are legislating for future technologies that we do not know much about and that we must engage industry to achieve effective implementation. As a veteran of the Communications Act 2003, I strongly support the need for enabling legislation that has agility and a broad amount of support to stand the test of time.
Lord Stevenson of Balmacara (Lab)
My Lords, this has been a good debate, perhaps unfairly curtailed in terms of the range of voices we have heard, but I am sure the points we wanted to have on the table are there and we can use them in summarising the debate we have had so far.
I welcome the Government’s amendments in this group. They have gone a long way to resolving a number of the difficulties that were left after the Digital Economy Act. As the noble Lord, Lord Clement-Jones, has said, we now have Part 3 and Part 5 hooked together in a consistent and effective way and definitions of “age verification” and “age estimation”. The noble Lord, Lord Grade, is sadly not in his place today—I normally judge the quality of the debate by the angle at which he resides in that top corner there. He is not here to judge it, but I am sure he would be upright and very excited by what we have been hearing so far. His point about the need for companies to be clearly responsible for what they serve up through their services is really important in what we are saying here today.
However, despite the welcome links across to the ICO age-appropriate design code, with the concerns we have been expressing on privacy there are still a number of questions which I think the Minister will want to deal with, either today or in writing. Several noble Lords have raised the question of what “proportionate” means in this area. I have mentioned it in other speeches in other groups. We all want the overall system to be proportionate in the way in which it allocates the powers, duties and responsibilities on the companies providing us with the services they do. But there is an exception for the question of whether children should have access to material which they should not get because of legal constraints, and I hope that “proportionate” is not being used in any sense to evade that.
I say that particularly because the concern has been raised in other debates—and I would be grateful if the Minister could make sure when he comes to respond that this issue is addressed—that smaller companies with less robust track records in terms of their income and expenditures might be able to plead that some of the responsibilities outlined in this section of the Bill do not apply to them because otherwise it would bear on their ability to continue. That would be a complete travesty of where we are trying to get to here, which is an absolute bar on children having access to material that is illegal or in the lists now in the Bill in terms of priority content.
The second worry that people have raised is: will the system that is set up here actually work in practice, particularly if it does not apply to all companies? That relates perhaps to the other half of the coin that I have just mentioned.
The third point, raised by a number of Peers, is: where does all this sit in relation to the review of pornography which was announced recently? A number of questions have been asked about issues which the Minister may be unable to respond to, but I suspect he may also want to write to us on the wider issue of timing and the terms of reference once they are settled.
I think we need to know this as we reach the end of the progress on this Bill, because you cannot expect a system being set up with the powers that are being given to Ofcom to work happily and well if Ofcom knows it is being reviewed at the same time. I hope that some consideration will be given to how we get the system up and running, even if the timescale is now tighter than it was, if at the same time a review rightly positioned to try to look at the wider range of pornography is going to impact on its work.
I want to end on the question raised by a large number of noble Lords: how does all this work sit with privacy? Where information and data are being shared on the basis of assuring access to services, there will be a worry if privacy is not ensured. The amendments tabled by the noble Baroness, Lady Kidron, are very salient to this. I look forward to the Minister’s response to them.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am sorry that the noble Baroness, Lady Benjamin, was unable to be here for the start of the debate on Thursday and therefore that we have not had the benefit of hearing from her today. I am very glad that she was here to hear the richly deserved plaudits from across the House for her years of campaigning on this issue.
I am very glad to have had the opportunity to discuss matters directly with her including, when it was first announced, the review that we have launched. I am pleased that she gave it a conditional thumbs up. Many of her points have been picked up by other noble Lords today. I did not expect anything more than a conditional thumbs up from her, given her commitment to getting this absolutely right. I am glad that she is here to hear some of the answers that I am able to set out, but I know that our discussions would have continued even if she had been able to speak today and that her campaigns on this important issue will not cease; she has been tireless in them. I am very grateful to her, my noble friends Lord Bethell and Lady Harding, the noble Baroness, Lady Kidron, and many others who have been working hard on this.
Let me pick up on their questions and those of the noble Baroness, Lady Ritchie of Downpatrick, and others on the review we announced last week. It will focus on the current regulatory landscape and how to achieve better alignment of online and offline regulation of commercial pornography. It will also look at the effectiveness of the criminal law and the response of the criminal justice system relating to pornography. This would focus primarily on the approach taken by law enforcement agencies and the Crown Prosecution Service, including considering whether changes to the criminal law would address the challenges identified.
The review will be informed by significant expert input from government departments across Whitehall, the Crown Prosecution Service and law enforcement agencies, as well as through consultation with the industry and with civil society organisations and regulators including, as the noble Baroness, Lady Ritchie, rightly says, some of the many NGOs that do important work in this area. It will be a cross-government effort. It will include but not be limited to input from the Ministry of Justice, the Home Office, the Department for Science, Innovation and Technology and my own Department for Culture, Media and Sport. I assure my noble friend Lord Farmer that other government departments will of course be invited to give their thoughts. It is not an exhaustive list.
I detected the enthusiasm for further details from noble Lords across the House. I am very happy to write as soon as I have more details on the review, to keep noble Lords fully informed. I can be clear that we expect the review to be complete within 12 months. The Government are committed to undertaking it in a timely fashion so that any additional safeguards for protecting UK users of online services can be put in place as swiftly as possible.
My noble friend Lord Bethell asked about international alignment and protecting Britain for investment. We continue to lead global discussions and engagement with our international partners to develop common approaches to online safety while delivering on our ambition to make the UK the safest place in the world to be online.
The noble Baroness, Lady Kidron, asked about the new requirements. They apply only to Part 3 providers, which allow pornography or other types of primary priority content on their service. Providers that prohibit this content under their terms of service for all users will not be required to use age verification or age estimation. In practice, we expect services that prohibit this content to use other measures to meet their duties, such as effective content moderation and user reporting. This would protect children from this content instead of requiring measures that would restrict children from seeing content that is not allowed on the service in the first place.
These providers can still use age verification and age estimation to comply with the existing duty to prevent children encountering primary priority content. Ofcom can still recommend age-verification and age-estimation measures in codes of practice for these providers where proportionate. On the noble Baroness’s second amendment, relating to Schedule 4, Ofcom may refer to the age-assurance principles set out in Schedule 4 in its children’s codes of practice.
On the 18-month timetable, I can confirm that 18 months is a backstop and not a target. Our aim is to have the regime in force as quickly as possible while making sure that services understand their new duties. Ofcom has set out in its implementation road map that it intends to publish draft guidance under Part 5 this autumn and draft children’s codes next spring.
The noble Baroness, Lady Ritchie, also asked about implementation timetables. I can confirm that Part 3 and Part 5 duties will be implemented at the same time. Ofcom will publish draft guidance shortly after Royal Assent for Part 5 duties and codes for the illegal content duties in Part 3. Draft codes for Part 3 children’s duties will follow in spring next year. Some Part 3 duties relating to category 1 services will be implemented later, after the categorisation thresholds have been set in secondary legislation.
The noble Lord, Lord Allan of Hallam, asked about interoperability. We have been careful to ensure that the Bill is technology neutral and to allow for innovation across the age-assurance market. We have also included a principle on interoperability in the new list of age-assurance principles in Schedule 4 and the Part 5 guidance.
At the beginning of the debate, on the previous day on Report, I outlined the government amendments in this group. There are some others, which noble Lords have spoken to. Amendments 125 and 217, from the noble Baroness, Lady Kidron, seek to add additional principles on user privacy to the new lists of age-assurance principles for both Part 3 and 5, which are brought in by Amendments 124 and 216. There are already strong safeguards for user privacy in the Bill. Part 3 and 5 providers will need to have regard to the importance of protecting users’ privacy when putting in place measures such as age verification or estimation. Ofcom will be required to set out, in codes of practice for Part 3 providers and in guidance for Part 5 providers, how they can meet these duties relating to privacy. Furthermore, companies that use age-verification or age-estimation solutions will need to comply with the UK’s robust data protection laws or face enforcement action.
Adding the proposed new principles would, we fear, introduce confusion about the nature of the privacy duties set out in the Bill. Courts are likely to assume that the additions are intended to mean something different from the provisions already in the Bill relating to privacy. The new amendments before your Lordships imply that privacy rights are unqualified and that data can never be used for more than one purpose, which is not the case. That would introduce confusion about the nature of—
Lord Clement-Jones (LD)
My Lords, I apologise to the Minister. Can he write giving chapter and verse for that particular passage by reference to the contents of the Bill?
Lord Parkinson of Whitley Bay (Con)
I am very happy to do that. That would probably be better than me trying to do so at length from the Dispatch Box.
Government Amendment 124 also reinforces the importance of protecting children’s privacy, including data protection, by ensuring that Ofcom will need to have regard to standards set out under Section 123 of the Data Protection Act 2018 in the age-appropriate design code. I hope that explains why we cannot accept Amendments 125 or 217.
The noble Baroness, Lady Fox, has Amendment 184 in this group and was unable to speak to it, but I am very happy to respond to it and the way she set it out on the Marshalled List. It seeks to place a new duty on Ofcom to evaluate whether internet service providers, internet-connected devices or individual websites should undertake user-identification and age-assurance checks. This duty would mean that such an evaluation would be needed before Ofcom produces guidance for regulated services to meet their duties under Clauses 16 and 72.
Following this evaluation, Ofcom would need to produce guidance on age-verification and age-assurance systems, which consider cybersecurity and a range of privacy considerations, to be laid before and approved by Parliament. The obligation for Ofcom to evaluate age assurance, included in the noble Baroness’s amendment, is already dealt with by Amendment 271, which the Government have tabled to place a new duty on Ofcom to publish a report on the effectiveness of age-assurance solutions. That will specifically include consideration of cost to business, and privacy, including the processing of personal data.
Lord Allan of Hallam (LD)
I just realised I forgot to thank the Government for Amendment 271, which reflected something I raised in Committee. I will reflect back to the Minister that, as is reinforced by his response now, it goes precisely where I wanted to. That is to make sure—I have raised this many times—that we are not implementing another cookie banner, but are implementing something and then going back to say, “Did it work as we intended? Were the costs proportionate to what we achieved?” I want to put on the record that I appreciate Amendment 271.
Lord Parkinson of Whitley Bay (Con)
I appreciate the noble Lord’s interjection and, indeed, his engagement on this issue, which has informed the amendments that we have tabled.
In relation to the amendment of the noble Baroness, Lady Fox, as I set out, there are already robust safeguards for user privacy in the Bill. I have already mentioned Amendment 124, which puts age-assurance principles in the Bill. These require Ofcom to have regard, when producing its codes of practice on the use of age assurance, to the principle of protecting the privacy of users, including data protection. We think that the noble Baroness’s amendment is also unnecessary. I hope that she and the noble Baroness, Lady Kidron, will be willing to not move their amendments and to support the government amendments in the group.
Lord Stevenson of Balmacara (Lab)
There is always a simple question. We are in a bit of a mess—again. When I said at Second Reading that I thought we should try to work together, as was picked up by the noble Baroness in her powerful speech, to get the best Bill possible out of what we had before us, I really did not know what I was saying. Emotion caught me and I ripped up a brilliant speech which will never see the light of day and decided to wing it. I ended up by saying that I thought we should do the unthinkable in this House—the unthinkable in politics, possibly—and try to work together to get the Bill to come right. As the noble Lord, Lord Clement-Jones, pointed out, I do not think I have ever seen, in my time in this House, so many government amendments setting out a huge number of what we used to call concessions. I am not going to call them concessions—they are improvements to the Bill. We should pay tribute to the Minister, who has guided his extensive team, who are listening anxiously as we speak, in the good work they have been doing for some time, getting questioned quite seriously about where it is taking us.
The noble Lord, Lord Clement-Jones, is quite right to pick up what the pre-legislative scrutiny committee said about this aspect of the work we are doing today and what is in the Bill. We have not really nailed the two big things that social media companies ask: this amplification effect, where a single tweet—or thread, let us call it now—can go spinning around the world and gather support, comment, criticism, complaint, anger and all sorts of things that we probably do not really understand in the short period of time it takes to be read and reacted to. That amplification is not something we see in the real world; we do not really understand it and I am not quite sure we have got to the bottom of where we should be going at this stage.
The second most important point—the point we are stuck on at the moment; this rock, as it were, in the ocean—is the commercial pressure which, of course, drives the way in which companies operate. They are in it for the money, not the social purpose. They did not create public spaces for people to discuss the world because they think it is a good thing. There is no public service in this—this is a commercial decision to get as much money as possible from as many people as possible and, boy, are they successful.
But commercial pressures can have harms; they create harms in ways that we have discussed, and the Bill reflects many of those. This narrow difference between the way the Bill describes content, which is meant to include many of the things we have been talking about today—the four Cs that have been brought into the debate helpfully in recent months—does not really deal with the commercial pressures under which people are placed because of the way in which they deal with social media. We do not think the Bill is as clear as it could be; nor does it achieve as much as it should in trying to deal with that issue.
That is in part to do with the structure. It is almost beyond doubt that the sensibility of what we are trying to achieve here is in the Bill, but it is there at such a level of opacity that it does not have the clarity of the messages we have heard today from those who have spoken about individuals—Milly and that sort of story—and the impact on people. Even the noble Lord, Lord Bethell, whose swimming exploits we must admire, is an unwitting victim of the drive of commercial pressures that sees him in his underwear at inappropriate moments in order that they should seek the profits from that. I think it is great, but I wonder why.
I want to set the Minister a task: to convince us, now that we are at the bar, that when he says that this matter is still in play, he realises what that must imply and will give us a guarantee that we will be able to gain from the additional time that he seeks to get this to settle. There is a case, which I hope he will agree to, for having in the Bill an overarching statement about the need to separate out the harms that arise from content and the harms that arise from the system discussions and debates we have been having today where content is absent. I suggest that, in going back to Clause 1, the overarching objectives clause, it might well be worth seeing whether that might be strengthened so that it covers this impact, so that the first thing to read in the Bill is a sense that we embrace, understand and will act to improve this question of harm arising absent content. There is a case for putting into Clauses 10, 11, 25 and 82 the wording in Amendments 35, 36, 37A and 240, in the name of the noble Baroness, Lady Kidron, and to use those as a way of making sure that every aspect of the journey through which social media companies must go to fulfil the duties set out in the Bill by Ofcom reflects both the content that is received and the design choices made by those companies in bringing forward those proposals for material content harms and the harms that arise from the design choices. Clauses 208 and 209 also have to provide a better consideration of how one describes harms so that they are not always apparently linked to content.
