Online Safety Bill
Lord Parkinson of Whitley Bay Excerpts(11 months, 2 weeks ago)
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“10A_ An offence under section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship).”Member’s explanatory statement
This amendment adds the specified offence to Schedule 7, with the effect that content amounting to that offence counts as priority illegal content.
Lord Parkinson of Whitley Bay (Con)
As noble Lords will recall from the earlier debate on this issue, His Majesty’s Government take tackling violence against women and girls extremely seriously. This is why we have ensured that the Bill provides vital protections for women and girls, so that they can express themselves freely online without fear of harassment or abuse.
As noble Lords know, the Bill places strong duties on providers regarding illegal content. The Bill takes an approach which protects all users, but the framework accounts for the fact that some offences can disproportionately affect certain people. To that end, we have already listed several priority offences in Schedule 7 that we know disproportionately affect women and girls. These include sexual exploitation, intimate image abuse— including so-called revenge pornography—and extreme pornography.
In addition, I want to be clear that the Bill will also cover content which intentionally encourages priority offences, an issue that was raised as a concern in our previous debate. Paragraph 33 of Schedule 7 has the effect that inchoate offences of encouraging or assisting a priority offence are themselves to be treated as priority offences under the Bill. As a result, for example, where there is content that intentionally or knowingly encourages harassment online, services will have proactive duties in relation to this content.
Furthermore, the Bill will soon—as I mentioned earlier—introduce new intimate image abuse offences to tackle behaviour, such as the sharing of deep-fake images. These new offences will be listed as priority offences, as is already the case for the current revenge pornography offence under Section 33 of the Criminal Justice and Courts Act 2015. These offences are a major milestone for protecting women and girls, and will be introduced to the Bill as soon as possible. They will sit alongside the Bill’s other criminal provisions, such as its offences on cyberflashing, false communications and threatening communications.
Although I appreciate the intention behind Amendments 269 and 270 and look forward to hearing the arguments made by the noble Lords who will speak to them, I remain concerned by the approach suggested to change Clause 167 to a consent-based model rather than the current intent-based approach. We are confident that the offence, as drafted, captures acts of cyberflashing, including when supposedly done “for a joke”—which, of course, it certainly is not. This is because the focus of the offence as drafted remains firmly on the perpetrator’s abhorrent behaviour and not on the actions of the victim, as would happen with a consent-based approach.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
I join all those who have sent our best wishes to the noble Baroness, Lady Featherstone, for a speedy recovery. I am grateful that noble Lords were able to take forward her points in this debate.
As I said at the outset, protecting women and girls online is an objective of this Bill, which is reflected by the number of priority offences we have included that disproportionately affect women and girls. This includes the addition of the controlling or coercive behaviour offence, and I am grateful for the support from across the Committee for that amendment. This, in addition to the new cyberflashing offence and other criminal law reforms, demonstrates our continued commitment to increase the safety of women and girls online.
The amendments tabled by my noble friend Lady Berridge and the noble Baronesses, Lady Featherstone and Lady Gohir, relate to cyberflashing. The new cyberflashing offence, alongside the package of offences in this Bill, will bring significant benefit for women and girls across the UK, too many of whom have been subjected to the distressing behaviour that noble Lords have spoken about in this debate. We share the aim of noble Lords who have spoken in favour of those amendments to ensure that this offence is effective at stopping this behaviour.
Regarding Amendments 269 and 270, I want to reassure your Lordships that the intent-based approach in Clause 167 has been tested extensively both by the Law Commission and subsequently by His Majesty’s Government. The noble Lord, Lord Stevenson, is correct that we do not automatically agree with what it says, but we do take the commission’s expert views very seriously. The Crown Prosecution Service has stated that it has no concerns about using the offence that has been drafted to bring perpetrators to justice. Indeed, it strongly supported the inclusion of the “sexual gratification” element, which would, according to the Crown Prosecution Service, enable it to prosecute this offence more effectively.
The offence will capture many instances of cyberflashing, such as where pictures are sent to strangers via AirDrop in a crowded railway carriage. I agree with the points noble Lords raised about the settings and the simple technological change that, at an operator level, could make a big difference here. We are well aware of the concern set out by the noble Baroness, Lady Burt of Solihull, that an intent-based approach may let perpetrators off the hook if they send images supposedly for a laugh. We do not accept that view. The courts will, in the normal way, consider all the evidence to determine whether the elements of the offence have been made out. It is of course never on the victim to have to prove the perpetrator’s intention; it is for the police to investigate alleged offences and for the Crown Prosecution Service to establish the perpetrator’s intention in court.
I draw noble Lords’ attention to the inclusion of the word “humiliation” in Clause 167. This will catch many supposedly joke motives, since the perverted form of humour in these instances is often derived from the victim’s humiliation, alarm or distress. This offence has been crafted following calls, including by victims’ groups, to include an intention to cause the victim humiliation.
My noble friend Lady Morgan of Cotes said she was unable to attend the briefing we organised with the Law Commission so, for the benefit of those who were not able to join, let me reassure noble Lords that Clause 167 is based on the offence proposed by the Law Commission, which held an extensive public consultation with victims, the police, prosecutors and academics, and was drafted following further engagement with the police and the Crown Prosecution Service.
The Law Commission, as Professor Lewis set out in that briefing for your Lordships, did consider a consent-based approach, and its final report highlights the significant concerns expressed by respondents to its consultation. A consent-based offence, as the commission found, would result in overcriminalisation, capturing behaviour that does not warrant criminal sanction. For example, as Professor Lewis outlined at the meeting, it could capture a patient sending their doctor an image of their genitals for medical reasons. I take the point that the noble Lord, Lord Stevenson, just made interrogating that. The commission found that it would also criminalise misjudged attempts at intimacy where there was, for example, no genuine intention to cause harm or upset. It has looked at these issues.
Requiring a specific intent is not new and is taken in line with other non-contact sexual offences, including “in person” flashing—the offence of exposure. The police and Crown Prosecution Service are very familiar with these offences and with the evidence that is needed in court to prove the required intent. Crucially an offence based on a lack of consent would shift the focus away from the actions and intentions of the perpetrator to the victim and what they may or may not have done. This would be likely to result in a victim’s previous sexual or private behaviour being interrogated in open court. We do not want victims of this behaviour to be put under that sort of pressure. We want the focus to be fully on the perpetrator’s actions and intentions. The provisions in the Bill have been carefully targeted to protect victims from the intrusive and disturbing behaviour that noble Lords have set out, not to subject them to an unnecessary and distressing interrogation of their private lives.
Changing the consent test to reasonable belief that the defendant would have consented, in order to avoid criminalisation, would not work. Applying this test would mean that it would be much easier for genuinely harmful and culpable cyberflashing to escape conviction. For example, it would make it easier for a defendant to make an excuse, such as claiming that they reasonably believed that a person had consented to see a picture because they were on a particular dating app or, as was discussed in the briefing with the Law Commission, claiming that the victim had smiled back at them in a meaningful way on a train. They are not, perhaps, strong defences, but they are not—I am sure—ones that noble Lords would want to encourage through the drafting of this amendment. We are confident that an intent approach is the most appropriate way to frame this offence and that it ensures that the criminal law is workable, so that we can bring perpetrators to justice.
Lord Stevenson of Balmacara (Lab)
I am sorry to interrupt the Minister in his flow. Just to go back a little bit, the amendment in the name of the noble Baroness, Lady Featherstone, attempted to resolve the questions about where it was legitimate for material of the nature that he has been describing to be circulated. Would be accept that that approach has some merit? If so, then I go on to ask: is the decision still to go with intent rather than content for reasons other than relating to that particular point?
Lord Parkinson of Whitley Bay (Con)
I am sorry, I was slightly distracted by noises off. Would the noble Lord mind repeating his question?
Lord Stevenson of Balmacara (Lab)
It is a very narrow point, but it is important in terms of the overall approach that we are taking on this. The Minister very accurately described the reasons that the Law Commission came up with for moving back to an intent-based rather than content-based approach. I wanted to ask him to check whether the wording in the amendment that we signed up to, in the name of the noble Baroness, Lady Featherstone—ably introduced by the noble Baroness, Lady Burt, and spoken to by many people around the Chamber—would cover off those points where there is legitimate reason for this material to be circulated. I used an unfortunate phrase that I will not repeat. Are the Government happy to accept that it is possible to get around that objection by the Law Commission by making legitimate those particular explicit reasons for those pictures being circulated? I make that point only to get an admission at the Dispatch Box that the Government could get round the issue that has been mentioned, but they are still deciding to go for an intent-based approach for other reasons, which the Minister has just adumbrated and which I accept are genuine.