That is a very high hurdle, particularly because my favourite topic of how this House works will be engaged. We have, technically, already passed Clause 1; an amendment was debated and approved, and now appears in versions of the Bill. We are about to finish with Clauses 10 and 11 today, so we are effectively saying to the Minister that he must accept that there are deficiencies in the amendments that have already been passed or would be, if we were to pass Amendments 35, 36, 37A, 85 and 240 in the name of the noble Baroness, Lady Kidron, and others. It is not impossible, and I understand that it would be perfectly reasonable, for the Government to bring back a series of amendments on Third Reading reflecting on the way in which the previous provisions do not fulfil the aspirations expressed all around the House, and therefore there is a need to change them. Given the series of conversations throughout this debate—my phone is red hot with the exchanges taking place, and we do not have a clear signal as to where that will end up—it is entirely up to the Minister to convince the House whether these discussions are worth it.
To vote on this when we are so close seems ridiculous, because I am sure that if there is time, we can make this work. But time is not always available, and it will be up to the Minister to convince us that we should not vote and up to the noble Baroness to decide whether she wishes to test the opinion of the House. We have a three-line Whip on, and we will support her. I do not think that it is necessary to vote, however—we can make this work. I appeal to the Minister to get over the bar and tell us how we are to do it.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am very grateful for the discussion we have had today and the parallel discussions that have accompanied it, as well as the many conversations we have had, not just over the months we have been debating the Bill but over the past few days.
I will turn in a moment to the amendments which have been the focus of the debate, but let me first say a bit about the amendments in this group that stand in my name. As noble Lords have kindly noted, we have brought forward a number of changes, informed by the discussions we have had in Committee and directly with noble Lords who have taken an interest in the Bill for a long time.
Government Amendments 281C, 281D, 281E and 281G relate to the Bill’s interpretation of “harm”, which is set out in Clause 209. We touched on that briefly in our debate on Thursday. The amendments respond to concerns which I have discussed with many across your Lordships’ House that the Bill does not clearly acknowledge that harm and risk can be cumulative. The amendments change the Bill to make that point explicit. Government Amendment 281D makes it clear that harm may be compounded in instances where content is repeatedly encountered by an individual user. That includes, but is not limited to, instances where content is repeatedly encountered as a result of algorithms or functionalities on a service. Government Amendment 281E addresses instances in which the combination of multiple functionalities on a service cumulatively drives up the risk of harm.
Those amendments go hand in hand with other changes that the Government have made on Report to strengthen protections for children. Government Amendment 1, for instance, which we discussed at the beginning of Report, makes it clear that services must be safe by design and that providers must tackle harms which arise from the design and operation of their service. Government Amendments 171 and 172 set out on the face of the Bill the categories of “primary priority” and “priority” content which is harmful to children to allow the protections for children to be implemented as swiftly as possible following Royal Assent. As these amendments demonstrate, the Government have indeed listened to concerns which have been raised from all corners of your Lordships’ House and made significant changes to strengthen the Bill’s protections for children. I agree that it has been a model of the way in which your Lordships’ House operates, and the Bill has benefited from it.
Let me turn to the amendments in the name of the noble Baroness, Lady Kidron. I am very grateful for her many hours of discussion on these specific points, as well as her years of campaigning which led to them. We have come a long way and made a lot of progress on this issue since the discussion at the start of Committee. The nature of online risk versus harm is one which we have gone over extensively. I certainly accept the points that the noble Baroness makes; I know how heartfelt they are and how they are informed by her experience sitting in courtrooms and in coroners’ inquests and talking to people who have had to be there because of the harms they or their families have encountered online. The Government are firmly of the view that it is indisputable that a platform’s functionalities, features or wider design are often the single biggest factor in determining whether a child will suffer harm. The Bill makes it clear that functions, features and design play a key role in the risk of harm occurring to a child online; I draw noble Lords’ attention to Clause 11(5), which makes it clear that the child safety duties apply across all areas of a service, including the way it is designed, operated and used, as well as content present on the service. That makes a distinction between the design, operation and use, and the content.
In addition, the Bill’s online safety objectives include that regulated services should be designed and operated so as to protect from harm people in the United Kingdom who are users of the service, including with regard to algorithms used by the service, functionalities of the services and other features relating to the operation of the service. There is no reference to content in this section, again underlining that the Bill draws a distinction.
This ensures that the role of functionalities is properly accounted for in the obligations on providers and the regulator, but I accept that noble Lords want this to be set out more clearly. Our primary aim must be to ensure that the regulatory framework can operate as intended, so that it can protect children in the way that they deserve and which we all want to see. Therefore, we cannot accept solutions that, however well meaning, may inadvertently weaken the Bill’s framework or allow providers to exploit legal uncertainty to evade their duties. We have come back to that point repeatedly in our discussions.
Member’s explanatory statement
This amendment is consequential on the next amendment of Clause 11 in my name.
“(3A) The duty set out in subsection (3)(a) requires a provider to use age verification or age estimation (or both) to prevent children of any age from encountering primary priority content that is harmful to children which the provider identifies on the service.(3B) That requirement applies to a provider in relation to a particular kind of primary priority content that is harmful to children in every case except where—(a) a term of service indicates (in whatever words) that the presence of that kind of primary priority content that is harmful to children is prohibited on the service, and(b) that policy applies in relation to all users of the service.(3C) If a provider is required by subsection (3A) to use age verification or age estimation for the purpose of compliance with the duty set out in subsection (3)(a), the age verification or age estimation must be of such a kind, and used in such a way, that it is highly effective at correctly determining whether or not a particular user is a child.”Member’s explanatory statement
This amendment requires providers of user-to-user services to use age verification or age estimation to prevent children from encountering identified primary priority content that is harmful to children, unless the terms of service indicate that that kind of content is prohibited; and where that requirement applies, new subsection (3C) provides that the age verification or age estimation must be highly effective.
Lord Knight of Weymouth (Lab)
My Lords, as we have heard, this is a small group of amendments concerned with preventing size and lack of capacity being used as a reasonable excuse for allowing children to be unsafe. Part of the problem is the complexity of the Bill and the way it has been put together.
For example, Clause 11, around user-to-user services, is the pertinent clause and it is headed “Safety duties protecting children”. Clause 11(2) is preceded in italics with the wording “All services” so anyone reading it would think that what follows applies to all user-to-user services regardless of size. Clause 11(3) imposes a duty on providers
“to operate a service using proportionate systems and processes”
to protect children from harm. That implies that there will be judgment around what different providers can be expected to do to protect children; for example, by not having to use a particular unaffordable technical solution on age assurance if they can show the right outcome by doing things differently. That starts to fudge things a little.
The noble Lord, Lord Bethell, who introduced this debate so well with Amendment 39, supported by my noble friend Lady Ritchie, wants to be really sure that the size of the provider can never be used to argue that preventing all children from accessing porn is disproportionate and that a few children slipping through the net might just be okay.
The clarity of Clause 11 unravels even further at the end of the clause, where in subsection (12)(b) it reads that
“the size and capacity of the provider of a service”
is relevant
“in determining what is proportionate”.
The clause starts to fall apart at that point quite thoroughly in terms of anyone reading it being clear about what is supposed to happen.
Amendment 43 seeks to take that paragraph out, as we have heard from the noble Lord, Lord Russell, and would do the same for search in Amendment 87. I have added my name to these amendments because I fear that the ambiguity in the wording of this clause will give small and niche platforms an easy get out from ensuring that children are safe by design.
I use the phrase “by design” deliberately. We need to make a choice with this Bill even at this late stage. Is the starting point in the Bill children’s safety by design? Or is the starting point one where we do not want to overly disrupt the way providers operate their business first—which is to an extent how the speech from the noble Lord, Lord Allan, may have been heard—and then overlay children’s safety on top of that?
Yesterday, I was reading about how children access inappropriate and pornographic content, not just on Twitter, Instagram, Snapchat, TikTok and Pinterest but on Spotify and “Grand Theft Auto”—the latter being a game with an age advisory of “over 17” but which is routinely played by teenaged children. Wherever we tolerate children being online, there are dangers which must be tackled. Listening to the noble Baroness, Lady Harding, took me to where a big chunk of my day job in education goes to—children’s safeguarding. I regularly have to take training in safeguarding because of the governance responsibilities that I have. Individual childminders looking after one or two children have an assessment and an inspection around their safeguarding. In the real world we do not tolerate a lack of safety for children in this context. We should not tolerate it in the online world either.
The speech from the noble Lord, Lord Russell, reminded me of the breadcrumbing from big platforms into niche platforms that is part of that incel insight that he referenced. Content that is harmful to children can also be what some children are looking for, which keeps them engaged. Small, emergent services aggressively seeking growth could set algorithms accordingly. They must not be allowed to believe that engaging harmful content is okay until they get to the size that they need to be to afford the age-assurance technology which we might envisage in the Bill. I hope that the Minister shares our concerns and can help us with this problem.
Lord Parkinson of Whitley Bay (Con)
My Lords, short debates can be helpful and useful. I am grateful to noble Lords who have spoken on this group.
I will start with Amendment 39, tabled by my noble friend Lord Bethell. Under the new duty at Clause 11(3)(a), providers which allow pornography or other forms of primary priority content under their terms of service will need to use highly effective age verification or age estimation to prevent children encountering it where they identify such content on their service, regardless of their size or capacity. While the size and capacity of providers is included as part of a consideration of proportionality, this does not mean that smaller providers or those with less capacity can evade the strengthened new duty to protect children from online pornography. In response to the questions raised by the noble Baronesses, Lady Ritchie of Downpatrick and Lady Kidron, and others, no matter how much pornographic content is on a service, where providers do not prohibit this content they would still need to meet the strengthened duty to use age verification or age estimation.
Proportionality remains relevant for the purposes of providers in scope of the new duty at Clause 11(3)(a) only in terms of the age-verification or age-estimation measures that they choose to use. A smaller provider with less capacity may choose to go for a less costly but still highly effective measure. For instance, a smaller provider with less capacity might seek a third-party solution, whereas a larger provider with greater capacity might develop their own solution. Any measures that providers use will need to meet the new high bar of being “highly effective”. If a provider does not comply with the new duties and fails to use measures which are highly effective at correctly determining whether or not a particular user is a child, Ofcom can take tough enforcement action.
The other amendments in this group seek to remove references to the size and capacity of providers in provisions relating to proportionality. The principle of proportionate, risk-based regulation is fundamental to the Bill’s regulatory framework, and we consider that the Bill as drafted already strikes the correct balance. The Bill ultimately will regulate a large number of services, ranging from some of the biggest companies in the world to smaller, voluntary organisations, as we discussed in our earlier debate on exemptions for public interest services.
The provisions regarding size and capacity recognise that what it is proportionate to require of companies of various sizes and business models will be different. Removing this provision would risk setting a lowest common denominator standard which does not create incentives for larger technology companies to do more to protect their users than smaller organisations. For example, it would not be proportionate for a large multinational company which employs thousands of content moderators and which invests in significant safety technologies to argue that it is required to take only the same steps to comply as a smaller provider which might have only a handful of employees and a few thousand UK users.
While the size and capacity of providers is included as part of a consideration of proportionality, let me be clear that this does not mean that smaller providers or those with less capacity do not need to meet the child safety duties and other duties in the Bill, such as the illegal content safety duties. These duties set out clear requirements for providers. If providers do not meet these duties, they will face enforcement action.
I hope that is reassuring to my noble friend Lord Bethell and to the other noble Lords with amendments in this group. I urge my noble friend to withdraw his amendment.
Lord Bethell (Con)
My Lords, I thank my noble friend the Minister for that reassurance. He put the points extremely well. I very much welcome his words from the Dispatch Box, which go a long way towards clarifying and reassuring.
This was a short and perfectly formed debate. I will not go on a tour d’horizon of everyone who has spoken but I will mention the noble Lord, Lord Allan of Hallam. He is entirely right that no one wants gratuitously to hound out businesses from the UK that contribute to the economy and to our life here. There are good regulatory principles that should be applied by all regulators. The five regulatory principles of accountability, transparency, targeting, consistency and proportionality are all in the Legislative and Regulatory Reform Act 2006. Ofcom will embrace them and abide by them. That kind of reassurance is important to businesses as they approach the new regulatory regime.
I take on board what my noble friend the Minister said in terms of the application of regulations regardless of size or capacity, and the application of these strengthened duties, such as “highly effective”, regardless of any economic or financial capacity. I feel enormously reassured by what he has said. I beg leave to withdraw my amendment.
Member’s explanatory statement
This amendment refers to age verification and age estimation as mentioned in the preceding amendment in my name, and clarifies the relationship between Clause 11(4) and new subsection (3A) of Clause 11 inserted by that amendment.
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 11 into two Clauses.
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 11 into two Clauses.
“Assessment duties: user empowerment
(1) This section sets out the duties about assessments related to adult user empowerment which apply in relation to Category 1 services (in addition to the duties about risk assessments set out in section 8 and, in the case of Category 1 services likely to be accessed by children, section 10).(2) A duty to carry out a suitable and sufficient assessment for the purposes of section 12(2) at a time set out in, or as provided by, Schedule 3.(3) A duty to take appropriate steps to keep such an assessment up to date.(4) Before making any significant change to any aspect of a service’s design or operation, a duty to carry out a further suitable and sufficient assessment for the purposes of section 12(2) relating to the impacts of that proposed change.(5) An assessment of a service “for the purposes of section 12(2)” means an assessment of the following matters—(a) the user base;(b) the incidence of relevant content on the service;(c) the likelihood of adult users of the service encountering, by means of the service, each kind of relevant content (with each kind separately assessed), taking into account (in particular) algorithms used by the service, and how easily, quickly and widely content may be disseminated by means of the service;(d) the likelihood of adult users with a certain characteristic or who are members of a certain group encountering relevant content which particularly affects them;(e) the likelihood of functionalities of the service facilitating the presence or dissemination of relevant content, identifying and assessing those functionalities more likely to do so;(f) the different ways in which the service is used, and the impact of such use on the likelihood of adult users encountering relevant content;(g) how the design and operation of the service (including the business model, governance, use of proactive technology, measures to strengthen adult users’ control over their interaction with user-generated content, and other systems and processes) may reduce or increase the likelihood of adult users encountering relevant content.(6) In this section “relevant content” means content to which section 12(2) applies (content to which user empowerment duties set out in that provision apply).(7) See also—(a) section 19(8A) and (9) (records of assessments), and(b) Schedule 3 (timing of providers’ assessments).” Member’s explanatory statement
This amendment requires providers of Category 1 services to carry out and update as necessary an assessment about how likely it is that adult users will encounter content to which Clause 12(2) applies (suicide and self-harm content and so on - see Clause 12(10), (11) and (12)).