Lord Parkinson of Whitley Bay (Con)
In brief, we think the Law Commission has it right—
Lord Stevenson of Balmacara (Lab)
If the Minister could write to me on the point once he has had advice, or perhaps inspiration from the Box, that would be very helpful.
Lord Parkinson of Whitley Bay (Con)
I will certainly do so. It requires flicking through a number of amendments and cross-referencing them with provisions in the Bill. I will certainly do that in slower time and respond.
We think that the Law Commission, which looked at all these issues, including, I think, the questions put by the noble Lord, has done that well. We were satisfied with it. I thought its briefing with Professor Penney Lewis was useful in exploring those issues. We are confident that the offence as drafted is the appropriate one.
My noble friend Lady Morgan and others asked why both the Law Commission and the Government are taking a different approach in relation to intimate image abuse and to cyberflashing. We are taking action to criminalise both, but the Law Commission recommended different approaches in how to criminalise that behaviour to take into account the different actions of the perpetrator in each scenario. Sharing an intimate image of a person without their consent is ipso facto wrongful, as it is a violation of their bodily privacy and sexual autonomy. Sending a genital image is not ipso facto wrongful, as it does not always constitute a sexual intrusion, so greater additional culpability is required for that offence. To give an example, sending a photograph of a naked protestor, even without the consent of the recipient, is not always harmful. Although levels of harm resulting from behaviours may be the same and cause the same levels of stress, the criminal law must consider whether the perpetrator’s behaviour was sufficiently culpable for an offence to have been committed. That is why we think the intent approach is best for cyberflashing but have taken a different approach in relation to intimate image abuse.
Baroness Morgan of Cotes (Con)
I thank my noble friend for that explanation, which is very helpful and there is a lot in his reply so far that we will have to bottom out. Is he able to shed any light at all on when we might see the drafting of the intimate image abuse wording because that would be helpful in resolving some of the issues we have been debating?
Lord Parkinson of Whitley Bay (Con)
I cannot give a precise date. The Committee knows the dates for this Committee are a moveable feast, but we have been having fruitful discussions on some of the issues we have already discussed—we had one yesterday with my noble friend. I appreciate the point she is making about wanting to see the drafting in good time before Report so that we can have a well thought through debate on it. I will certainly reiterate that to the usual channels and to others.
Amendment 271 additionally seeks to require companies in scope to provide systems which enable users to report incidents of cyberflashing to platforms. Clauses 16 and 26 already require companies to set up systems and processes which allow users easily to report illegal content, and this will include cyberflashing. This amendment therefore duplicates the existing requirement set out in the Bill. Amendment 271 also requires in scope companies to report cyberflashing content to the Crown Prosecution Service. The Bill does not place requirements on in scope companies to report discovery of illegal content online, other than in the instances of child exploitation and abuse, reflecting the seriousness of that crime and the less subjective nature of the content that is being reported in those scenarios.
The Bill, which has been developed in consultation with our partners in law enforcement, aims to prevent and reduce the proliferation of illegal content and activity in the first place and the resulting harm this causes to so many. While the Bill does not place any specific responsibilities on policing, our policing partners are considering how best to respond to the growing threat of online offences, as my noble friend Lady Morgan noted, in relation to the publication last week of the Strategic Threat and Risk Assessment on Violence Against Women and Girls. Policing partners will be working closely with Ofcom to explore the operational impact of the Bill and make sure it is protecting women and girls in the way we all want it to.
I hope that helps noble Lords on the issues set out in these amendments. I am grateful for the support for the government amendment in my name and hope that noble Lords will be content not to move theirs at this juncture.
(a) section 24(A1), (B1), (C1) or (D1) (illegal entry and similar offences);(b) section 25 (assisting unlawful immigration).”Member’s explanatory statement
This amendment adds the specified offences under section 24 of the Immigration Act to Schedule 7, with the effect that (amongst other things) content amounting to encouraging those offences (as per the Serious Crime Act 2007) counts as priority illegal content.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsThursday 25th May 2023
(11 months, 2 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 87(Rev)-IX(a) Amendments for Committee (Supplementary to the Ninth Marshalled List) - (24 May 2023)
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, this has been a grim but important debate to open the Committee’s proceedings today. As my noble friend Lady Harding of Winscombe and others have set out, some of the issues and materials about which we are talking are abhorrent indeed. I join other noble Lords in thanking my noble friend Lord Harlech for his vigilance and consideration for those who are watching our proceedings today, to allow us to talk about them in the way that we must in order to tackle them, but to ensure that we do so sensitively. I thank noble Lords for the way they have done that.
I pay tribute also to those who work in this dark corner of the internet to tackle these harms. I am pleased to reassure noble Lords that the Bill has been designed in a way that responds to emerging and new technologies that may pose a risk of harm. In our previous debates, we have touched on explicitly naming certain technologies and user groups or making aspects of the legislation more specific. However, one key reason why the Government have been resistant to such specificity is to ensure that the legislation remains flexible and future-proofed.
The Bill has been designed to be technology-neutral in order to capture new services that may arise in this rapidly evolving sector. It confers duties on any service that enables users to interact with each other, as well as search services, meaning that any new internet service that enables user interaction will be caught by it.
Amendment 125, tabled by the noble Baroness, Lady Kidron—whose watchful eye I certainly feel on me even as she takes a rare but well-earned break today—seeks to ensure that machine-generated content, virtual reality content and augmented reality content are regulated content under the Bill. I am happy to confirm to her and to my noble friend Lady Harding who moved the amendment on her behalf that the Bill is designed to regulate providers of user-to-user services, regardless of the specific technologies they use to deliver their service, including virtual reality and augmented reality content. This is because any service that allows its users to encounter content generated, uploaded or shared by other users is in scope unless exempt. “Content” is defined very broadly in Clause 207(1) as
“anything communicated by means of an internet service”.
This includes virtual or augmented reality. The Bill’s duties therefore cover all user-generated content present on the service, regardless of the form this content takes, including virtual reality and augmented reality content. To state it plainly: platforms that allow such content—for example, the metaverse—are firmly in scope of the Bill.
The Bill also ensures that machine-generated content on user-to-user services created by automated tools or machine bots will be regulated by the Bill where appropriate. Specifically, Clause 49(4)(b) means that machine-generated content is regulated unless the bot or automated tool producing the content is controlled by the provider of the service. This approach ensures that the Bill covers scenarios such as malicious bots on a social media platform abusing users, or when users share content produced by new tools, such as ChatGPT, while excluding functions such as customer service chatbots which are low risk. Content generated by an artificial intelligence bot and then placed by a user on a regulated service will be regulated by the Bill. Content generated by an AI bot which interacts with user-generated content, such as bots on Twitter, will be regulated by the Bill. A bot that is controlled by the service provider, such as a customer service chatbot, is out of scope; as I have said, that is low risk and regulation would therefore be disproportionate. Search services using AI-powered features will be in scope of the search duties.
The Government recognise the need to act both to unlock the opportunities and to address the potential risks of this technology. Our AI regulation White Paper sets out the principles for the responsible development of AI in the UK. These principles, such as safety and accountability, are at the heart of our approach to ensuring the responsible development and use of artificial intelligence. We are creating a horizon-scanning function and a central risk function which will enable the Government to monitor future risks.
The Bill does not distinguish between the format of content present on a service. Any service that allows its users to encounter content generated, uploaded or shared by other users is in scope unless exempt, regardless of the format of that content. This includes virtual and augmented reality material. Platforms that allow such content, such as the metaverse, are firmly in scope of the Bill and must take the required steps to protect their users from harm. I hope that gives the clarity that my noble friend and others were seeking and reassurance that the intent of Amendment 125 is satisfied.
The Bill will require companies to take proactive steps to tackle all forms of online child sexual abuse, including grooming, live streaming, child sexual abuse material and prohibited images of children. If AI-generated content amounts to a child’s sexual exploitation or abuse offence in the Bill, it will be subject to the illegal content duties. Regulated providers will need to take steps to remove this content. We will shortly bring forward, and have the opportunity to debate in Committee, a government amendment to address concerns relating to the sending of intimate images. This will cover the non-consensual sharing of manufactured images—more commonly known as deepfakes. The possession and distribution of altered images that appear to be indecent photographs of children is ready covered by the indecent images of children offences, which are very serious offences with robust punishment in law.
Lord Allan of Hallam (LD)
Will the review also cover an understanding of what has been happening in criminal cases where, in some of the examples that have been described, people have tried to take online activity to court? We will at that point understand whether the judges believe that existing offences cover some of these novel forms of activity. I hope the review will also extend not just to what Ofcom does as a regulator but to understand what the courts are doing in terms of the definitions of criminal activity and whether they are being effective in the new online spaces.
Lord Parkinson of Whitley Bay (Con)
I believe it will. Certainly, both government and Parliament will take into account judgments in the court on this Bill and in related areas of law, and will, I am sure, want to respond.
Baroness Berridge (Con)
It is not just the judgments of the courts; it is about how the criminal law as a very basic point has been framed. I invite my noble friend the Minister to please meet with the Dawes Centre, because it is about future crime. We could end up with a situation in which more and more violence, particularly against women and girls, is being committed in this space, and although it may be that the Bill has made it regulated, it may not fall within the province of the criminal law. That would be a very difficult situation for our law to end up in. Can my noble friend the Minister please meet with the Dawes Centre to talk about that point?
Lord Parkinson of Whitley Bay (Con)
I am happy to reassure my noble friend that the director of the Dawes Centre for Future Crime sits on the Home Office’s Science Advisory Council, whose work is very usefully fed into the work being done at the Home Office. Colleagues at the Ministry of Justice keep criminal law under constant review, in light of research by such bodies and what we see in the courts and society. I hope that reassures my noble friend that the points she raised, which are covered by organisations such as the Dawes Centre, are very much in the mind of government.
The noble Lord, Lord Allan of Hallam, explained very effectively the nuances of how behaviour translates to the virtual world. He is right that we will need to keep both offences and the framework under review. My noble friend Lady Berridge asked a good and clear question, to which I am afraid I do not have a similarly concise answer. I can reassure her that generated child sexual abuse and exploitation material is certainly illegal, but she asked about sexual harassment via a haptic suit; that would depend on the specific circumstances. I hope she will allow me to respond in writing, at greater length and more helpfully, to the very good question she asked.
Under Clause 56, Ofcom will also be required to undertake periodic reviews into the incidence and severity of content that is harmful to children on the in-scope services, and to recommend to the Secretary of State any appropriate changes to regulations based on its findings. Clause 141 also requires Ofcom to carry out research into users’ experiences of regulated services, which will likely include experiences of services such as the metaverse and other online spaces that allow user interaction. Under Clause 147, Ofcom may also publish reports on other online safety matters.
The questions posed by the noble Lord, Lord Russell of Liverpool, about international engagement are best addressed in a group covering regulatory co-operation, which I hope we will reach later today. I can tell him that we have introduced a new information-sharing gateway for the purpose of sharing information with overseas regulators, to ensure that Ofcom can collaborate effectively with its international counterparts. That builds on existing arrangements for sharing information that underpin Ofcom’s existing regulatory regimes.
The amendments tabled by the noble Lord, Lord Knight of Weymouth, relate to providers’ judgments about when content produced by bots is illegal content, or a fraudulent advertisement, under the Bill. Clause 170 sets out that providers will need to take into account all reasonably available relevant information about content when making a judgment about its illegality. As we discussed in the group about illegal content, providers will need to treat content as illegal when this information gives reasonable grounds for inferring that an offence was committed. Content produced by bots is in scope of providers’ duties under the Bill. This includes the illegal content duties, and the same principles for assessing illegal content will apply to bot-produced content. Rather than drawing inferences about the conduct and intent of the user who generated the content, the Bill specifies that providers should consider the conduct and the intent of the person who can be assumed to have controlled the bot at the point it created the content in question.
The noble Lord’s amendment would set out that providers could make judgments about whether bot-produced content is illegal, either by reference to the conduct or mental state of the person who owns the bot or, alternatively, by reference to the person who controls it. As he set out in his explanatory statement and outlined in his speech, I understand he has brought this forward because he is concerned that providers will sometimes not be able to identify the controller of a bot, and that this will impede providers’ duties to take action against illegal content produced by them. Even when the provider does not know the identity of the person controlling the bot, however, in many cases there will still be evidence from which providers can draw inferences about the conduct and intent of that person, so we are satisfied that the current drafting of the Bill ensures that providers will be able to make a judgment on illegality.
Lord Knight of Weymouth (Lab)
My concern is also whether or not the bot is out of control. Can the Minister clarify that issue?
Lord Parkinson of Whitley Bay (Con)
It depends on what the noble Lord means by “out of control” and what content the bot is producing. If he does not mind, this may be an issue which we should go through in technical detail and have a more free-flowing conservation with examples that we can work through.
Baroness Finlay of Llandaff (CB)
This is a very interesting discussion; the noble Lord, Lord Knight, has hit on something really important. When somebody does an activity that we believe is criminal, we can interrogate them and ask how they came to do it and got to the conclusion that they did. The difficulty is that those of us who are not super-techy do not understand how you can interrogate a bot or an AI which appears to be out of control on how it got to the conclusion that it did. It may be drawing from lots of different places and there may be ownership of lots of different sources of information. I wonder whether that is why we are finding how this will be monitored in future so concerning. I am reassured that the noble Lord, Lord Knight of Weymouth, is nodding; does the Minister concur that this may be a looming problem for us?
Lord Parkinson of Whitley Bay (Con)
I certainly concur that we should discuss the issue in greater detail. I am very happy to do so with the noble Lord, the noble Baroness and others who want to do so, along with officials. If we can bring some worked examples of what “in control” and “out of control” bots may be, that would be helpful.
I hope the points I have set out in relation to the other issues raised in this group and the amendments before us are satisfactory to noble Lords and that they will at this point be content not to press their amendments.
Baroness Harding of Winscombe (Con)
My Lords, I thank all noble Lords who have contributed to a thought-provoking and, I suspect, longer debate than we had anticipated. At Second Reading, I think we were all taken aback when this issue was opened up by my noble friend Lord Sarfraz; once again, we are realising that this requires really careful thought. I thank my noble friend the Minister for his also quite long and thoughtful response to this debate.
I feel that I owe the Committee a small apology. I am very conscious that I talked in quite graphic detail at the beginning when there were still children in the Gallery. I hope that I did not cause any harm, but it shows how serious this is that we have all had to think so carefully about what we have been saying—only in words, without any images. We should not underestimate how much this has demonstrated the importance of our debates.
On the comments of the noble Baroness, Lady Fox, I am a huge enthusiast, like the noble Lord, Lord Knight, for the wonders of the tech world and what it can bring. We are managing the balance in this Bill to make sure that this country can continue to benefit from and lead the opportunities of tech while recognising its real and genuine harms. I suggest that today’s debate has demonstrated the potential harm that the digital world can bring.
I listened carefully—as I am certain the noble Baroness, Lady Kidron, has been doing in the digital world—to my noble friend’s words. I am encouraged by what he has put on the record on Amendment 125, but there are some specific issues that it would be helpful for us to talk about, as he alluded to, after this debate and before Report. Let me highlight a couple of those.
First, I do not really understand the technical difference between a customer service bot and other bots. I am slightly worried that we are defining in the specific one type of bot that would not be captured by this Bill. I suspect that there might be others in future. We must think carefully through whether we are getting too much into the specifics of the technology and not general enough in making sure we capture where it could go. That is one example.
Secondly, as my noble friend Lady Berridge would say, I am not sure that we have got to the bottom of whether this Bill, coupled with the existing body of criminal law, will really enable law enforcement officers to progress the cases as they see fit and protect vulnerable women—and men—in the digital world. I very much hope we can extend the conversation there. We perhaps risk getting too close to the technical specifics if we are thinking about whether a haptic suit is in or out of scope of the Bill; I am certain that there will be other technologies that we have not even thought about yet that we will want to make sure that the Bill can capture.
I very much welcome the spirit in which this debate has been held. When I said that I would do this for the noble Baroness, Lady Kidron, I did not realise quite what a huge debate we were opening up, but I thank everyone who has contributed and beg leave to withdraw the amendment.
(iii) is not a sanctioned entity (see subsection (3A)).”Member’s explanatory statement
The effect of this amendment, combined with the next amendment in the Minister’s name, is that any entity which is designated for the purposes of sanctions regulations is not a “recognised news publisher” under this Bill, with the result that the Bill’s protections which relate to “news publisher content” don’t apply.