Member’s explanatory statement
This amendment is a technical drafting change related to the next amendment in my name.
“(4A) A duty to operate a service using a system or process which seeks to ensure that all registered adult users are offered the earliest possible opportunity, in relation to each control feature included in the service, to take a step indicating to the provider that—(a) the user wishes to retain the default setting for the feature (whether that is that the feature is in use or applied, or is not in use or applied), or(b) the user wishes to change the default setting for the feature.(4B) The duty set out in subsection (4A)—(a) continues to apply in relation to a user and a control feature for so long as the user has not yet taken a step mentioned in that subsection in relation to the feature;(b) no longer applies in relation to a user once the user has taken such a step in relation to every control feature included in the service.”Member’s explanatory statement
This amendment imposes a new duty on providers of Category 1 services to proactively ask all registered adult users whether they wish to opt in or opt out of any features offered in compliance with the duty in subsection (2), until a choice is made.
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 12 into two Clauses.
Member’s explanatory statement
This amendment provides that a provider can only conclude that children cannot access a service if age verification or age estimation is used on the service with the result that children are not normally able to access it.
Member’s explanatory statement
This amendment is about complaints of content being blocked because of an incorrect assessment of a user’s age. A reference to Clause 11(2) is inserted, as the duty in that provision can also be complied with by using age verification or age estimation.
Lord Stevenson of Balmacara (Lab)
It is always nice to be nice to the Minister.
I will reference, briefly, the introduction of the amendments in the name of the noble Baroness, Lady Fraser of Craigmaddie, which I signed. They were introduced extremely competently, as you would expect, by my noble and learned kinsman Lord Hope. It is important to get the right words in the right place in Bills such as this. He is absolutely right to point out the need to be sure that we are talking about the right thing when we say “freedom of expression”—that we do mean that and not “freedom of speech”; we should not get them mixed up—and, also, to have a consistent definition that can be referred to, because so much depends on it. Indeed, this group might have run better and more fluently if we had started with this amendment, which would have then led into the speeches from those who had the other amendments in the group.
The noble Baroness is not present today, but not for bad news: for good news. Her daughter is graduating and she wanted to be present at that; it is only right that she should do that. She will be back to pick up other aspects of the devolution issues she has been following very closely, and I will support her at that time.
The debate on freedom of expression was extremely interesting. It raised issues that, perhaps, could have featured more fully had this been timetabled differently, as both noble Lords who introduced amendments on this subject said. I will get my retaliation in first: a lot of what has been asked for will have been done. I am sure that the Minister will say that, if you look at the amendment to Clause 1, the requirement there is that freedom of expression is given priority in the overall approach to the Bill, and therefore, to a large extent, the requirement to replace that at various parts of the Bill may not be necessary. But I will leave him to expand on that; I am sure that he will.
Other than that, the tension I referred to in an earlier discussion, in relation to what we are made to believe about the internet and the social media companies, is that we are seeing a true public square, in which expressions and opinions can be exchanged as freely and openly as they would be in a public space in the real world. But, of course, neither of those places really exists, and no one can take the analogy further than has been done already.
The change, which was picked up by the noble Baroness, Lady Stowell, in relation to losing “legal but harmful”, has precipitated an issue which will be left to social media companies to organise and police—I should have put “policing” in quotation marks. As the noble Baroness, Lady Kidron, said, the remedy for much of this will be an appeals mechanism that works both at the company level and for the issues that need rebalancing in relation to complexity or because they are not being dealt with properly. We will not know that for a couple of years, but at least that has been provided for and we can look forward to it. I look forward to the Minister’s response.
Lord Parkinson of Whitley Bay (Con)
My Lords, I hope that the noble Baroness, Lady Fox, and my noble friend Lord Moylan do feel that they have been listened to. It was striking, in this debate, that they had support from all corners of your Lordships’ House. I know that, at various points in Committee, they may have felt that they were in a minority, but they have been a very useful and welcome one. This debate shows that many of the arguments that they have made throughout the passage of the Bill have resonated with noble Lords from across the House.
Although I have not signed amendments in the names of the noble Baroness and my noble friend Lord Moylan, in many cases it is not because I disagree with them but because I think that what they do is already covered in the Bill. I hope to reassure them of that in what I say now.
Amendments 77 to 81 from the noble Baroness, Lady Fox, would require services to have particular regard to freedom of expression and privacy when deciding on their terms of service. Services will already need to have particular regard to users’ rights when deciding on safety systems to fulfil their duties. These requirements will be reflected in providers’ terms of service, as a result of providers’ duties to set out their safety measures in their terms of service. The framework will also include a range of measures to allow scrutiny of the formulation, clarity and implementation of category 1 providers’ own terms of service.
However, there are some points on which we disagree. For instance, we do not think that it would be appropriate for all providers to have a general duty to have a particular regard to freedom of expression when deciding on their own terms of service about content. We believe that the Bill achieves the right balance. It requires providers to have regard to freedom of expression when carrying out their safety duties, and it enables public scrutiny of terms of service, while recognising providers’ own freedom of expression rights as private entities to set the terms of service that they want. It is of course up to adults to decide which services to use based on the way those services are drawn up and the way the terms of service set out what is permissible in them.
Nothing in the Bill restricts service providers’ ability to set their own terms and conditions for legal content accessed by adults—that is worth stressing. Ofcom will not set platforms’ terms and conditions, nor will it take decisions on whether individual pieces of content should, or should not, be on a platform. Rather, it will ensure that platforms set clear terms and conditions, so that adults know what to expect online, and ensure that platforms have systems and processes in place to enforce those terms and conditions themselves.
Amendment 226 from the noble Baroness, Lady Fox, would require providers to use all relevant information that is reasonably available to them whenever they make judgments about content under their terms of service. That is, where they have included or drafted those terms of service in compliance with duties in the Bill. Her amendment would be to an existing requirement in Clause 173, which already requires providers to take this approach whenever they implement a system or process to comply, and this system is making judgments about certain content. For example, Clause 173 already covers content judgments made via systems and processes that a category 1 provider implements to fulfil its Clause 65 duties to enforce its own terms of service consistently. So we feel that Clause 173 is already broad enough to achieve the objectives that the noble Baroness, Lady Fox, seeks.
My noble friend Lord Moylan’s amendments seek to require Ofcom to have special regard to the importance of protecting freedom of expression when exercising its enforcement duties and when drafting codes or guidance. As we discussed in Committee, Ofcom has existing obligations to protect freedom of expression, and the Bill will include additional measures in this regard. We are also making additional amendments to underline the importance of freedom of expression. I am grateful to the noble and learned Lord, Lord Hope of Craighead, and my noble friend Lady Fraser of Craigmaddie for their work to define “freedom of expression” in the Bill. The Bill’s new overarching statement at Clause 1, as the noble Lord, Lord Stevenson, rightly pointed out, lists “freedom of expression”, signalling that it is a fundamental part of the Bill. That is a helpful addition.
Amendment 188 in the name of the noble Baroness, Lady Fox, seeks to disapply platforms’ Clause 65 duties when platforms’ terms of service restrict lawful expression, or expression otherwise protected by Article 10 of the European Convention on Human Rights. Her amendment would mean that category 1 providers’ Clause 65 duties to enforce clear, accessible terms of service in a consistent manner would not apply to any of their terms of service, where they are making their own decisions restricting legal content. That would greatly undermine the application of these provisions in the Bill.
Article 10 of the European Convention on Human Rights concerns individuals’ and entities’ rights to receive and impart ideas without undue interference by public authorities, not private entities. As such, it is not clear how a service provider deciding not to allow a certain type of content on its platform would engage the Article 10 rights of a user.
Beyond the legal obligations regarding the treatment of certain kinds of user-generated content imposed by this Bill and by other legislation, platforms are free to decide what content they wish, or do not wish, to have on their services. Provisions in the Bill will set out important duties to ensure that providers’ contractual terms on such matters are clear, accessible and consistently enforced.
Lord Moylan (Con)
My Lords, before my noble friend sits down, perhaps I could seek a point of clarification. I think I heard him say, at the beginning of his response to this short debate, that providers will be required to have terms of service which respect users’ rights. May I ask him a very straightforward question: do those rights include the rights conferred by Article 10 of the European Convention on Human Rights? Put another way, is it possible for a provider operating in the United Kingdom to have terms and conditions that abridge the rights conferred by Article 10? If it is possible, what is the Government’s defence of that? If it is not possible, what is the mechanism by which the Bill achieves that?
Lord Parkinson of Whitley Bay (Con)
As I set out, I think my noble friend and the noble Baroness, Lady Fox, are not right to point to the European Convention on Human Rights here. That concerns individuals’ and entities’ rights
“to receive and impart ideas without undue interference”
by public authorities, not private entities. We do not see how a service provider deciding not to allow certain types of content on its platform would engage the Article 10 rights of the user, but I would be very happy to discuss this further with my noble friend and the noble Baroness in case we are talking at cross-purposes.
Lord Allan of Hallam (LD)
On that point specifically, having worked inside one of the companies, they fear legal action under all sorts of laws, but not under the European Convention on Human Rights. As the Minister explained, it is for public bodies; if people are going to take a case on Article 10 grounds, they will be taking it against a public body. There are lots of other grounds to go after a private company but not ECHR compliance.
“(8A) A duty to make and keep a written record, in an easily understandable form, of all aspects of every assessment under section (Assessment duties: user empowerment) (assessments related to the adult user empowerment duty set out in section 12(2)), including details about how the assessment was carried out and its findings.”Member’s explanatory statement
This amendment requires providers of Category 1 services to keep full records of their assessments under the new Clause proposed after Clause 11 in my name.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsMonday 10th July 2023
(1 year, 1 month ago)
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Member’s explanatory statement
This amendment has the effect that OFCOM have a duty to review compliance by user-to- user service providers with the new duties imposed by the Clause proposed after Clause 67 in my name.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, as I set out in Committee, the Government are bringing forward a package of amendments to address the challenges that bereaved parents and coroners have faced when seeking to access data after the death of a child.
These amendments have been developed after consultation with those who, so sadly, have first-hand experience of these challenges. I thank in particular the families of Breck Bednar, Sophie Parkinson, Molly Russell, Olly Stephens and Frankie Thomas for raising awareness of the challenges they have faced when seeking access to information following the heartbreaking cases involving their children. I am also grateful to the noble Baroness, Lady Kidron, for championing this issue in Parliament and more widely. I am very happy to say that she is supporting the government amendments in this group.
The loss of any life is heartbreaking, but especially so when it involves a child. These amendments will create a more straightforward and humane process for accessing data and will help to ensure that parents and coroners receive the answers they need in cases where a child’s death may be related to online harms. We know that coroners have faced challenges in accessing relevant data from online service providers, including information about a specific child’s online activity, where that might be relevant to an investigation or inquest. It is important that coroners can access such information.
As such, I turn first to Amendments 246, 247, 249, 250, 282, 283 and 287, which give Ofcom an express power to require information from regulated services about a deceased child’s online activity following a request from a coroner. This includes the content the child had viewed or with which he or she had engaged, how the content came to be encountered by the child, the role that algorithms and other functionalities played, and the method of interaction. It also covers any content that the child generated, uploaded or shared on the service.
Crucially, this power is backed up by Ofcom’s existing enforcement powers, so that, where a company refuses to provide information requested by Ofcom, companies may be subject to enforcement action, including senior management liability. To ensure that there are no barriers to Ofcom sharing information with coroners, first, Amendment 254 enables Ofcom to share information with a coroner without the prior consent of a business to disclose such information. This will ensure that Ofcom is free to provide information it collects under its existing online safety functions to coroners, as well as information requested specifically on behalf of a coroner, where that might be useful in determining whether social media played a part in a child’s death.
Secondly, coroners must have access to online safety expertise, given the technical and fast-moving nature of the industry. As such, Amendment 273 gives Ofcom a power to produce a report dealing with matters relevant to an investigation or inquest, following a request from a coroner. This may include, for example, information about a company’s systems and processes, including how algorithms have promoted specific content to a child. To this end, the Chief Coroner’s office will consider issuing non-statutory guidance and training for coroners about social media as appropriate, subject to the prioritisation of resources. We are confident that this well-established framework provides an effective means to provide coroners with training on online safety issues.
It is also important that we address the lack of transparency from large social media services about their approach to data disclosure. Currently, there is no common approach to this issue, with some services offering memorialisation or contact-nomination processes, while others seemingly lack any formal policy. To tackle this, a number of amendments in this group will require the largest services—category 1, 2A and 2B services—to set out policies relating to the disclosure of data regarding the online activities of a deceased child in a clear, accessible and sufficiently detailed format in their terms of service. These companies will also be required to provide a written response to data requests in a timely manner and must provide a dedicated helpline, or similar means, for parents to communicate with the company, in order to streamline the process. This will address the painful radio silence experienced by many bereaved parents. The companies must also offer options so that parents can complain when they consider that a platform is not meeting its obligations. These must be easy to access, easy to use and transparent.
The package of amendments will apply not only to coroners in England and Wales but also to Northern Ireland and equivalent investigations in Scotland, where similar sad events have occurred.
The Government will also address other barriers which are beyond the scope of this Bill. For example, we will explore measures to introduce data rights for bereaved parents who wish to request information about their deceased children through the Data Protection and Digital Information Bill. We are also working, as I said in Committee, with our American counterparts to clarify and, where necessary, address unintended barriers to information sharing created by the United States Stored Communications Act. I beg to move.
Baroness Kidron (CB)
My Lords, I thank the Minister and indeed the Secretary of State for bringing forward these amendments in the fulsome manner that they have. I appreciate it, but I know that Bereaved Families for Online Safety also appreciates it. The Government committed to bringing forward these amendments on the last day in Committee, so they have been pre-emptively welcomed and discussed at some length. One need only read through Hansard of 22 June to understand the strength of feeling about the pain that has been caused to families and the urgent need to prevent others experiencing the horror faced by families already dealing with the loss of their child.
I will speak briefly on three matters only. First, I must once again thank bereaved families and colleagues in this House and in the other place for their tireless work in pressing this issue. This is one of those issues that does not allow for celebration. As I walked from the Chamber on 22 June, I asked one of the parents how they felt. They said: “It is too late for me”. It was not said in bitterness but in acknowledgement of their profound hurt and the failure of companies voluntarily to do what is obvious, moral and humane. I ask the Government to see the sense in the other amendments that noble Lords brought forward on Report to make children safer, and make the same, pragmatic, thoughtful solution to those as they have done on this group of amendments. It makes a huge difference.
Secondly, I need to highlight just one gap; I have written to the Secretary of State and the Minister on this. I find it disappointing that the Government did not find a way to require senior management to attend an inquest to give evidence. Given that the Government have agreed that senior managers should be subject to criminal liability under some circumstances, I do not understand their objections to summoning them to co-operate with legal proceedings. If a company submits information in response to Ofcom and at the coroner’s request the company’s senior management is invited to attend the inquest, it makes sense that someone should be required to appear to answer and follow up those questions. Again, on behalf of the bereaved families and specifically their legal representatives, who are very clear on the importance of this part of the regime, I ask the Government to reconsider this point and ask the Minister to undertake to speak to the department and the MoJ, if necessary, to make sure that, if senior managers are asked to attend court, they are mandated to do so.
Thirdly, I will touch on the additional commitments the Minister made beyond the Bill, the first of which is the upcoming Data Protection and Digital Information Bill. I am glad to report that some of the officials working on the Bill have already reached out, so I am grateful to the Minister that this is in train, but I expect it to include guidance for companies that will, at a minimum, cover data preservation orders and guidance about the privacy of other users in cases where a child has died. I think that privacy for other users is central to this being a good outcome for everybody, and I hope we are able to include that.
I am pleased to hear about the undertaking with the US regarding potential barriers, and I believe—and I would love to hear from the Minister—that the objective is to make a bilateral agreement that would allow data to be shared between the two countries in the case of a child’s death. It is very specific requirement, not a wide-ranging one. I believe, if we can do it on a bilateral basis, it would be easier than a broad attempt to change the data storage Act.
I turn finally to training for coroners. I was delighted that the Chief Coroner made a commitment to consider issuing non-legislative guidance and training on social media for coroners and the offer of consultation with experts, including Ofcom, the ICO and bereaved families and their representatives, but this commitment was made subject to funding. I ask the Minister to agree to discuss routes to funding from the levy via Ofcom’s digital literacy duty. I have proposed an amendment to the government amendment that would make that happen, but I would welcome the opportunity to discuss it with the Minister. Coroners must feel confident in their understanding of the digital world, and I am concerned that giving this new route to regulated companies via Ofcom without giving them training on how to use it may create a spectre of failure or further frustration and distress for bereaved families. I know there is not a person in the House who would want that to be the outcome of these welcome government amendments.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful for the recognition of the work that has been done here, led by the noble Baroness, Lady Kidron, but involving many others, including officials who have worked to bring this package forward.
Noble Lords took the opportunity to ask a number of questions. The noble Baroness, Lady Kidron, asked about senior management liability. Ofcom will have extensive enforcement powers at its disposal if service providers do not comply with its information requests issued on behalf of a coroner. The powers will include the ability to hold senior managers criminally liable for non-compliance. Those powers are in line with Ofcom’s existing information-gathering powers in the Bill. Where Ofcom has issued an information request to a company, that company may be required to name a senior manager who is responsible for ensuring compliance with the requirements of the notice. If the named senior manager is found to have failed to comply with that information notice, or has failed to take all reasonable steps to prevent a failure to comply with the notice, that individual will be held personally liable and could be subject to imprisonment.
On the point about them not appearing in court, coroners have well-established powers to require senior managers to attend court. The enforcement powers available to Ofcom are in line with Ofcom’s existing information-gathering powers in the Bill. They do not extend to Ofcom requiring senior managers to appear in court as part of a coronial investigation. We do not think that would be appropriate for Ofcom, given that the coroner’s existing remit already covers this. The noble Baroness raised many specific instances that had come to her attention, and if she has specific examples of people not attending court that she would like to share with us and the Ministry of Justice, of course we would gladly follow those up.
The noble Lord, Lord Knight, rightly mentioned my noble friend Lady Newlove. I can reassure him that I have discussed this package of amendments with her, and had the benefit of her experience as a former Victims’ Commissioner.
On the training for coroners, which is an issue she raised, as did the noble Baroness, Lady Kidron, in her remarks just now, the Chief Coroner for England and Wales has statutory responsibility for maintaining appropriate arrangements for the training of coroners. That is of course independent of government, and exercised through the Judicial College, but the training is mandatory and the Chief Coroner is aware of the issues we are debating now.
The noble Lords, Lord Allan of Hallam and Lord Knight of Weymouth, raised the helpline for parents. Yes, we expect our approach of requiring a dedicated helpline or similar means will involve a human. As we say, we want a more humane process for those who need to use it; we think it would be more effective than requiring a company to provide a named individual contact. We touched on this briefly in Committee, where the point was raised, understandably, about staff turnover or people being absent on leave—that a requirement for a named individual could hinder the contact which families need to see there.
The noble Lord, Lord Allan, also asked some questions about deaths of people other than a child. First, Ofcom’s report in connection with investigations into a death covers any coronial inquest, not just children. More broadly, of course, social media companies may have their own terms and conditions or policies in place setting out when they will share information after somebody has passed away. Companies based outside the UK may have to follow the laws of the jurisdiction in which they are based, which may limit the sharing of data without a court order. While we recognise the difficulty that refusing to disclose data may cause for bereaved relatives in other circumstances, the right to access must, of course, be balanced with the right to privacy. Some adult social media users may be concerned, for instance, about the thought of family members having access to information about their private life after their deaths, so there is a complexity here, as I know the noble Lord understands.
The noble Baroness, Lady Kidron, asked about data preservation orders. I am very glad that officials from another Bill team are already in touch with her, as they should be. As we set out in Committee, we are aware of the importance of data preservation to coroners and bereaved parents, and the Government agree with the principle of ensuring that those data are preserved. We will work towards a solution through the Data Protection and Digital Information Bill. My noble friend Lord Camrose—who is unable to be with us today, also for graduation reasons—and I will be happy to keep the House and all interested parties updated about our progress in resolving the issue of data preservation as we work through this complex problem.
The noble Lord, Lord Clement-Jones, asked about the Information Commissioner’s Office. We expect Ofcom to consult the ICO on all the guidance where its expertise will be relevant, including on providers’ new duties under these amendments. I am grateful, as I say, for the support that they have had and the recognition that this has been a long process since these issues were first raised in the pre-legislative committee. We believe that it is of the utmost importance that coroners and families can access information about a child’s internet use following a bereavement, and that companies’ responses are made in a humane and transparent way.
This group of amendments should be seen alongside the wider protections for children in the Bill, and I hope they will help bereaved parents to get the closure that they deserve. The noble Lord, Lord Allan, was right to pay tribute to how these parents, who have campaigned so bravely, have turned their grief and frustration into a determination to make sure that no other parents go through the sorts of ordeals that they have. That is both humbling and inspiring, and I am glad that the Bill can help to be a part of the change that they are seeking. I share my noble friend Lady Harding’s wish that it may bring them a modicum of calm. I beg to move.
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 25 into two Clauses.
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 25 into two Clauses.
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 25 into two Clauses.
Member’s explanatory statement
This amendment is about complaints of content being blocked because of an incorrect assessment of a user’s age. A reference to Clause 25(2) is inserted, as the duty in that provision can also be complied with by using age verification or age estimation.
and for the purposes of subsection (6), also includes the duties set out in section (Disclosure of information about use of service by deceased child users) (deceased child users).”Member’s explanatory statement
This amendment has the effect that OFCOM have a duty to review compliance by search service providers with the new duties imposed by the Clause proposed after Clause 67 in my name.
Member’s explanatory statement
This amendment provides that a provider can only conclude that children cannot access a service if age verification or age estimation is used on the service with the result that children are not normally able to access it.
Lord Clement-Jones (LD)
My Lords, very briefly, I commend these two amendments. Again, the provenance is very clear; the Joint Committee said:
“This regulatory alignment would simplify compliance for businesses, whilst giving greater clarity to people who use the service, and greater protection to children.”
It suggested that the Information Commissioner’s Office and Ofcom should issue a joint statement on how these two regulatory systems will interact once the Online Safety Bill has been enacted. That still sounds eminently sensible, a year and a half later.
Lord Parkinson of Whitley Bay (Con)
My Lords, Amendments 100 and 101 seek further to define the meaning of “significant” in the children’s access assessment, with the intention of aligning this with the meaning of “significant” in the Information Commissioner’s draft guidance on the age-appropriate design code.
I am grateful to the noble Baroness, Lady Kidron, for the way in which she has set out the amendments and the swiftness with which we have considered it. The test in the access assessment in the Bill is already aligned with the test in the code, which determines whether a service is likely to be accessed by children in order to ensure consistency for all providers. The Information Commissioner’s Office has liaised with Ofcom on its new guidance on the likely to access test for the code, with the intention of aligning the two regulatory regimes while reflecting that they seek to do different things. In turn, the Bill will require Ofcom to consult the ICO on its guidance to providers, which will further support alignment between the tests. So while we agree about the importance of alignment, we think that it is already catered for.
With regard to Amendment 100, Clause 30(4)(a) already states that
“the reference to a ‘significant’ number includes a reference to a number which is significant in proportion to the total number of United Kingdom users of a service”.
There is, therefore, already provision in the Bill for this being a significant number in and of itself.
On Amendment 101, the meaning of “significant” must already be more than insignificant by its very definition. The amendment also seeks to define “significant” with reference to the number of children using a service rather than seeking to define what is a significant number.
I hope that that provides some reassurance to the noble Baroness, Lady Kidron, and that she will be content to withdraw the amendment.
Baroness Kidron (CB)
I am not sure that, at this late hour, I completely understood what the Minister said. On the basis that we are seeking to align, I will withdraw my amendment, but can we check that we are aligned as my speech came directly from a note from officials that showed a difference? On that basis, I am happy to withdraw.
Member’s explanatory statement
This amendment is consequential on the amendment of clause 30 in my name.
“5A (1) In this paragraph “the relevant day”, in relation to a regulated user-to- user service, means—(a) the first day on which the service is a Category 1 service, or (b) the first day on which the service again becomes a Category 1 service (following a period during which the service was not a Category 1 service).(2) If, on the relevant day, section 12(2) guidance is available, a section 12(2) assessment of the service must be completed within the period of three months beginning with that day.(3) Sub-paragraph (4) applies if—(a) on the relevant day, the first section 12(2) guidance has not yet been published, and(b) immediately before the publication of that guidance, the service is still a Category 1 service.(4) The first section 12(2) assessment of the service must be completed within the period of three months beginning with the day on which the first section 12(2) guidance is published.”Member’s explanatory statement
This amendment and the rest of the amendments of Schedule 3 in my name provide for the timing of the first assessments under the new Clause proposed after Clause 11 in my name.
“Content of codes of practice: age assurance
11A (1) This paragraph is about the inclusion of age assurance in a code of practice as a measure recommended for the purpose of compliance with any of the duties set out in section 11(2) or (3) or 25(2) or (3), and sub- paragraph (2) sets out some further principles, in addition to those in paragraphs 1 and 2 (general principles) and 10(2) (freedom of expression and privacy), which are particularly relevant.(2) In deciding whether to recommend the use of age assurance, or which kinds of age assurance to recommend, OFCOM must have regard to the following—(a) the principle that age assurance should be effective at correctly identifying the age or age-range of users;(b) relevant standards set out in the latest version of the code of practice under section 123 of the Data Protection Act 2018 (age- appropriate design code);(c) the need to strike the right balance between—(i) the levels of risk and the nature, and severity, of potential harm to children which the age assurance is designed to guard against, and(ii) protecting the right of users and (in the case of search services or the search engine of combined services) interested persons to freedom of expression within the law;(d) the principle that more effective kinds of age assurance should be used to deal with higher levels of risk of harm to children;(e) the principle that age assurance should be easy to use, including by children of different ages and with different needs;(f) the principle that age assurance should work effectively for all users regardless of their characteristics or whether they are members of a certain group;(g) the principle of interoperability between different kinds of age assurance. (3) In a code of practice that describes measures for the purpose of compliance with the duty set out in section 11(3)(a), OFCOM must recommend (among other things) age verification or age estimation which is such of a kind, and which is to be used in such a way, that it is highly effective at correctly determining whether or not a particular user is a child (see section 11(3C)).(4) In deciding which kinds and uses of age verification or age estimation to recommend for the purpose of compliance with the duty set out in section 11(3)(a), OFCOM must have regard to their guidance under section 73 that gives examples of kinds and uses of age verification and age estimation that are, or are not, highly effective at correctly determining whether or not a particular user is a child.(5) Nothing in sub-paragraph (2) is to be read as allowing OFCOM to recommend, for the purpose of compliance with the duty set out in section 11(3)(a) by providers subject to the requirement in section 11(3A), a kind or use of age verification or age estimation which does not meet the requirement to be highly effective as mentioned in section 11(3C).(6) A code of practice that recommends the use of age assurance for the purpose of compliance with the duties set out in section 11(2) or (3) must also describe measures recommended for the purpose of compliance with the duties set out in—(a) section 11(6), (8) and (10) (inclusion of clear information in terms of service), and(b) section 17(2) and (3)(see, in particular, section 17(5)(e) (complaints about age assurance)).(7) A code of practice that recommends the use of age assurance for the purpose of compliance with the duties set out in section 25(2) or (3) must also describe measures recommended for the purpose of compliance with the duties set out in—(a) section 25(5) and (8) (inclusion of clear information in publicly available statement), and(b) section 27(2) and (3)(see, in particular, section 27(5)(d) (complaints about age assurance)).(8) A code of practice may—(a) refer to industry or technical standards for age assurance (where they exist);(b) elaborate on the principles mentioned in paragraphs (a) and (c) to (g) of sub-paragraph (2).(9) In this paragraph “age assurance” means age verification or age estimation, and see in particular section (“Age verification” and “age estimation”) (4) (self-declaration of age not to be regarded as age verification or age estimation).”Member’s explanatory statement
This amendment contains provisions which relate to OFCOM’s recommendation of age assurance in codes of practice for the purposes of Part 3 of the Bill. It includes some relevant principles and makes it clear that OFCOM must recommend highly effective age assurance in connection with the duty in Clause 11(3)(a) (preventing children from encountering primary priority content that is harmful to children).