“(3A) A “sanctioned entity” is an entity which—(a) is designated by name under a power contained in regulations under section 1 of the Sanctions and Anti-Money Laundering Act 2018 that authorises the Secretary of State or the Treasury to designate persons for the purposes of the regulations or of any provisions of the regulations, or (b) is a designated person under any provision included in such regulations by virtue of section 13 of that Act (persons named by or under UN Security Council Resolutions).”Member’s explanatory statement
The effect of this amendment, combined with the preceding amendment in the Minister’s name, is that any entity which is designated for the purposes of sanctions regulations is not a “recognised news publisher” under this Bill, with the result that the Bill’s protections which relate to “news publisher content” don’t apply.
Member’s explanatory statement
This amendment and the next amendment in the Minister’s name ensure that restrictions on a user’s access to content resulting from the user voluntarily activating any feature of a service do not count as restrictions on users’ access for the purposes of Part 3 of the Bill.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsTuesday 23rd May 2023
(11 months, 2 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 87(Rev)-IX Ninth marshalled list for Committee - (23 May 2023)
Lord Knight of Weymouth (Lab)
My Lords, I regret that my noble friend Lord Lipsey is unable to be here. I wish him and the noble Lord, Lord McNally, well. I also regret that my noble friend Lord Stevenson is not here to wind up this debate and introduce his Amendment 127. Our inability to future-proof these proceedings means that, rather than talking to the next group, I am talking to this one.
I want to make four principal points. First, the principle of press freedom, as discussed by the noble Lords, Lord Black and Lord Faulks, in particular, is an important one. We do not think that this is the right Bill to reopen those issues. We look forward to the media Bill as the opportunity to discuss these things more fully across the House.
Secondly, I have some concerns about the news publisher exemption. In essence, as the noble Lord, Lord Clement-Jones, set out, as long as you have a standards code, a complaints process, a UK address and a team of contributors, the exemption applies. That feels a bit loose to me, and it opens up the regime to some abuse. I hear what the noble Baronesses, Lady Gohir and Lady Grey-Thompson, said about how we already see pretty dodgy outfits allowing racist and abusive content to proliferate. I look forward to the Minister’s comments on whether the bar we have at the moment is too low and whether there is some reflection to be done on that.
The third point is on my noble friend Lord Stevenson’s Amendment 127, which essentially says that we should set a threshold around whether complaints are dealt with in a timely manner. In laying that amendment, my noble friend essentially wanted to probe. The noble Lord, Lord Faulks, is here, so this is a good chance to have him listen to me say that we think that complaints should be dealt with more swiftly and that the organisation that he chairs could do better at dealing with that.
My fourth comment is about comments, particularly after listening to the speech of the noble Baroness, Lady Grey-Thompson, about some of the hateful comment that is hidden away inside the comments that news publishers carry. I was very much struck by what she said in respect of some of the systems of virality that are now being adopted by those platforms. There, I think Amendment 227 is tempting. I heard what the noble Baroness, Lady Stowell, said, and I think I agree that this is better addressed by Parliament.
For me, that just reinforces the need for this Bill, more than any other that I have ever worked on in this place, to have post-legislative scrutiny by Parliament so that we, as a Parliament, can review whether the regime we are setting up is running appropriately. It is such a novel regime, in particular around regulating algorithms and artificial intelligence. It would be an opportunity to see whether, in this case, the systems of virality were creating an amplification of harm away from the editorial function that the news publishers are able to exercise over the comments.
On that basis, and given the hour, I am happy to listen with care to the wise words of the Minister.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, I join noble Lords who have sent their best wishes to the noble Lords, Lord Lipsey and Lord McNally.
His Majesty’s Government are committed to defending the invaluable role of a free media. We are clear that our online safety legislation must protect the vital role of the press in providing people with reliable and accurate information.
We have included strong protections for news publishers’ and journalistic content in the Bill, which extends to the exemption from the Bill’s safety duties for users’ comments and reviews on news publishers’ sites. This reflects a wider exemption for comments and reviews on provider content more generally. For example, reviews of products on retailers’ sites are also exempt from regulation. This is designed to avoid disproportionate regulatory burden on low-risk services.
Amendment 124 intends to modify that exemption, so that the largest news websites no longer benefit and are subject to the Bill’s regulatory regime. Below-the-line comments are crucial for enabling reader engagement with the news and encouraging public debate, as well as for the sustainability—and, as the noble Baroness, Lady Fox, put it, the accountability—of the news media. We do not consider it proportionate, necessary or compatible with our commitment to press freedom to subject these comment sections to oversight by Ofcom.
We recognise that there can sometimes be unpleasant or abusive below-the-line comments. We have carefully considered the risks of this exemption against the need to protect freedom of speech and media freedoms on matters of public interest. Although comment functions will not be subject to online regulation, I reassure the Members of the Committee who raised concerns about some of the comments which have attracted particular attention that sites hosting such comments can, in some circumstances, be held liable for any illegal content appearing on them, where they have actual knowledge of the content in question and fail to remove it expeditiously.
The strong protections for recognised news publishers in the Bill include exempting their content from the Bill’s safety duties, requiring category 1 platforms to notify recognised news publishers and to offer a right of appeal before removing or moderating any of their content. Clause 50 stipulates the clear criteria that publishers will have to meet to be considered a “recognised news publisher” and to benefit from those protections. When drafting these criteria, the Government have been careful to ensure that established news publishers are captured, while limiting the opportunity for bad actors to qualify.
Amendment 126 seeks to restrict the criteria for recognised news publishers in the Bill, so that only members of an approved regulator within the meaning of Section 42 of the Crime and Courts Act 2013 benefit from the protections offered by the Bill. This would create strong incentives for publishers to join specific press regulators. We do not consider this to be compatible with our commitment to a free press. We will repeal existing legislation that could have that effect, specifically Section 40 of the Crime and Courts Act 2013, through the media Bill, as noble Lords have noted, which has recently been published. Without wanting to make a rod for my own back when we come to that Bill, I agree with my noble friend Lord Black of Brentwood that it would be the opportunity to have this debate, if your Lordships so wished.
The current effect of this amendment would be to force all news publishers to join a single press regulator—namely Impress, the only UK regulator which has sought approval by the Press Recognition Panel—if they were to benefit from the exclusion for recognised news publishers. Requiring a publisher to join specific regulators is, in the view of His Majesty’s Government, not only incompatible with protecting press freedom in the UK but unnecessary given the range of detailed criteria which a publisher must meet to qualify for the additional protections, as set out in Clause 50 of the Bill.
As part of our commitment to media freedom, we are committed to independent self-regulation of the press. As I have indicated, Clause 50 stipulates the clear criteria which publishers will have to meet to be considered a “recognised news publisher” and to benefit from the protections in the Bill. One of those criteria is for entities to have policies and procedures for handling and resolving complaints. Amendment 127 from the noble Lord, Lord Stevenson, adds a requirement that these policies and procedures must cover handling and resolving complaints “in a timely manner”. To include such a requirement will place the responsibility on Ofcom to decide what constitutes “timely”, and, in effect, put it in the position of press regulator. That is not something that we would like. We believe that the criteria set out in Clause 50 are already strong, and we have taken significant care to ensure that established news publishers are captured, while limiting the opportunity for bad actors to benefit.
I turn now to Amendment 227. We recognise that, as legislation comes into force, it will be necessary to ensure that the protections we have put in place for journalistic and news publisher content are effective. We need to ensure that the regulatory framework does not hinder access to such content, particularly in the light of the fact that, in the past, news content has sometimes been removed or made less visible by social media moderators or algorithms for unclear reasons, often at the height of news cycles. That is why we have required Ofcom to produce a specific report, under Clause 144, assessing the impact of the Bill on the availability and treatment of news publisher and journalistic content on category 1 services.
Lord Knight of Weymouth (Lab)
Before the Minister closes his folder and sits down, perhaps I could say that I listened carefully and would just like him to reflect a little more for us on my question of whether the bar is set too low and there is too much wriggle room in the exemption around news publishers. A tighter definition might be something that would benefit the Bill and the improvement of the Bill when we come back to it on Report.
Lord Parkinson of Whitley Bay (Con)
Looking at the length of Clause 50—and I note that the noble Lord, Lord Allan of Hallam, made much the same point in his speech—I think the definitions set out in Clause 50 are extensive. Clause 50(1) sets out a number of recognised news publishers, obviously including
“the British Broadcasting Corporation, Sianel Pedwar Cymru”—
self-evidently, as well as
“the holder of a licence under the Broadcasting Act 1990 or 1996”
or
“any other entity which … meets all of the conditions in subsection (2), and … is not an excluded entity”
as set out in subsection (3). Subsection (2) sets out a number of specific criteria which I think capture the recognised news publishers we want to see.
Noble Lords will be aware of the further provisions we have brought forward to make sure that entities that are subject to a sanction are not able to qualify, such as—
Lord Allan of Hallam (LD)
I think it is actually quite important that there is—to use the language of the Bill—a risk assessment around the notion that people might game it. I thought the noble Baroness, Lady Gohir, made a very good point. People are very inventive and, if you have ever engaged with the people who run some of those big US misinformation sites—let us just call them that—you will know that they have very inventive, very clever people. They will be looking at this legislation and if they figure out that by opening a UK office and ticking all the boxes they will now get some sorts of privileges in terms of distributing their misinformation around the world, they will do it. They will try it, so I certainly think it is worth there being at least some kind of risk assessment against that happening.
In two years’ time we will be able to see whether the bad thing happened, but whether or not it is the Minister having a conversation with Ofcom now, I just think that forewarned is forearmed. We know that that is a possibility and it would be helpful for some work to be done now to make sure that that is not a loophole that none of us want, I think.
Lord Parkinson of Whitley Bay (Con)
I am mindful of the examples the noble Lord gave in his speech. Looking at some of the provisions set out in subsection (2) about a body being
“subject to a standards code”
or having
“policies and procedures for handling and resolving complaints”,
I think on first response that those examples he gave would be covered. But I will certainly take on board the comments he made and those the noble Baroness, Lady Gohir, made as well and reflect on them. I hope—
Baroness Fox of Buckley (Non-Afl)
On a final point of clarification, in contrast, I think the exemption may be too narrow, not too broad. With the emergence of blogs and different kinds of news organisations—I think the noble Lord, Lord Allan, described well the complexity of what we have—and some of the grimmer, grosser examples of people who might play the system, does the Minister acknowledge that that might be dealt with by the kind of exemptions that have been used for RT? When somebody is really an extremist representative of, I do not know, ISIS, pretending to be a media organisation, the sensible thing to do would be to exempt them, rather than to overtighten the exemptions, so that new, burgeoning, widely read online publications can have press freedom protection.
Lord Parkinson of Whitley Bay (Con)
I will certainly take on board the points the noble Baroness raises. Hearing representations in both directions on the point would, on first consideration, reassure me that we have it right, but I will certainly take on board the points which the noble Baroness, the noble Lord and others have raised in our debate on this. As the noble Lord, Lord Allan, suggests, I will take the opportunity to discuss it with Ofcom, as we will do on many of the issues which we are discussing in this Committee, to make sure that its views are taken on board before we return to these and other issues on Report.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsTuesday 23rd May 2023
(11 months, 2 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 87(Rev)-IX Ninth marshalled list for Committee - (23 May 2023)
Lord Clement-Jones (LD)
My Lords, it is a pleasure to follow the noble Lord, Lord Bethell, who is clearly passionate about this aspect. As the noble Baroness, Lady Harding, said, this is one of the most important groups of amendments that we have to debate on the Bill, even though we are on day eight of Committee. As she said, it is about the right assignment of responsibilities, so it is fundamental to the way that the Bill will operate.
My noble friend Lord Allan brilliantly summed up many of the arguments, and he has graphically described the problem of ministerial overreach, as did the noble Baroness, Lady Harding. We on these Benches strongly support the amendments put forward by the noble Lord, Lord Stevenson, and those put forward by the noble Baroness, Lady Stowell. Obviously, there is some difference of emphasis. They each follow the trail of the different committees of which their proposers were members, which is entirely understandable. I recall that the noble Lord, Lord Gilbert, was the hinge between the two committees—and brilliantly he did that. I very much hope that, when we come back at the next stage, if the Minister has not moved very far, we will find a way to combine those two strands. I think they are extremely close—many noble Lords have set out where we are on accountability and oversight.
Strangely, we are not trying to get out of the frying pan of the Secretary of State being overbearing and move to where we have no parliamentary oversight. Both the noble Baroness, Lady Stowell, and the noble Lord, Lord Stevenson, are clearly in favour of greater oversight of Ofcom. The question is whether it is oversight of the codes and regulation or of Ofcom itself. I think we can find a way to combine those two strands. In that respect, I entirely agree with the noble Baroness, Lady Fox: it is all about making sure that we have the right kind of oversight.
I add my thanks to Carnegie UK. The noble Lord, Lord Stevenson, and the noble Baroness, Lady Stowell, set out the arguments, and we have the benefit of the noble Baroness’s letter to the Secretary of State of 30 January, which she mentioned in her speech. They have set out very clearly where speakers in this debate unanimously want to go.
The Government have suggested some compromise on Clause 39. As the noble Lord, Lord Stevenson said, we have not seen any wording for that, but I think it is highly unlikely that that, by itself, will satisfy the House when we come to Report.
There are many amendments here which deal with the Secretary of State’s powers, but I believe that the key ones are the product of both committees, which is about the Joint Committee. If noble Lords read the Government’s response to our Joint Committee on the draft Bill, they will see that the arguments given by the Government are extremely weak. I think it was the noble Baroness, Lady Stowell, who used the phrase “democratic deficit”. That is exactly what we are not seeking: we are trying to open this out and make sure we have better oversight and accountability. That is the goal of the amendments today. We have heard from the noble Viscount, Lord Colville, about the power of lobbying by companies. Equally, we have heard about how the Secretary of State can be overbearing. That is the risk we are trying to avoid. I very much hope that the Minister sees his way to taking on board at least some of whichever set of amendments he prefers.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, the amendments concern the independence of Ofcom and the role of parliamentary scrutiny. They are therefore indeed an important group, as those things will be vital to the success of the regime that the Bill sets up. Introducing a new, ground-breaking regime means balancing the need for regulatory independence with a transparent system of checks and balances. The Bill therefore gives powers to the Secretary of State comprising a power to direct Ofcom to modify a code of practice, a power to issue a statement of strategic priorities and a power to issue non-binding guidance to the regulator.
These powers are important but not novel; they have precedent in the Communications Act 2003, which allows the Secretary of State to direct Ofcom in respect of its network and spectrum functions, and the Housing and Regeneration Act 2008, which allows the Secretary of State to make directions to the Regulator of Social Housing to amend its standards. At the same time, I agree that it is important that we have proportionate safeguards in place for the use of these powers, and I am very happy to continue to have discussions with noble Lords to make sure that we do.
Amendment 110, from the noble Lord, Lord Stevenson, seeks to introduce a lengthier process regarding parliamentary approval of codes of practice, requiring a number of additional steps before they are laid in Parliament. It proposes that each code may not come into force unless accompanied by an impact assessment covering a range of factors. Let me reassure noble Lords that Ofcom is already required to consider these factors; it is bound by the public sector equality duty under the Equality Act 2010 and the Human Rights Act 1998 and must ensure that the regime and the codes of practice are compliant with rights under the European Convention on Human Rights. It must also consult experts on matters of equality and human rights when producing its codes.
Amendment 110 also proposes that any designated Select Committee in either House has to report on each code and impact assessment before they can be made. Under the existing process, all codes must already undergo scrutiny by both Houses before coming into effect. The amendment would also introduce a new role for the devolved Administrations. Let me reassure noble Lords that the Government are working closely with them already and will continue to do so over the coming months. As set out in Schedule 5 to the Scotland Act 1998, however, telecommunications and thereby internet law and regulation is a reserved policy area, so input from the devolved Administrations may be more appropriately sought through other means.
Amendments 111, 113, 114, 115, and 117 to 120 seek to restrict or remove the ability of the Secretary of State to issue directions to Ofcom to modify draft codes of practice. Ofcom has great expertise as a regulator, as noble Lords noted in this debate, but there may be situations where a topic outside its remit needs to be reflected in a code of practice. In those situations, it is right for the Government to be able to direct Ofcom to modify a draft code. This could, for example, be to ensure that a code reflects advice from the security services, to which Ofcom does not have access. Indeed, it is particularly important that the Secretary of State be able to direct Ofcom on matters of national security and public safety, where the Government will have access to information which Ofcom will not.