Member’s explanatory statement
This amendment is a minor drafting change to omit a superfluous word.
Creative Industries (Communications and Digital Committee Report)
Lord Parkinson of Whitley Bay Excerpts(1 year, 1 month ago)
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The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, this has indeed been an excellent debate. I agree with the noble Lord, Lord Griffiths of Burry Port, that it has been an uplifting way to end what has been a long and busy week in your Lordships’ House. Like everyone who has spoken, I am very grateful to my noble friend Lady Stowell of Beeston for tabling this debate and for how she opened it and outlined the work of your Lordships’ committee. I am in the slightly unusual position of having been a DCMS Minister when the department began the inquiry and when it reported but having in the interim sat briefly on the committee, so I can join with the deserved plaudits which were raised for my noble friend on how she chairs that committee, the remarks that have been made about the cross-party and consensual way that it operates, and the regret which was shared by all that the noble Baroness, Lady Featherstone, could not be here to join in our debate today.
As everyone who has spoken knows, the creative industries make an invaluable contribution to this country, as an economic powerhouse and by enriching the lives of everyone that they touch in the UK and around the world. As many noble Lords have noted, the creative industries have grown one-and-a-half times as quickly as the rest of the economy between 2010 and 2019, generating £108 billion in GVA in 2021. Their growth in terms of jobs has been even more marked. Their strong performance and potential is why my right honourable friend the Chancellor selected them as one of his five priority sectors in the 2022 Autumn Statement. I am grateful to my noble friend Lady Stowell for her recognition of the renewed level of political attention and support that the creative industries have across government.
The report of your Lordships’ committee has been timely as well as important. We share a passion for ensuring that we have a thriving, growing creative sector. The Secretary of State and I were delighted to receive the committee’s letter welcoming the publication of the Government’s Creative Industries Sector Vision. I agree with my noble friend Lord Vaizey that it may not have the glitziest name, but the sector vision is just that. It is a forward look and a starting point for us to work with the industry on the goals and objectives outlined in it. It marks a commitment between government and industry, which come together through the Creative Industries Council, to take action, for us to build on the solid foundations of the sector deal which was announced in 2018 to meet our jointly agreed goals by 2030. These are to:
“Grow creative clusters across the UK, adding £50 billion more in Gross Value Added … Build a highly-skilled, productive and inclusive workforce for the future, supporting one million more jobs across the UK … Maximise the positive impact of the creative industries on people, communities, the environment, and the UK’s global standing”.
We have demonstrated our commitment to the sector by providing over £300 million in support since 2021. The sector vision itself was supported by a further £77 million of funding. This will go to supporting key industry priorities, including ones which noble Lords have highlighted today, such as the importance of live-music venues. We have provided £5 million to expand Arts Council England’s support for live-music venues. The noble Lord, Lord Watson of Invergowrie, is right to highlight the important work that it does in supporting emerging artists. As with the sector deal in 2018, we expect these public commitments to unleash even larger amounts of private investment across the sector.
I am delighted that my noble friend Lord Vaizey was here to remind us of how much positive news there is across the creative industries, as well as to issue the challenge for us to tell our story more proudly. I am grateful for his kind words and for jinxing my career prospects in government. I feel about him as TS Eliot did about Ezra Pound in his dedication to The Wasteland, “il miglior fabbro”.
But we know that this diverse and dynamic sector delivers high-value, high-skilled jobs, from advertising to theatre, publishing to film and much more besides. It sets us apart on the international stage, distributing British content across the globe and enhancing our soft power, through talent, cutting-edge technologies and infrastructure, and strong intellectual property frameworks. We have made great progress but, as your Lordships’ committee points out, there is more to do. I will pick up on some of the issues raised in the debate and in the committee’s report.
The creative industries are a remarkably innovative sector and have been at the forefront of developments in artificial intelligence and immersive technology for many years. This crossover, also known as “createch”, has become especially prominent in recent months, with advances in AI technology. As my noble friend Lady Stowell reminded us, Ai-Da the robot was a star witness in the committee’s proceedings. The creative industries have been key users of AI for many years, in sectors such as video games, publishing and advertising. AI has enormous potential to deliver high-quality jobs and opportunities and to enable further growth in the creative industries.
However, it is important that we harness the benefits of AI while also managing the risks, including in the domain of copyright, which many noble Lords spoke about. It is vital that creatives are fairly compensated for their work—the noble Lord, Lord Berkeley of Knighton, spoke powerfully about the challenges and some of the numbers involved in doing that. The UK has world-leading protections for copyright and intellectual property. We know how important maintaining these are for the success of our creative industries, and we understand creators’ concerns when their work is used by artificial intelligence without their consent.
The noble Earl, Lord Clancarty, asked for an update on our work in this area. The government response to the Vallance Pro-innovation Regulation of Technologies Review in March confirmed that we would seek to develop a code of practice on copyright and to allow AI innovators and the creative industries to grow together in partnership. We want rights holders to be assured that AI firms will use their content appropriately and lawfully, and we want to ensure that AI-generated outputs are labelled appropriately to provide confidence in the origin of creative content.
We want to take a balanced and pragmatic approach. As my noble friend Lady Stowell noted, the Intellectual Property Office is working with representatives from across the creative industries, as well as AI firms, to develop good practice, guidance and other measures that support this goal. Those working-group meetings are happening as we speak, and officials from DCMS are observing them and attending an informal project board with colleagues from the Department for Science, Innovation and Technology and the Intellectual Property Office. The IPO is aiming to publish a principles-based code in draft before the Summer Recess, and it will outline next steps in this work.
Noble Lords talked about the importance of creator remuneration in music. We have always supported industry-led approaches—legislation is often not the best answer, and it is certainly rarely the swiftest. For example, with music streaming, the industry has worked together to produce an industry commitment to improve metadata and is close to reaching an agreement on transparency. Similarly, we think that an industry working group is the best way to reach a consensus on creator remuneration, building on the steps that individual companies have already taken.
The music industry is already a major driver of economic growth and investment in the UK, and the Government are eager to ensure that it remains globally competitive. That is why, in the sector vision, the Government trebled funding for the music exports growth scheme to £3.2 million over the next two years, helping emerging artists to break into new global markets and to ensure that the UK’s music sector remains one of the biggest music exporters in the world. This week, we had the very welcome news from the BPI that UK music exports jumped 20% last year to break £700 million for the first time.
Businesses also need to be able to invest in order to grow, and tax can be just as important in their growth cycle as access to finance. A number of noble Lords talked about the importance of tax reliefs. We recognise the importance of competitive creative industries tax reliefs to provide incentives in the screen sector in the UK. In 2021-22, a total of £989 million was paid out across our tax reliefs for film, television and video games, supporting over 1,800 productions and games.
The Government are committed to ensuring that our audiovisual tax reliefs remain world-leading and continue to best serve the needs of creative companies. Reforms to those tax reliefs, announced by the Chancellor at the Budget, will ensure that the tax system continues to drive growth and delivers on our commitment to build an enterprise economy, as well as bringing greater clarity to businesses about eligible productions. We want to work closely with the VFX sector on boosting growth and supporting a pipeline of talent into this cutting-edge UK industry.
Thanks to the redoubtable campaigning and effective evidence marshalling of the sector, the Budget this spring extended the higher rates of tax reliefs for theatres, orchestras, museums and galleries by two years, estimated to be worth £350 million collectively. I have already heard from theatres and producers about the difference it is making in terms of the creative risks they are able to take and the programming they are now doing for the months ahead.
My noble friend Lord Vaizey of Didcot asked about R&D tax reliefs, which are a vital part of growing businesses across the UK. As he knows, the UK is unique in having two R&D schemes: one for large businesses, and one for smaller businesses. Earlier this year, my noble friend will have seen that the Government ran a consultation which sought views on a simplified R&D tax relief scheme, merging the two schemes. The Government are considering their response to the consultation and will publish draft legislation on a merged scheme for the technical consultation. My noble friend, however, will have to wait for a fiscal event to hear more about the work which may flow from it.
My noble friend was also right to remind us of the importance of conservatoires and centres of excellence. Like the noble Baroness, Lady Merron, I look forward to the Yehudi Menuhin event later this year. I had the pleasure of going to one of the school leavers’ concerts with my noble friend Lord Blackwell last year. It really was remarkable. I began today by visiting Camberwell College of Arts, which has nurtured and developed world-leading arts and creativity in this country for 125 years. I went to its MA show to see some of the current postgraduate students’ work.
In the 2021-22 academic year, the Department for Education asked the Office for Students to invest an additional £10 million in our world-leading specialist providers. We have maintained that level of funding at £58 million for the current academic year.
Noble Lords rightly noted the creative industries’ impact on broad swathes of our lives as well as the economy. We know that this means it is more than just DCMS which has a role to play in providing support for our creative industries. I was much taken with the analogy given by the noble Lord, Lord Berkeley, of the Government as an orchestra and his desire to hear a more synchronous sound from us. The committee’s report is correct that a plan on its own is not enough and cross-departmental collaboration will be key to its success. However, I am delighted to say that we have made excellent progress in this area, as shown by the breadth of commitments contained in the sector vision. We are working with His Majesty’s Treasury on new funding for the sector; with the Department for Science, Innovation and Technology on cutting edge R&D through the CoSTAR programme and the next wave of creative clusters; with the Department for Business and Trade on boosting creative exports; and with the Department for Education to build the talent pipeline, through a range of skills and education initiatives.
I certainly agree with the noble Baroness, Lady Rebuck, that the skills pipeline is of critical importance to our creative industries. That is why I am delighted that this week we have announced further members of the panel who will be working with the wonderful noble Baroness, Lady Bull, to develop a cultural education plan for the Government. She has been working incredibly hard on it. I attended one of the listening exercises she held a few weeks ago and I was at the Royal Opera House to attend the head teachers’ symposium, where we gathered further thoughts to feed into it. I will begin next week at the Department for Education, meeting the whole panel with the noble Baroness. Furthermore, the upcoming round table on apprenticeships will be co-chaired by both the Education Secretary and my right honourable friend the Secretary of State for DCMS.
My department is working closely with the Department for Education and with the industry to drive forward the work to build a highly skilled workforce and support 1 million more jobs across the UK. We will publish the cultural education plan later this year and deliver the national plan for music education, driven by my noble friend Lady Fleet. That included £25 million in capital funding for musical instruments. We will explore opportunities for enrichment activities as part of our wraparound childcare provision. We will improve creative apprenticeships, with regards to small and medium enterprise engagement, training provision and the effectiveness and sustainability of the flexi-job model. We will support the rollout of T-levels, and complementary high-quality, employer-led level 3 qualifications, and we will work with the industry so that it can take advantage of skills boot camps at national and regional levels, and benefit from new local skills improvement plans and the lifelong loan entitlement in 2025.
Noble Lords asked for more detail on the creative careers programme. They are right that there can be a lack of understanding about jobs in the creative industries, such as over the sheer availability of roles that there are. For instance, it takes some 500 different jobs to make a single blockbuster movie. There are also misconceptions about the stability and accessibility of creative jobs, which is why the work that we are doing in the sector vision aims to improve understanding and challenge those misconceptions, including through the Discover Creative Careers programme.
The noble Lord, Lord Clement-Jones, was right to highlight the importance of freelancers in the creative industries. Last month we had a very good debate focused specifically on them. The policy and evidence centre delivered its independent review of job quality and working practices in the creative industries earlier this year, and that was co-funded by DCMS. The Government and the industry will set out an action plan to address the recommendations later in the year.
The noble Lord, Lord Foster of Bath, asked about the benefits system and how it interacts with freelancers in the creative sector. Again, we touched on that in the debate last month, and I know that Equity is holding an event next week. Unfortunately, I will be in the Chamber as we work on the Online Safety Bill, but I am glad that it is coming to engage colleagues from across the House and from the departments for work and education on it.
I will take back the idea from the noble Baroness, Lady Bonham-Carter, about the Education Secretary joining the Creative Industries Council but, as she may well know, Sir Peter Bazalgette, who jointly chairs it, is a non-executive director at the Department for Education, which helps with that join-up across government. I will also take back to colleagues in the Department for Education the point made by the noble Earl, Lord Clancarty, about the dichotomy with the Russell group universities.
Tackling skills gaps and shortages through all these initiatives is work that is being done. It requires significant evidence and data, which is another area on which we are working with the Department for Education. Our understanding of the creative industries through evidence and data is constantly expanding. Where gaps remain, such as forecasting skills needs, the DfE’s Unit for Future Skills is working to fill them, in partnership with analysts at DCMS and the Creative Industries Policy and Evidence Centre. Furthermore, inspired by the BFI’s film and high-end TV skills review, the Creative Industries Council has committed to delivering subsector skills reviews over the next year, giving a clearer picture of the gaps and shortages particular to each subsector of the creative industries.
I am incredibly proud of the creative industries sector—
Lord Clement-Jones (LD)
The Minister has covered a great deal of ground, but he has not covered the implementation of the Beijing treaty and the performing rights issues in the light of AI, or some of the other IP issues. Will he write?
Lord Parkinson of Whitley Bay (Con)
I will, although I may not be able to say much more than I am happy to say now in response to the noble Lord. The discussions on the code of practice are ongoing, and a public update will follow shortly; if it follows shortly enough for me to write with more detail, I will. If not, I hope he will be satisfied with that for now.
Many questions were noted in the debate over the past three hours, and I have tried to cover as many of them as I can. As noble Lords noted, the report touched on huge numbers of areas but also highlighted further areas for us all to explore in government and in your Lordships’ committee. I am very proud of the work that we are doing through the creative industries sector vision and, if I may say so, as a former member of the committee, I am very proud of the report that your Lordships’ committee has published.