I have, however, heard the concerns raised by many in your Lordships’ House, both today and on previous occasions, that these powers could allow for too much executive control. I can assure your Lordships that His Majesty’s Government are committed to protecting the regulatory independence of Ofcom, which is vital to the success of the framework. With this in mind, we have built a number of safeguards into the use of the powers, to ensure that they do not impinge on regulatory independence and are used only in limited circumstances and for the appropriate reasons.
I have heard the strong feelings expressed that this power must not unduly restrict regulatory independence, and indeed share that feeling. In July, as noble Lords noted, the Government announced our intention to make substantive changes to the power; these changes will make it clear that the power is for use only in exceptional circumstances and will replace the “public policy” wording in Clause 39 with a defined list of reasons for which a direction can be made. I am happy to reiterate that commitment today, and to say that we will be making these changes on Report when, as the noble Lord, Lord Clement-Jones, rightly said, noble Lords will be able to see the wording and interrogate it properly.
Additionally, in light of the debate we have just had today—
Baroness Harding of Winscombe (Con)
Can my noble friend the Minister clarify what he has just said? When he appeared in front of the Communications and Digital Committee, I think he might have been road-testing some of that language. In the specific words used, he would still have allowed the Secretary of State to direct Ofcom for economic reasons. Is that likely to remain the case? If it is, I feel it will not actually meet what I have heard is the will of the Committee.
Lord Parkinson of Whitley Bay (Con)
When we publish the wording, we will rightly have an opportunity to discuss it before the debate on Report. I will be happy to discuss it with noble Lords then. On the broader points about economic policy, that is a competency of His Majesty’s Government, not an area of focus for Ofcom. If the Government had access to additional information that led them to believe that a code of practice as drafted could have a significant, disproportionate and adverse effect on the livelihoods of the British people or to the broader economy, and if it met the test for exceptional circumstances, taking action via a direction from the Secretary of State could be warranted. I will happily discuss that when my noble friend and others see the wording of the changes we will bring on Report. I am sure we will scrutinise that properly, as we should.
I was about to say that, in addition to the commitment we have already made, in the light of the debate today we will also consider whether transparency about the use of this power could be increased further, while retaining the important need for government oversight of issues that are genuinely beyond Ofcom’s remit. I am conscious that, as my noble friend Lady Stowell politely said, I did not convince her or your Lordships’ committee when I appeared before it with my honourable friend Paul Scully. I am happy to continue our discussions and I hope that we may reach some understanding on this important area.
Baroness Stowell of Beeston (Con)
I am sorry to interrupt, but may I clarify what my noble friend just said? I think he said that, although he is open to increasing the transparency of the procedure, he does not concede a change—from direction to a letter about guidance which Ofcom should take account of. Is he willing to consider that as well?
Lord Parkinson of Whitley Bay (Con)
I am happy to continue to discuss it, and I will say a bit more about the other amendments in this group, but I am not able to say much more at this point. I will happily follow this up in discussion with my noble friend, as I know it is an issue of interest to her and other members of your Lordships’ committee.
The noble Lord, Lord Stevenson, asked about our international obligations. As noble Lords noted, the Government have recognised the importance of regulatory independence in our work with international partners, such as the Council of Europe’s declaration on the independence of regulators. That is why we are bringing forward the amendments previously announced in another place. Ensuring that powers of direction can be issued only in exceptional circumstances and for a set of reasons defined in the Bill will ensure that the operational independence of Ofcom is not put at risk. That said, we must strike a balance between parliamentary oversight and being able to act quickly where necessary.
Regarding the amendment tabled by my noble friend Lady Stowell, which calls for all codes which have been altered by a direction to go through the affirmative procedure, as drafted, the negative procedure is used only if a direction is made to a code of practice relating to terrorism or child sexual exploitation or abuse, for reasons of national security or public safety. It is important that the parliamentary process be proportionate, particularly in cases involving national security or public safety, where a code might need to be amended quickly to protect people from harm. We therefore think that, in these cases, the negative procedure is more appropriate.
On timing, the Government are committed to ensuring that the framework is implemented quickly, and this includes ensuring that the codes of practice are in force. The threshold of exceptional circumstances for the power to direct can lead to a delay only in situations where there would otherwise be significant consequences for national security or public safety, or for the other reasons outlined today.
My noble friend Lord Moylan was not able to be here for the beginning of the debate on this group, but he is here now. Let me say a little about his Amendment 254. Under Clause 153, the Secretary of State can set out a statement of the Government’s strategic priorities in relation to matters of online safety. This power is necessary, as future technological changes are likely to shape online harms, and the Government must be able to state their strategic priorities in relation to them. My noble friend’s amendment would go beyond the existing precedent for the statement of strategic priorities in relation to telecommunications, management of the radio spectrum, and postal services outlined in the Communications Act. The Secretary of State must consult Ofcom and other appropriate persons when preparing this statement. This provides the opportunity for widespread scrutiny of a draft statement before it can be designated through a negative parliamentary procedure. We consider that the negative procedure is appropriate, in line with comparable existing arrangements.
Amendment 257 from the noble Lord, Lord Stevenson, seeks to remove the Secretary of State’s power to issue guidance to Ofcom about the exercise of its online safety functions. Issuing guidance of this kind, with appropriate safeguards, including consultation and limitations on its frequency, is an important part of future-proofing the regime. New information—for example, resulting from parliamentary scrutiny or technological developments—may require the Government to clarify the intent of the legislation.
Amendments 258 to 260 would require the guidance to be subject to the affirmative procedure in Parliament. Currently, Ofcom must be consulted, and any guidance must be laid before Parliament. The Bill does not subject the guidance to a parliamentary procedure because the guidance does not create any statutory requirements, and Ofcom is required only to have had regard to it. We think that remains the right approach.
The noble Lord, Lord Stevenson, has made clear his intention to question Clause 156, which grants the Secretary of State the power to direct Ofcom’s media literacy activity only in special circumstances. This ensures that the regulatory framework is equipped to respond to significant future threats—for example, to the health or safety of the public, or to national security. I have already set out, in relation to other amendments, why we think it is right that the Secretary of State can direct Ofcom in these circumstances.
The delegated powers in the Bill are crucial to ensuring that the regulatory regime keeps pace with changes in this area. Amendment 290 from the noble Lord, Lord Stevenson, would go beyond the existing legislative process for these powers, by potentially providing for additional committees to be, in effect, inserted into the secondary legislative process. Established committees themselves are able to decide whether to scrutinise parts of a regime in more detail, so I do not think they need a Parkinson rule to do that.
Noble Lords have expressed a common desire to see this legislation implemented as swiftly as possible, so I hope they share our wariness of any amendments which could slow that process down. The process as envisaged in this amendment is an open-ended one, which could delay implementation. Of course, however, it is important that Parliament is able to scrutinise the work of the regulator. Like most other regulators, Ofcom is accountable to Parliament on how it exercises its functions. The Secretary of State is required to present its annual report and accounts before both Houses. Ministers from Scotland, Wales and Northern Ireland must also lay a copy of the report before their respective Parliament or Assembly. Moreover, the officers of Ofcom can be required to appear before Select Committees to answer questions about its operations on an annual basis. Parliament will also have a role in approving a number of aspects of the regulatory framework through its scrutiny of both the primary and secondary legislation. This will include the priority categories for harms and Ofcom’s codes of practice.
More broadly, we want to ensure that this ground-breaking legislation has the impact we intend. Ongoing parliamentary scrutiny of it will be crucial to help to ensure that. There is so much expertise in both Houses, and it has already helped to improve this legislation, through the Joint Committee on the draft Bill, the DCMS Select Committee in another place and, of course, your Lordships’ Communications and Digital Committee.
As my noble friend Lady Stowell said, we must guard against fragmentation and duplication, which we are very mindful of. Although we do not intend to legislate for a new committee—as I set out on previous occasions, including at Second Reading and before the Communications and Digital Committee—we remain happy to discuss possible mechanisms for oversight to ensure that we make best use of the expertise in both Houses of Parliament so that the Bill delivers what we want. With that, I hope that Members of the Committee will be happy to continue the discussions in this area and not press their amendments.
Lord Stevenson of Balmacara (Lab)
I am grateful to the noble Lord for his comprehensive response and for the welcome change in tone and the openness to further debate and discussions. I thank all those who spoke in the debate. The noble Baroness, Lady Harding, was right: we are getting into a routine where we know roughly where our places are and, if we have contributions to make, we make them in the right order and make them comprehensive. We did our bit quite well, but I am afraid that the Minister’s response made me a bit confused. As I said, I welcome the change of tone, the sense of engagement with some of the issues and the ability to meet to discuss ways forward in some of those areas. But he then systematically and rather depressingly shut off just about everything that I thought we were going to discuss. I may be overstating that, so I will read Hansard carefully to make sure that there are still chinks of light in his hitherto impenetrable armour. I really must stop using these metaphors— I thought that the noble Baroness, Lady Harding, had managed to get me off the hook with her question about whether we were an island of concrete rock, and about whether the boat was going to end up in the stormy sea that we were creating. I decided that I could not follow that, so I will not.
We ought to take forward and address three things, which I will briefly go through in the response. One that we did not nail down was the good point made by the noble Baroness, Lady Kidron, that we had focused on regulatory structures in the form of set bodies relating—or not relating—to parliamentary procedures and to Ministers and their operations. She pointed out that, actually, the whole system has a possible drag effect that we also need to think about. I note that good point because we probably need a bit of time to think about how that would work in the structures that come forward.
The noble Lord, Lord Allan, said that we are trying to look at the changing of the accountability model. I disagree with the word “changing” because we are not trying to change anything; we have a model that works, but the new factor that we are trying to accommodate is the intensity of interaction and, as we said, the amplification that comes from the internet. I worry that this was not being picked up enough in the Minister’s response, but we will pick it up later and see if we can get through it.
The three points I wanted to make sure of were as follows. Following the line taken by the noble Baroness, Lady Stowell, one point is on trying to find a proper balance between the independence of the regulator; the Secretary of State’s right, as an elected leader of this aspect of the Government, to make recommendations and proposals to that regulator on how the system can be better; and Parliament’s ability to find a place in that structure, which is still eluding us a little, so we will need to spend more time on it. There is enough there to be reassured that we will find a way of balancing the independence of the regulator and the role of the Secretary of State. It does not need as many mentions in the legislation as it currently has. There is clearly a need for the Secretary of State to be able to issue direction in cases of national security et cetera—but it is the “et cetera” that I worry about: what are these instances? Until they are nailed down and in the Bill, there has to be a question about that.
Member’s explanatory statement
This amendment ensures that OFCOM need not produce guidance about the new duties in clauses 19 and 29 to supply records of risk assessments to OFCOM.
Lord Parkinson of Whitley Bay (Con)
As the noble Baroness, Lady Kidron, set out at the beginning of this debate, the amendments in this group have involved extensive discussions among Members in both Houses of Parliament, who sit on all sides of both Houses. I am very grateful for the way noble Lords and Members in another place have done that. They have had those preliminary discussions so that our discussions in the debate today and in preparation for it could be focused and detailed. I pay particular tribute to the noble Baroness, Lady Kidron, and my noble friends Lord Bethell and Lady Harding, who have been involved in extensive discussions with others and then with us in government. These have been very helpful indeed; they continue, and I am happy to commit to their continuing.
Age-assurance technologies will play an important role in supporting the child safety duties in this Bill. This is why reference is made to them on the face of the Bill—to make it clear that the Government expect these measures to be used for complying with the duties to protect children from harmful content and activity online. Guidance under Clause 48 will already cover pornographic content. While this is not currently set out in the legislation, the Government intend, as noble Lords know, to designate pornographic content as a category of primary priority content which is harmful to children. As I set out to your Lordships’ House during our debate on harms to children, we will amend the Bill on Report to list the categories of primary and primary priority content on the face of the Bill.
I am very grateful to noble Lords for the engagement we have had on some of the points raised in Amendments 142 and 306 in recent weeks. As we have been saying in those discussions, the Government are confident that the Bill already largely achieves the outcomes sought here, either through existing provisions in it or through duties in other legislation, including data protection legislation, the Human Rights Act 1998 and the Equality Act 2010. That is why we think that re-stating duties on providers which are already set out in the Bill, or repeating duties set out in other legislation, risks causing uncertainty, and why we need to be careful about imposing specific timelines on Ofcom by which it must produce age-assurance guidance. It is essential that we protect Ofcom’s ability robustly to fulfil its consultation duties for the codes of practice. If Ofcom is given insufficient time to fulfil these duties, the risk of legal challenge being successful is increased.
I welcome Ofcom’s recent letter to your Lordships, outlining its implementation road map, which I hope provides some reassurance directly from the regulator on this point. Ofcom will prioritise protecting children from pornography and other harmful content. It intends to publish, this autumn, draft guidance for Part 5 pornography duties and draft codes of practice for Part 3 illegal content duties, including for child sexual exploitation and abuse content. Draft codes of practice for children’s safety duties will follow next summer. These elements of the regime are being prioritised ahead of others, such as the category 1 duties, to reflect the critical importance of protecting children.
Although we believe that the Bill already largely achieves the outcomes sought, we acknowledge the importance of ensuring that there are clear principles for Ofcom to apply when recommending or requiring the use of age-assurance technologies. I am happy to reassure noble Lords that the Government will continue to consider this further and are happy to continue our engagement on this issue, although any amendment must be made in a way that sits alongside existing legislation and within the framework of the Bill.
I turn to Amendments 161 and 183. First, I will take the opportunity to address some confusion about the requirements in Parts 3 and 5 of the Bill. The Bill ensures that companies must prevent children accessing online pornography, regardless of whether it is regulated in Part 3 or Part 5. The Government are absolutely clear on this point; anything less would be unacceptable. The most effective approach to achieving this is to focus on the outcome of preventing children accessing harmful content, which is what the Bill does. If providers do not prevent children accessing harmful content, Ofcom will be able to bring enforcement action against them.
I will address the point raised by my noble friend Lord Bethell about introducing a standard of “beyond reasonable doubt” for age verification for pornography. As my noble friend knows, we think this a legally unsuitable test which would require Ofcom to determine the state of mind of the provider, which would be extremely hard to prove and would therefore risk allowing providers to evade their duties. A clear, objective duty is the best way to ensure that Ofcom can enforce compliance effectively. The Bill sets clear outcomes which Ofcom will be able to take action on if these are not achieved by providers. A provider will be compliant only if it puts in place systems and processes which meet the objective requirements of the child safety duties.
The provisions in the Bill on proportionality are important to ensure that the requirements in the child safety duties are tailored to the size and capacity of providers. Smaller providers or providers with less capacity are still required to meet the child safety duties where their services pose a risk to children. They will need to put in place sufficiently stringent systems and processes that reflect the level of risk on their services and will need to make sure these systems and processes achieve the required outcomes of the child safety duties.
The Government expect companies to use age-verification technologies to prevent children accessing services which pose the highest risk of harm to children, such as online pornography. However, companies may use another approach if it is proportionate to the findings of the child safety risk assessment and a provider’s size and capacity. This is an important element to ensure that the regulatory framework remains risk-based and proportionate.
Age verification may not always be the most appropriate or effective approach for user-to-user companies to comply with their duties. For example, if a user-to-user service such as a social medium does not allow—
Lord Stevenson of Balmacara (Lab)
I am sorry to interrupt. The Minister said that he would bear in mind proportionality in relation to size and capacity. Is that not exactly the point that the noble Baroness, Lady Harding, was trying to make? In relation to children, why will that be proportionate? A single child being damaged in this way is too much.
Lord Parkinson of Whitley Bay (Con)
The issue was in relation to a provider’s size and capacity; it is an issue of making sure it is effective and enforceable, and proportionate to the size of the service in question. It may also not be the most effective approach for companies to follow to comply with their duties. If there is a company such as a user-to-user service in social media that says it does not allow pornography under its terms of service, measures such as content moderation and user reporting might be more appropriate and effective for protecting children than age verification in those settings. That would allow content to be better detected and taken down, while—
Lord Stevenson of Balmacara (Lab)
I understand that, but it is an important point to try to get on the record. It is an outcome-based solution that we are looking for, is it not? We are looking for zero activity where risks to children are there. Clearly, if the risk assessment is that there is no risk that children can be on that site, age verification may not be required— I am extending it to make a point—but, if there is a risk, we need to know that the outcome of that process will be zero. That is my point, and I think we should reflect on that.
Lord Parkinson of Whitley Bay (Con)
I am very happy to, and the noble Lord is right that we must be focused on the outcomes here. I am very sympathetic to the desire to make sure that providers are held to the highest standards, to keep children protected from harmful content online.
Lord Bethell (Con)
I know the Minister said that outcomes are detailed in the Bill already; I wonder whether he could just write to us and describe where in the Bill those outcomes are outlined.