The clear passion was evident from every noble Lord who spoke in this debate, and their anxiety to get this right for the future. Perhaps, on a sunny Friday, I may also say that I detected notes of optimism, both in the tributes being paid to new and established schools, at Old Street and in Camden. I hope that they will allow some of that optimism to extend to the work being done in government. I look forward to working with noble Lords from across the House to put it into action.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsThursday 6th July 2023
(1 year, 1 month ago)
Lords ChamberRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 151-II Second marshalled list for Report - (6 Jul 2023)
“Introduction
(1) This Act provides for a new regulatory framework which has the general purpose of making the use of internet services regulated by this Act safer for individuals in the United Kingdom.(2) To achieve that purpose, this Act (among other things)—(a) imposes duties which, in broad terms, require providers of services regulated by this Act to identify, mitigate and manage the risks of harm (including risks which particularly affect individuals with a certain characteristic) from—(i) illegal content and activity, and(ii) content and activity that is harmful to children, and(b) confers new functions and powers on the regulator, OFCOM.(3) Duties imposed on providers by this Act seek to secure (among other things) that services regulated by this Act are—(a) safe by design, and(b) designed and operated in such a way that—(i) a higher standard of protection is provided for children than for adults,(ii) users’ rights to freedom of expression and privacy are protected, and(iii) transparency and accountability are provided in relation to those services.”Member’s explanatory statement
This amendment provides for a new introductory Clause.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, I am pleased that we are on Report, and I thank all noble Lords who took part in Committee and those with whom I have had the pleasure of discussing issues arising since then, particularly for their constructive and collaborative nature, which we have seen throughout the passage of Bill.
In Committee, I heard the strength of feeling and the desire for an introductory clause. It was felt that this would help make the Bill less complex to navigate and make it less easy for providers to use this complexity to try to evade their duties under it. I have listened closely to these concerns and thank the noble Lord, Lord Stevenson of Balmacara, the noble Baroness, Lady Merron, and others for their work on this proposal. I am particularly grateful for their collaborative approach to ensuring the new clause has the desired effect without causing legal uncertainty. In that spirit, I am pleased to introduce government Amendment 1. I am grateful too to the noble Baroness, Lady Kidron, and the noble Lord, Lord Clement-Jones, who have signed their names to it. That is a very good start to our amendments here on Report.
Amendment 1 inserts an introductory clause at the start of the Bill, providing an overarching statement about the main objectives of the new regulatory framework. The proposed new clause describes the main broad objectives of the duties that the Bill imposes on providers of regulated services and that the Bill confers new functions and powers on Ofcom.
The clause makes clear that regulated services must identify, mitigate and manage risks that particularly affect people with a certain characteristic. This recognises that people with certain characteristics, or more than one such characteristic, are disproportionately affected by online harms and that providers must account for and protect them from this. The noble Baroness, Lady Merron, raised the example of Jewish women, as did the noble Baroness, Lady Anderson of Stoke-on-Trent. Sadly, they have first-hand experience of the extra levels of abuse and harm that some groups of people can face when they have more than one protected characteristic. It could just as easily be disabled women or queer people of colour. The noble Baroness, Lady Merron, has tabled several amendments highlighting this problem, which I will address further in response to the contribution I know she will make to this debate.
Subsection 3 of the proposed new clause outlines the main outcomes that the duties in the Bill seek to secure. It is a fundamental principle of the legislation that the design of services can contribute to the risk of users experiencing harm online. I thank the noble Lord, Lord Russell of Liverpool, for continuing to raise this issue. I am pleased to confirm that this amendment will state clearly that a main outcome of the legislation is that services must be safe by design. For example, providers must choose and design their functionalities so as to limit the risk of harm to users. I know this is an issue to which we will return later on Report, but I hope this provides reassurance about the Government’s intent and the effect of the Bill’s framework.
Services must also be designed and operated in a way which ensures that a higher standard of protection is provided for children than for adults, that users’ rights to freedom of expression and privacy are protected and that transparency and accountability are enhanced. It should be noted that we have worked to ensure that this clause provides clarity to those affected by the Bill without adversely affecting the interpretation or effect of the substantive provisions of the rest of the Bill. As we debated in Committee, this is of the utmost importance, to ensure that this clause does not create legal uncertainty or risk with the interpretation of the rest of the Bill’s provisions.
I hope that your Lordships will welcome this amendment and I beg to move.
Amendment 2 (to Amendment 1)
Lord Clement-Jones (LD)
My Lords, needless to say, I disagree with what the noble Lord, Lord Moylan, has just been saying precisely because I believe that the new clause that the Minister has put forward, which I have signed and has support across the House, expresses the purpose of the Bill in the way that the original Joint Committee wanted. I pay tribute to the Minister, who I know has worked extremely hard, in co-operation with the noble Lord, Lord Stevenson of Balmacara, to whom I also pay tribute for getting to grips with a purpose clause. The noble Baronesses, Lady Kidron and Lady Harding, have put their finger on it: this is more about activity and design than it is about content, and that is the reason I fundamentally disagree with the noble Lord, Lord Moylan. I do not believe that will be the impact of the Bill; I believe that this is about systemic issues to do with social media, which we are tackling.
I say this slightly tongue-in-cheek, but if the Minister had followed the collective wisdom of the Joint Committee originally, perhaps we would not have worked at such breakneck speed to get everything done for Report stage. I believe that the Bill team and the Minister have worked extremely hard in a very few days to get to where we are on many amendments that we will be talking about in the coming days.
I also want to show my support for the noble Baroness, Lady Merron. I do not believe it is just a matter of the Interpretation Act; I believe this is a fundamental issue and I thank her for raising it, because it was not something that was immediately obvious. The fact is that a combination of characteristics is a particular risk in itself; it is not just about having several different characteristics. I hope the Minister reflects on this and can give a positive response. That will set us off on a very good course for the first day of Report.
Lord Parkinson of Whitley Bay (Con)
My Lords, this has indeed set us on a good course, and I am grateful to noble Lords for their questions and contributions. I apologise to my noble friend Lord Moylan, with whom I had the opportunity to discuss a number of issues relating to freedom of expression on Monday. We had tabled this amendment, and I apologise if I had not flagged it and sought his views on it explicitly, though I was grateful to him and the noble Baroness, Lady Fox of Buckley, for their time in discussing the issues of freedom of expression more broadly.
I am grateful to my noble friend Lady Harding and to the noble Baroness, Lady Kidron, for their tireless work over many months on this Bill and for highlighting the importance of “content” and “activity”. Both terms have been in the Bill since its introduction, for instance in Clauses 5(2) and (3), but my noble friend Lady Harding is right to highlight it in the way that she did. The noble Baroness, Lady Kidron, asked about the provisions on safety by design. The statement in the new clause reflects the requirements throughout the Bill to address content and activity and ensure that services are safe by design.
On the amendments tabled by the noble Baroness, Lady Merron, which draw further attention to people who have multiple characteristics and suffer disproportionately because of it, let me start by saying again that the Government recognise that this is, sadly, the experience for many people online, and that people with multiple characteristics are often at increased risk of harm. The Bill already accounts for this, and the current drafting captures people with multiple characteristics because of Section 6 of the Interpretation Act 1978. As she says, this was a new one to me—other noble Lords may be more familiar with this legacy of the Callaghan Government—but it does mean that, when interpreting statute, words in the singular include the plural and words in the plural include the singular.
If we simply amended the references that the noble Baroness highlights in her amendments, we would risk some uncertainty about what those provisions cover. I sympathise with the concern which lies behind her amendments, and I am grateful for her time in discussing this matter in detail. I agree that it would be helpful to make it clearer that the Bill is designed to protect people with multiple characteristics. This clause is being inserted to give clarity, so we should seek to do that throughout.
We have therefore agreed to add a provision in Clause 211—the Bill’s interpretation clause—to make clear that all the various references throughout the Bill to people with a certain characteristic include people with a combination of characteristics. This amendment was tabled yesterday and will be moved at a later day on Report, so your Lordships’ House will have an opportunity to look at and vote on that. I hope that that provision clarifies the intention of the wording used in the Bill and puts the issue beyond doubt. I hope that the noble Baroness will be satisfied, and I am grateful to all noble Lords for their support on this first amendment.
Baroness Merron (Lab)
My Lords, I am grateful to the Minister for his response. It is a very practical response and certainly one that I accept as a way forward. I am sure that the whole House is glad to hear of his acknowledgement of the true impact that having more than one protected characteristic can have, and of his commitment to wanting the Bill to do the job it is there to do. With that, I am pleased to withdraw the amendment in my name.
Lord Stevenson of Balmacara (Lab)
My Lords, this has been an interesting debate that in a curious way moves us from the debate on the first group, which was about the high level of aspiration for this Bill, for the work of those involved in it and indeed for Parliament as a whole, down to some of the nitty-gritty points that emerge from some of the Bill’s proposals. I am very much looking forward to the Minister’s response.
In a sense, where the noble Lord, Lord Clement-Jones, ends, I want to start. The noble and learned Lord, Lord Garnier, did a good job of introducing the points made previously by his colleague, the noble Baroness, Lady Buscombe, in relation to those unfortunate exercises of public comment on businesses, and indeed individuals, that have no reason to receive them. There does not seem to be a satisfactory sanction for that. In a sense he was drawn by the overarching nature of Clause 1, but I think we have established between us that Clause 1 does not have legal effect in the way that he would like, so we would probably need to move further forward. The Government probably need to pick up his points in relation to some of the issues that are raised further down, because they are in fact not dissimilar and could be dealt with.
The key issue is the one that my noble friend Lady Kennedy ended on, in the sense that the law online and the law offline, as mentioned by the noble Lord, Lord Clement-Jones, seem to be at variance about what you can and cannot do in relation to threats issued, whether or not they are general, to a group or groups in society. This is a complex area that needs further thought of the nature that has been suggested, and may well refer back to the points made by the noble Baroness, Lady Morgan. There is something here that we are not tackling correctly. I look forward to the Government’s response. We would support movement in that area should that agreement be made.
Unfortunately, the noble Lord, Lord Russell, whom I am tempted to call my noble friend because he is a friend, has just moved out of his seat—I do not need to give him a namecheck any more—but he and I went to a meeting yesterday, I think, although I have lost track of time. It was called by Luke Pollard MP and related to the incel movement or, as the meeting concluded, what we should call the alleged incel movement, because by giving it a name we somehow give it a position. I wanted to make that point because a lot of what we are talking about here is in the same territory. It was an informal research-focused meeting to hear all the latest research being done on the group of activities going under the name of the alleged incel movement.
I mention that because it plays into a lot of the discussion here. The way in which those who organise it do so—the name Andrew Tate has already been mentioned—was drawn into the debate in a much broader context by that research, particularly because representatives from the Home Office made the interesting point that the process by which the young men who are involved in this type of activity are groomed to join groups and are told that by doing so they are establishing a position that has been denied to them by society in general, and allegedly by women in particular, is very similar to the methods used by those who are cultivating terrorism activity. That may seem to be a big stretch but it was convincing, and the argument and debate around that certainly said to me that there are things operating within the world of social media, with its ability to reach out to those who often feel alone, even if they are not, and who feel ignored, and to reach them in a way that causes them to overreact in the way they deal with the issues they face.
That point was picked up by others, including my noble friend Lady Kennedy and the noble Baroness, Lady Burt, in relation to the way in which the internet itself is in some way gendered against women. I do not in any sense want to apportion blame anywhere for that; it is a much more complex issue than single words can possibly address, but it needs to be addressed. As was said in the meeting and has been said today, there are cultural, educational and holistic aspects here. We really do not tackle the symptoms or the effects of it, but we should also look at what causes people to act in the way they have because of, or through the agency of, the internet.
Having said that, I support the amendments from the noble Lord, Lord Allan, and I look forward to the Government’s response to them. Amendment 5B raises the issue that it will be detrimental to society if people stop posting and commenting on things because they fear that they will be prosecuted—or not even prosecuted but attacked. The messages that they want to share will be lost as a result, and that is a danger that we do not want to encourage. It will be interesting to hear the Minister’s response to that.
The noble Baroness, Lady Burt, made powerful points about the way in which the offence of cyberflashing is going to be dealt with, and the differences between that and the intimate image abuse that we are coming on to in the next group. It may well be that this is the right way forward, and indeed we support the Government in the way that they are going, but it is important to recognise her point that we need a test of whether it is working. The Government may well review the impact of the Bill in the normal way of things, but this aspect needs particular attention; we need to know whether there are prosecutions and convictions and whether people understand the implication of the change in practice. We need publicity, as has been said, otherwise it will not be effective in any case. These issues, mentioned by the noble Baroness, Lady Burt, and picked up by the noble Baroness, Lady Morgan, are important. We will have other opportunities to discuss them, but at this stage we should at least get a response to that.
If it is true that in Northern Ireland there is now a different standard for the way in which cyberflashing offences are to be undertaken—taking into account the points made very well by the noble Baroness, Lady Fox, and the worry about encouraging more offences for which crimes may not necessarily be appropriate at this stage, particularly the one about recklessness—do the Government not have a slight problem here? In the first case, do we really accept that we want differences between the various regions and nations of our country in these important issues? We support devolution but we also need to have a sense of what the United Kingdom as a whole stands for in its relationship with these types of criminal offence, if they are criminal. If that happens, do we need a better understanding of why one part of the country has moved in a particular way, and is that something that we are missing in picking up action that is perhaps necessary in other areas? As my noble friend Lady Kennedy has also said, some of the work she has been doing in Scotland is ahead of the work that we have been doing in this part of the United Kingdom, and we need to pick up the lessons from that as well.
As I said at the beginning, this is an interesting range of amendments. They are not as similar as the grouping might suggest, but they point in a direction that needs government attention, and I very much look forward to the Minister’s comments on them.
Lord Parkinson of Whitley Bay (Con)
I am grateful to my noble friends Lady Buscombe and Lord Leicester and my noble and learned friend Lord Garnier for the amendments that they have tabled, with which we began this helpful debate, as well as for their time earlier this week to discuss them. We had a good debate on this topic in Committee and I had a good discussion with my noble friend Lady Buscombe and my noble and learned friend Lord Garnier on Monday. I will explain why the Government cannot accept the amendments that they have brought forward today.
I understand my noble friends’ concerns about the impact that fake reviews can have on businesses, but the Bill and the criminal offences it contains are not the right place to address this issue. The amendments would broaden the scope of the offences and likely result in overcriminalisation, which I know my noble friends would not want to see.
Lord Allan of Hallam (LD)
I appreciate the Minister’s response. Could he also respond to my suggestion that it would be helpful for some of the people working on the front line to meet officials to go through their concerns in more detail?
Lord Parkinson of Whitley Bay (Con)
I am very happy to make that commitment. It would be useful to have their continued engagement, as we have had throughout the drafting of the Bill.
The noble Baroness, Lady Burt of Solihull, has tabled a number of amendments related to the new offence of cyberflashing. I will start with her Amendment 6. We believe that this amendment reduces the threshold of the new offence to too great an extent. It could, for example, criminalise a person sending a picture of naked performance art to a group of people, where one person might be alarmed by the image but the sender sends it anyway because he or she believes that it would be well received. That may be incorrect, unwise and insensitive, but we do not think it should carry the risk of being convicted of a serious sexual offence.
Crucially, the noble Baroness’s amendment requires that the harm against the victim be proven in court. Not only does this add an extra step for the prosecution to prove in order for the perpetrator to be convicted, it creates an undue burden on the victim, who would be cross-examined about his or her—usually her—experience of harm. For example, she might have to explain why she felt humiliated; this in itself could be retraumatising and humiliating for the victim. By contrast, Clause 170 as drafted means that the prosecution has only to prove and focus on the perpetrator’s intent.
Baroness Burt of Solihull (LD)
I am very grateful for the Minister’s comments. This is the crux of my confusion: I am not entirely sure why it is necessary for the victim to appear in court. In intimate image abuse, is it not the case that the victim does not have to make an appearance in court? What is the difference between intimate image abuse and cyberflashing abuse? I do not get why one attracts a physical court appearance and the other does not. They seem to be different sides of the same coin to me.
Lord Parkinson of Whitley Bay (Con)
If a defendant said that he—usually he—had sent an image believing that the consent of the recipient was implied, the person making the complaint would be cross-examined on whether or not she had indeed given that consent. If an offence predicated on proof of non-consent or proof of harm were made out, the victim could be called to give evidence and be cross-examined in court. The defence would be likely to lead evidence challenging the victim’s characteristics and credibility. We do not want that to be a concern for victims; we do not want that to be a barrier to victims coming forward and reporting abuse for fear of having their sexual history or intentions cross-examined.
Lord Clement-Jones (LD)
My Lords, we are coming to this in the next group, but that is a consent-based offence, is it not?
Lord Parkinson of Whitley Bay (Con)
It is—and I shall explain more in that group why we take that approach. But the offence of cyberflashing matches the existing offence of flashing, which is not a consent-based offence. If somebody flashes at someone in public, it does not matter whether the person who sees that flashing has consented to it—it is the intent of the flasher that is the focus of the court. That is why the Law Commission and we have brought the cyberflashing offence forward in the same way, whereas the sharing of intimate images without somebody’s consent relies on the consent to sharing. But I shall say a bit more when we get to that group, if the noble Lord will allow.
Lord Clement-Jones (LD)
I am sure that the noble and learned Lord, Lord Garnier, is going to come in, and he knows a great deal more about this than I do. But we are getting into the territory where we talk about whether or not somebody needs to appear in court in order to show consent. That was all that I was trying to point out, in a way—that, if the Minister accepted the amendment on behalf of my noble friend, and then the complainant had to appear in court, why is that not the case with intimate abuse?
Lord Parkinson of Whitley Bay (Con)
Perhaps I can respond to the point about intimate abuse when we come on to the next group—that might be helpful.
Lord Clement-Jones (LD)
It might be helpful—except for the refusal to accept my noble friend’s amendment.
Lord Parkinson of Whitley Bay (Con)
If the defendant said that they had sent an image because they thought that consent had been obtained, the person whose consent was under question would find themselves cross-examined on it in a way that we do not want to see. We do not want that to be a barrier to people reporting this, in the same way that it is not for people who report flashing on the streets.
Lord Garnier (Con)
My Lords, I do not want to interfere in private grief, but the courts have powers to protect witnesses, particularly in cases where they are vulnerable or will suffer acute distress, by placing screens in the way and controlling the sorts of cross-examinations that go on. I accept the concern expressed by the noble Baroness, Lady Burt, but I think that my noble friend the Minister will be advised that there are protective measures in place already for the courts to look after people of the sort that she is worried about.
Lord Parkinson of Whitley Bay (Con)
There are indeed but, as my noble and learned friend’s interjection makes clear, those are still means for people to be cross-examined and give their account in court, even with those mitigations and protections. That is really the crux of the issue here.
We have already debated the risk that the approach that the noble Baroness sets out in her Amendments 5C and 7A criminalises sending messages, and people whom we would not deem to be criminal. I want to reassure her and your Lordships’ House that the intent-based offence, as drafted at Clause 170, provides the comprehensive protections for victims that we all want to see, including situations where the perpetrator claims it was “just for a joke”. The offence is committed if a perpetrator intended to cause humiliation, and that captures many supposed “joke” motives, as the perverted form of humour in this instance is often derived from the victim’s humiliation, alarm or distress.
Indeed, it was following consultation with victims’ groups and others that the Law Commission added humiliation as a form of intent to the offence to address those very concerns. Any assertions made by a defendant in this regard would not be taken at face value but would be considered and tested by the police and courts in the usual way, alongside the evidence. The Crown Prosecution Service and others are practised in prosecuting intent, and juries and magistrates may infer intention from the context of the behaviour and its foreseeable consequences.
The addition of defences, as the noble Baroness suggests in her Amendment 7A, is unfortunately still not sufficient to ensure that we are not overcriminalising here. Even with the proposed defences, sending a picture of genitalia without consent for medical reasons would still risk being considered a criminal Act and potentially compel a medical professional to justify that he or she has an adequate defence.
Lord Parkinson of Whitley Bay (Con)
It is about the burden on the medical professionals and the question of whether it comes to court when the police investigate it and the prosecution make out. We do not want to see that sort of behaviour being overly criminalised or the risk of prosecution hanging over people for reasons where it is not needed. We want to make sure that the offence is focused on the behaviour that we all want to tackle here.
The Law Commission has looked at this extensively—and I am glad the noble Baroness has had the opportunity to speak to it directly—and brought forward these proposals, which mirror the offence of flashing that already exists in criminal law. We think that is the right way of doing it and not risking the overcriminalisation of those whom noble Lords would not want to capture.
Contrary to some concerns that have been expressed, the onus is never on the victim to marshal evidence or prove the intent of the perpetrator. It is for the police and the Crown Prosecution Service when investigating the alleged offence or prosecuting the case in court. That is why we and the Law Commission consulted the police and the CPS extensively in bringing the offence forward.
By contrast, as I say, the consent-based approach is more likely to put onerous pressure on the victim by focusing the case on his or her behaviour and sexual history instead of the behaviour of the perpetrator. I know and can tell from the interjections that noble Lords still have some concerns or questions about this offence as drafted. I reassure them, as my noble friend Lady Morgan of Cotes urged, that we will be actively monitoring and reviewing the implementation of this offence, along with the Crown Prosecution Service and the police, to ensure that it is working effectively and bringing perpetrators to justice.
The noble Baroness, Lady Burt, also raised the importance of public engagement and education in this regard. As she may know, the Government have a long-term campaign to tackle violence against women and girls. The Enough campaign covers a range of online and offline forms of abuse, including cyberflashing. The campaign includes engaging with the public to deepen understanding of this offence. It focuses on educating young people about healthy relationships, on targeting perpetrators and on ensuring that victims of violence against women and girls can access support. Future phases of the Enough campaign will continue to highlight the abusive nature and unacceptability of these behaviours, and methods for people safely to challenge them.
In addition, in our tackling violence against women and girls strategy the Government have committed to invest £3 million better to understand what works to prevent violence against women and girls, to invest in high-quality, evidence-informed prevention projects, including in schools, aiming to educate and inform children and young people about violence against women and girls, healthy relationships and the consequences of abuse.
With that commitment to keep this under review—to ensure that it is working in the way that the Law Commission and the Government hope and expect it to—and with that explanation of the way we will be encouraging the public to know about the protections that are there through the law and more broadly, I hope noble Lords will be reassured and will not press their amendments.
Baroness Kennedy of The Shaws (Lab)
Before the Minister sits down, I express my gratitude that he has indicated that my amendment would have some serious impact. I thank the noble Lord, Lord Clement-Jones, for saying that there should be some learning among men in the House and in wider society about what puts real fear in the hearts of women and how it affects how women conduct their lives. I thank those who said that some change is necessary.
We have to remember that this clause covers a threatening communications offence. I know that something is going to be said about the particular vulnerability of women and girls—the noble Baroness, Lady Morgan, mentioned it, and I am grateful for that—but this offence is not specific to one gender. It is a general offence that someone commits if a message they send conveys a threat of death or serious harm.
I reassure the noble Baroness, Lady Fox, that we are not talking about a slight—saying to a woman that she is ugly or something. This is not about insults but about serious threats. The business about it being reckless as to whether or not it is going to be carried out is vital. Clause 164(1)(c)(i) says an offence is committed if it is intended that an individual encountering the message would fear that the threat would be carried out. I would like to see added the words, “whether or not by the person sending the message”.
Just think of this in the Irish context of years gone by. If someone sent a message saying, “You should be kneecapped”, it is very clear that we would be talking about something that would put someone in terror and fear. It is a serious fear, so I am glad that this is supported by the Minister, and I hope we will progress it to the next stage.
Lord Harlech (Con)
My Lords, without wishing to disrupt the very good nature of this debate, I remind the House that the Companion advises against speaking more than once on Report, except for specific questions or points of elucidation.
Lord Parkinson of Whitley Bay (Con)
None the less, I am grateful to the noble Baroness for her clarification and expansion of this point. I am glad that she is satisfied with the approach we have set out.
Baroness Kennedy of The Shaws (Lab)
It is not specific to women; it is general.
Lord Parkinson of Whitley Bay (Con)
The issue the noble Baroness has highlighted will protect all victims against people trying to evade the law, and I am grateful to her. We will bring forward an amendment at Third Reading.
Lord Garnier (Con)
My Lords, I will be incredibly brief because everything that needs to be said has been said at least twice. I am grateful to those who have taken the trouble to listen to what I had to say, and I am grateful to the Minister for his response. I beg leave to withdraw my amendment.
Member’s explanatory statement
This amendment provides that “photograph” and “film” in the new offence of sending a photograph or film of genitals (and, by extension the new offences of sharing an intimate photograph or film) includes an image which has been altered and which appears to be a photograph or film.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful for the opportunity to continue some of the themes we touched on in the last group and the debate we have had throughout the passage of the Bill on the importance of tackling intimate image abuse. I shall introduce the government amendments in this group that will make a real difference to victims of this abhorrent behaviour.
Before starting, I take the opportunity again to thank the Law Commission for the work it has done in its review of the criminal law relating to the non-consensual taking, making and sharing of intimate images. I also thank my right honourable friend Dame Maria Miller, who has long campaigned for and championed the victims of online abuse. Her sterling efforts have contributed greatly to the Government’s approach and to the formulation of policy in this sensitive area, as well as to the reform of criminal law.
As we announced last November, we intend to bring forward a more expansive package of measures based on the Law Commission’s recommendations as soon as parliamentary time allows, but the Government agree with the need to take swift action. That is why we are bringing forward these amendments now, to deliver on the recommendations which fall within the scope of the Bill, thereby ensuring justice for victims sooner.
These amendments repeal the offence of disclosing private sexual photographs and films with intent to cause distress and replace it with four new sexual offences in the Sexual Offences Act 2003. The first is a base offence of sharing an intimate photograph or film without consent or reasonable belief in consent. This recognises that the sharing of such images, whatever the intent of the perpetrator, should be considered a criminal violation of the victim’s bodily autonomy.
The amendments create two more serious offences of sharing an intimate photograph or film without consent with intent to cause alarm, distress or humiliation, or for the purpose of obtaining sexual gratification. Offenders committing the latter offence may also be subject to notification requirements, commonly referred to as being on the sex-offenders register. The amendments create an offence of threatening to share an intimate image. These new sharing offences are based on the Law Commission’s recommended approach to the idea of intimate photographs or films to include images which show or appear to show a person nude or partially nude, or which depict sexual or toileting activity. This will protect more victims than the current Section 33 offence, which protects only images of a private and sexual nature.
Finally, these clauses will, for the first time, make it a criminal offence to share a manufactured or so-called deepfake image of another person without his or her consent. This form of intimate image abuse is becoming more prevalent, and we want to send a clear message that it will not be tolerated.
By virtue of placing these offences in the Sexual Offences Act 2003, we are extending to these offences also the current special measures, so that victims can benefit from them in court, and from anonymity provisions, which are so important when something so intimate has been shared without consent. This is only the first stage in our reform of the law in this area. We are committed to introducing additional changes, giving effect to further recommendations of the Law Commission’s report which are beyond the scope of the Bill, when parliamentary time allows.
I hope that noble Lords from across your Lordships’ House will agree that these amendments represent an important step forward in tackling intimate image abuse and protecting victims. I commend them to the House, and I beg to move.
Lord Allan of Hallam (LD)
My Lords, I welcome these new offences. From my professional experience, I know that what came to be known as “sextortion” created some of the most distressing cases you could experience, where an individual would obtain intimate images, often by deception, and then use them to make threats. This is where a social network is particularly challenging; it enables people to access a network of all the family and friends of an individual whose photo they now hold and to threaten to distribute it to their nearest and dearest. This affects men and women; many of the victims were men who were honey-potted into sharing intimate images and in the worst cases it led to suicide. It was not uncommon that people would feel that there was no way out; the threat was so severe that they would take their own lives. It is extremely welcome that we are doing something about it, and making it more obvious to anyone who is thinking about committing this kind of offence that they run the risk of criminal prosecution.
I have a few specific questions. The first is on the definitions in proposed new Section 66D, inserted by government Amendment 8, where the Government are trying to define what “intimate” or “nudity” represents. This takes me back again to my professional experience of going through slide decks and trying to decide what was on the right or wrong side of a nudity policy line. I will not go into the detail of everything it said, not least because I keep noticing younger people in the audience here, but I will leave you with the thought that you ended up looking at images that involved typically fishnets, in the case of women, and socks, in the case of men—I will leave the rest to your Lordships’ imaginations to determine at what point someone has gone from being clothed to nude. I can see in this amendment that the courts are going to have to deal with the same issues.
The serious point is that, where there is alignment between platform policies, definitions and what we do not want to be distributed, that is extremely helpful, because it then means that if someone does try to put an intimate image out across one of the major platforms, the platform does not have to ask whether there was consent. They can just say that it is in breach of their policy and take it down. It actually has quite a beneficial effect on slowing transmission.
The other point that comes out of that is that some of these questions of intimacy are quite culturally subjective. In some cultures, even a swimsuit photo could be used to cause humiliation and distress. I know this is extremely difficult; we do not want to be overly censorious but, at the same time, we do not want to leave people exposed to threats, and if you come from a culture where a swimsuit photo would be a threat, the definitions may not work for you. So I hope that, as we go through this, there will be a continued dialogue between experts in the platforms who have to deal with these questions and people working on the criminal offence side. To the extent that we can achieve it, there should be alignment and the message should go out that if you are thinking of distributing an image like this, you run the risk of being censored by the platforms but also of running into a criminal prosecution. That is on the mechanics of making it work.
Baroness Merron (Lab)
My Lords, I am grateful to the Minister for introducing this suite of government amendments. From these Benches we welcome them. From the nature of the debate, this seems to be very much a work in progress. I wish the Minister well as he and the Justice Minister continue to pick their way through a route to get us to where we need to be. I too thank the Law Commission, Dame Maria Miller MP and so many other campaigners who, as noble Lords have said, have got us to this important point.
However, as I am sure is recognised, with the best of intentions, the government amendments still leave some areas that are as yet unresolved, particularly on sharing images with others: matters such as revenge porn and sending unwanted pictures on dating apps. There are areas still to be explored. The Minister and the Justice Minister said in a letter that, when parliamentary time allows, there will be a broader package of offences being brought forward. I realise that the Minister cannot be precise, but I would appreciate some sense of urgency or otherwise in terms of parliamentary time and when that might be.
We are only just starting to understand the impact of, for example, artificial intelligence, which we are about to come on to. That will be relevant in this regard too. We all understand that this is a bit of a moveable feast. The test will be whether this works. Can the Minister say a bit more about how this suite of measures will be kept under review and, in so doing, will the Government be looking at keeping an eye on the number of charges that are brought? How will this be reported to the House?
In line with this, will there be some consideration of the points that were raised in the previous group? I refer particularly to the issues raised in the amendments tabled by the noble Baroness, Lady Burt, especially where there may not be the intent, or the means, to obtain sexual gratification. They might be about “having a bit of a laugh”, as the noble Baroness said—which might be funny to some but really not funny to others.
In welcoming this, I hope that the Minister will indicate that this is just one step along the way and when we will see further steps.
Lord Parkinson of Whitley Bay (Con)
I am happy to respond clearly to that. As my right honourable friend Edward Argar MP and I said in our letter, this is just the first step towards implementing the changes which the Law Commission has recommended and which we agree are needed. We will implement a broader package of offences, covering, for instance, the taking of intimate images without consent, which were also part of the Law Commission’s report. The parameters of this Bill limit what we can do now. As I said in my opening remarks, we want to bring those forward now so that we can provide protections for victims in all the ways that the Bill gives us scope to do. We will bring forward further provisions when parliamentary time allows. The noble Baroness will understand that I cannot pre-empt when that is, although if we make good progress on the Bill, parliamentary time may allow for it sooner.
The noble Baroness also asked about our review. We will certainly take into account the number of prosecutions and charges that are brought. That is always part of our consideration of criminal law, but I am happy to reassure her that this will be the case here. These are new offences, and we want to make sure that they are leading to prosecutions to deter people from doing it.
The noble Lord, Lord Allan of Hallam, asked whether images will include those shared on virtual reality platforms and in other novel ways. As he knows, the Bill is written in a technologically neutral way to try to be future-proof and capture those technologies which have not yet been invented. I mentioned deepfakes in my opening remarks, which we can envisage. An image will be included on whatever platform it is shared, if it appears to be a photograph or film—that is to say, if it is photo-real. I hope that reassures him.
Lord Clement-Jones (LD)
If the Minister has time, can he actually direct us to that, because it is important that we are clear that it really is captured?
Lord Parkinson of Whitley Bay (Con)
In the amendments, if I can, I will. In the meantime, I reassure my noble friend Lady Morgan of Cotes that, as I said in opening, placing these offences in the Sexual Offences Act means that we are also extending the current special measures provisions to these offences, as we heard in our debate on the last group, so that victims can benefit from those in court. The same applies to anonymity provisions, which are so important when something so intimate has been shared without someone’s consent.
I promised in the previous group to outline the difference in the consent basis between this offence and the cyberflashing offence. Both are abhorrent behaviours which need to be addressed in criminal law. Although the levels of harm and distress may be the same in each case, the Law Commission recommended different approaches to take into account the different actions of the perpetrator in each offence. Sharing an intimate image of somebody without their consent is, in and of itself, wrongful, and a violation of their bodily privacy and sexual autonomy. Sending a genital image without the consent of the recipient is not, in and of itself, wrongful; for instance, the example I gave in the previous debate about an artistic performance, or a photograph which depicts a naked protester. If that was sent without the consent of the recipient, it is not always or necessarily harmful. This is an issue which the Law Commission looked at in some detail.
The criminal law must take the culpability of the perpetrator into account. I reassure noble Lords that both we and the Law Commission have looked at these offences considerably, working with the police and prosecutors in doing so. We are confident that the Bill provides the comprehensive protection for victims that we all want to see, including in situations where a perpetrator may claim that it was just a joke.
The terms “photograph” and “film” are defined in proposed new Section 66D(5). That refers to the definition in new Section 66A, which refers to an image which is made or altered in any way
“which appears to be a photograph or film”.
That is where the point I make about photo-reality is captured.
The noble Baroness, Lady Kidron, is right to highlight that this is a matter not just for the criminal law. As we discussed on the previous group, it is also a matter for public education, so that young people and users of any age are aware of the legal boundaries and legal issues at stake here. That is why we have the public education campaigns to which I alluded in the previous group.
Baroness Kidron (CB)
I believe I misspoke when I asked my question. I referred to under-18s. Of course, if they are under 18 then it is child sexual abuse. I meant someone under the age of 18 with an adult image. I put that there for the record.
Lord Parkinson of Whitley Bay (Con)
If the noble Baroness misspoke, I understood what she intended. I knew what she was getting at.
With that, I hope noble Lords will be content not to press their amendments and that they will support the government amendments.
“Sharing or threatening to share intimate photograph or film
In the Sexual Offences Act 2003, after section 66A (inserted by section 170), insert—“66B Sharing or threatening to share intimate photograph or film(1) A person (A) commits an offence if—(a) A intentionally shares a photograph or film which shows, or appears to show, another person (B) in an intimate state,(b) B does not consent to the sharing of the photograph or film, and(c) A does not reasonably believe that B consents.(2) A person (A) commits an offence if—(a) A intentionally shares a photograph or film which shows, or appears to show, another person (B) in an intimate state,(b) A does so with the intention of causing B alarm, distress or humiliation, and(c) B does not consent to the sharing of the photograph or film.(3) A person (A) commits an offence if—(a) A intentionally shares a photograph or film which shows, or appears to show, another person (B) in an intimate state, (b) A does so for the purpose of A or another person obtaining sexual gratification,(c) B does not consent to the sharing of the photograph or film, and(d) A does not reasonably believe that B consents.(4) A person (A) commits an offence if—(a) A threatens to share a photograph or film which shows, or appears to show, another person (B) in an intimate state, and(b) A does so—(i) with the intention that B or another person who knows B will fear that the threat will be carried out, or(ii) being reckless as to whether B or another person who knows B will fear that the threat will be carried out.(5) Subsections (1) to (4) are subject to section 66C (exemptions).(6) For the purposes of subsections (1) to (3) and section 66C(3)(b)—(a) “consent” to the sharing of a photograph or film includes general consent covering the particular act of sharing as well as specific consent to the particular act of sharing, and(b) whether a belief is reasonable is to be determined having regard to all the circumstances including any steps A has taken to ascertain whether B consents.(7) Where a person is charged with an offence under subsection (4), it is not necessary for the prosecution to prove—(a) that the photograph or film mentioned in the threat exists, or(b) if it does exist, that it is in fact a photograph or film which shows or appears to show a person in an intimate state.(8) It is a defence for a person charged with an offence under subsection (1) to prove that the person had a reasonable excuse for sharing the photograph or film.(9) A person who commits an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding the maximum term for summary offences or a fine (or both).(10) A person who commits an offence under subsection (2), (3) or (4) is liable—(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.(11) In subsection (9) “the maximum term for summary offences” means—(a) if the offence is committed before the time when section 281(5) of the Criminal Justice Act 2003 comes into force, six months;(b) if the offence is committed after that time, 51 weeks.(12) If on the trial of a person charged with an offence under subsection (2) or (3) a magistrates’ court or jury finds the person not guilty of the offence charged, the magistrates’ court or jury may find the person guilty of an offence under subsection (1).(13) The Crown Court has the same powers and duties in relation to a person who is by virtue of subsection (12) convicted before it of an offence under subsection (1) as a magistrates’ court would have on convicting the person of the offence. 66C Sharing or threatening to share intimate photograph or film: exemptions(1) A person (A) who shares a photograph or film which shows, or appears to show, another person (B) in an intimate state does not commit an offence under section 66B(1), (2) or (3) if—(a) the photograph or film was taken in a place to which the public or a section of the public had or were permitted to have access (whether on payment or otherwise),(b) B had no reasonable expectation of privacy from the photograph or film being taken, and(c) B was, or A reasonably believes that B was, in the intimate state voluntarily.(2) For the purposes of subsection (1)(b), whether a person had a reasonable expectation of privacy from a photograph or film being taken is to be determined by reference to the circumstances that the person sharing the photograph or film reasonably believes to have existed at the time the photograph or film was taken.(3) A person (A) who shares a photograph or film which shows, or appears to show, another person (B) in an intimate state does not commit an offence under section 66B(1), (2) or (3) if—(a) the photograph or film had, or A reasonably believes that the photograph or film had, been previously publicly shared, and(b) B had, or A reasonably believes that B had, consented to the previous sharing.(4) A person (A) who shares a photograph or film which shows, or appears to show, another person (B) in an intimate state does not commit an offence under section 66B(1) if—(a) B is a person under 16,(b) B lacks, or A reasonably believes that B lacks, capacity to consent to the sharing of the photograph or film, and(c) the photograph or film is shared—(i) with a healthcare professional acting in that capacity, or(ii) otherwise in connection with the care or treatment of B by a healthcare professional.(5) A person who shares a photograph or film which shows, or appears to show, a child in an intimate state does not commit an offence under section 66B(1) if the photograph or film is of a kind ordinarily shared between family and friends.(6) A person who threatens to share a photograph or film which shows, or appears to show, another person in an intimate state does not commit an offence under section 66B(4) if, by reason of this section, the person would not commit an offence under section 66B(1), (2) or (3) by sharing the photograph or film in the circumstances conveyed by the threat.66D Sharing or threatening to share intimate photograph or film: interpretation(1) This section applies for the purposes of sections 66B and 66C.(2) A person “shares” something if the person, by any means, gives or shows it to another person or makes it available to another person.(3) But a provider of an internet service by means of which a photograph or film is shared is not to be regarded as a person who shares it.(4) “Photograph” and “film” have the same meaning as in section 66A (see subsections (3) to (5) of that section). (5) Except where a photograph or film falls within subsection (8), a photograph or film “shows, or appears to show, another person in an intimate state” if it shows or appears to show—(a) the person participating or engaging in an act which a reasonable person would consider to be a sexual act,(b) the person doing a thing which a reasonable person would consider to be sexual,(c) all or part of the person’s exposed genitals, buttocks or breasts,(d) the person in an act of urination or defecation, or(e) the person carrying out an act of personal care associated with the person’s urination, defecation or genital or anal discharge.(6) For the purposes of subsection (5)(c) the reference to all or part of a person’s “exposed” genitals, buttocks or breasts includes—(a) a reference to all or part of the person’s genitals, buttocks or breasts visible through wet or otherwise transparent clothing,(b) the case where all or part of the person’s genitals, buttocks or breasts would be exposed but for the fact that they are covered only with underwear, and(c) the case where all or part of the person’s genitals, buttocks or breasts would be exposed but for the fact that they are obscured, provided that the area obscured is similar to or smaller than an area that would typically be covered by underwear worn to cover a person’s genitals, buttocks or breasts (as the case may be).(7) In subsection (6)(c) “obscured” means obscured by any means, other than by clothing that a person is wearing, including, in particular, by an object, by part of a person’s body or by digital alteration.(8) A photograph or film falls within this subsection if (so far as it shows or appears to show a person in an intimate state) it shows or appears to show something, other than breastfeeding, that is of a kind ordinarily seen in public.(9) For the purposes of subsection (8) “breastfeeding” includes the rearranging of clothing in the course of preparing to breastfeed or having just finished breastfeeding.””Member’s explanatory statement
This amendment provides for new offences of sharing or threatening to share intimate photographs or films.
“Repeals in connection with offences under section (Sharing or threatening to share intimate photograph or film)
Sections 33 to 35 of the Criminal Justice and Courts Act 2015 (disclosing or threatening to disclose private sexual photographs and films with intent to cause distress) are repealed.”Member’s explanatory statement
This amendment is consequential on the new Clause creating offences of sharing or threatening to share intimate photographs or films.
Member’s explanatory statement
This amendment provides that Part 3 of Schedule 14 also makes consequential amendments on the new Clause creating offences of sharing and threatening to share intimate photographs or films.
Member’s explanatory statement
This is a technical amendment ensuring that the amendments made under Schedule 14 to Schedule 1 to the Children and Young Persons Act 1933 are inserted in the correct place in that Act.