Lord Parkinson of Whitley Bay (Con)
I shall happily do that, and will happily continue discussions with my noble friend and others on this point and on the appropriate alternative to the language we have discussed.
On the matter of Ofcom independently auditing age- assurance technologies, which my noble friend also raised, the regulator already has the power to require a company to undertake and pay for a report from a skilled person about a regulated service. This will assist Ofcom in identifying and assessing non-compliance, and will develop its understanding of the risk of failure to comply. We believe that this is therefore already provided for.
I reassure noble Lords that the existing definition of pornographic content in the Bill already captures the same content that Amendment 183ZA, in the name of the noble Baroness, Lady Ritchie of Downpatrick, intends to capture. The definition in the Bill shares the key element of the approach Ofcom is taking for pornography on UK-established video-sharing platforms. This means that the industry will be familiar with this definition and that Ofcom will have experience in regulating content which meets it.
The definition is also aligned with that used in existing legislation. I take on board the point she made about her trawl of the statute book for it, but the definition is aligned elsewhere in statute, such as in the Coroners and Justice Act 2009. This means that, in interpreting the existing definition in the Bill, the courts may be able to draw on precedent from the criminal context, giving greater certainty about its meaning. The definition of pornography in Part 5 is also consistent with the British Board of Film Classification’s guidelines for the definition of sex works, which is
“works whose primary purpose is sexual arousal or stimulation”
and the BBFC’s definition of R18. We therefore think it is not necessary to refer to BBFC standards in this legislation. Including the definition in the Bill also retains Parliament’s control of the definition, and therefore also which content is subject to the duties in Part 5. That is why we believe that the definition as outlined in the Bill is more straightforward for both service providers and Ofcom to apply.
I turn to Amendments 184 and 185. The Government share the concerns raised in today’s debate about the wider regulation of online pornography. It is important to be clear that extreme pornography, so-called revenge pornography and child sexual exploitation and abuse are already illegal and are listed as priority offences in the Bill. This means that under the illegal content duties, Part 3 providers, which will include some of the most popular commercial pornography services, must take proactive, preventive measures to limit people’s exposure to this criminal content and behaviour.
Lord Bethell (Con)
Does my noble friend the Minister recognise that those laws have been in place for the 30 years of the internet but have not successfully been used to protect the rights of those who find their images wrongly used, particularly those children who have found their images wrongly used in pornographic sites? Does he have any reflections on how that performance could be improved?
Lord Parkinson of Whitley Bay (Con)
I would want to take advice and see some statistics, but I am happy to do that and to respond to my noble friend’s point. I was about to say that my noble friend Lady Jenkin of Kennington asked a number of questions, but she is not here for me to answer them.
I turn to Amendment 232 tabled by the noble Lord, Lord Allan of Hallam. Because of the rapid development of age-assurance technologies, it is right that they should be carefully assessed to ensure that they are used effectively to achieve the outcomes required. I am therefore sympathetic to the spirit of his amendment, but must say that Ofcom will undertake ongoing research into the effectiveness of age-assurance technologies for its various codes and guidance, which will be published. Moreover, when preparing or updating the codes of practice, including those that refer to age-assurance technologies, Ofcom is required by the Bill to consult a broad range of people and organisations. Parliament will also have the opportunity to scrutinise the codes before they come into effect, including any recommendations regarding age assurance. We do not think, therefore, that a requirement for Ofcom to produce a separate report into age-assurance technologies is a necessary extra burden to impose on the regulator.
In relation to this and all the amendments in this group, as I say, I am happy to carry on the discussions that we have been having with a number of noble Lords, recognising that they speak for a large number of people in your Lordships’ House and beyond. I reiterate my thanks, and the Government’s thanks, to them for the way in which they have been going about that. With that, I encourage them not to press their amendments.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsTuesday 16th May 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 87(Rev)-VII Seventh marshalled list for Committee - (12 May 2023)
“(ga) the Children’s Commissioner,(gb) the Commissioner for Victims and Witnesses,(gc) the Domestic Abuse Commissioner,”Member’s explanatory statement
This amendment provides that in preparing a draft code of practice or amendments of a code of practice under clause 36, OFCOM must also consult the Children’s Commissioner, the Commissioner for Victims and Witnesses and the Domestic Abuse Commissioner.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, the amendments in this group consider the role of collaboration and consultation in Ofcom’s approach. The proposals range in their intent, and include mandating additional roles for young people in the framework, adding new formal consultation requirements, and creating powers for Ofcom to work with other organisations.
I reassure noble Lords that the Government take these concerns extremely seriously. That is why the Bill already places the voices of experts, users and victims at the heart of the regime it establishes. In fact, the intent of many of the amendments in this group will already be delivered. That includes Ofcom working with others effectively to deliver the legislation, consulting on draft codes of practice, and having the ability to designate specific regulatory functions to other bodies where appropriate. Where we can strengthen the voices of users, victims or experts—without undermining existing processes, reducing the regulator’s independence or causing unacceptable delays—the Government are open to this. That is why I am moving the amendment today. However, as we have heard in previous debates, this is already a complex regulatory framework, and there is a widespread desire for it to be implemented quickly. Therefore, it is right that we guard against creating additional or redundant requirements which could complicate the regime or unduly delay implementation.
I turn to the amendment in my name. As noble Lords know, Ofcom will develop codes of practice setting out recommended measures for companies to fulfil their duties under the Bill. When developing those codes, Ofcom must consult various persons and organisations who have specific knowledge or expertise related to online harms. This process will ensure that the voices of users, experts and others are reflected in the codes, and, in turn, that the codes contain appropriate and effective measures.
One of the most important goals of the Bill, as noble Lords have heard me say many times, is the protection of children. It is also critical that the codes reflect the views of victims of online abuse, as well as the expertise of those who have experience in managing them. Therefore, the government amendment seeks to name the Commissioner for Victims and Witnesses, the domestic abuse commissioner and the Children’s Commissioner as statutory consultees under Clause 36(6). Ofcom will be required to consult those commissioners when preparing or amending a code of practice.
Listing these commissioners as statutory consultees will guarantee that the voices of victims and those who are disproportionately affected by online abuse are represented when developing codes of practice. This includes, in particular, women and girls—following on from our debate on the previous group—as well as children and vulnerable adults. This will ensure that Ofcom’s codes propose specific and targeted measures, such as on illegal content and content that is harmful to children, that platforms can take to address abuse effectively. I therefore hope that noble Lords will accept it.
I will say a little about some of the other amendments in this group before noble Lords speak to them. I look forward to hearing how they introduce them.
I appreciate the intent of Amendment 220E, tabled by the noble Lord, Lord Clement-Jones, and my noble friend Lady Morgan of Cotes, to address the seriousness of the issue of child sexual exploitation and abuse online. This amendment would allow Ofcom to designate an expert body to tackle such content. Where appropriate and effective, Section 1(7) of the Communications Act 2003 and Part II of the Deregulation and Contracting Out Act 1994 provide a route for Ofcom to enter into co-regulatory arrangements under the online safety framework.
There are a number of organisations that could play a role in the future regulatory framework, given their significant experience and expertise on the complex and important issue of tackling online child sexual exploitation and abuse. This includes the Internet Watch Foundation, which plays a pivotal role in the detection and removal of child sexual abuse material and provides vital tools to support its members to detect this abhorrent content.
A key difference from the proposed amendment is that the existing route, following consultation with Ofcom, requires an order to be made by a Minister, under the Deregulation and Contracting Out Act 1994, before Ofcom can authorise a co-regulator to carry out regulatory functions. Allowing Ofcom to do this, without the need for secondary legislation, would allow Ofcom to bypass existing parliamentary scrutiny when contracting out its regulatory functions under the Bill. By contrast, the existing route requires a draft order to be laid before, and approved by, each House of Parliament.
The noble Lord, Lord Knight of Weymouth, tabled Amendment 226, which proposes a child user advocacy body. The Government are committed to the interests of child users being represented and protected, but we believe that this is already achieved through the Bill’s existing provisions. There is a wealth of experienced and committed representative groups who are engaged with the regulatory framework. As the regulator, Ofcom will also continue to consult widely with a range of interested parties to ensure that it understands the experience of, and risks affecting, children online. Further placing children’s experiences at the centre of the framework, the Government’s Amendment 98A would name the Children’s Commissioner as a statutory consultee for the codes of practice. The child user advocacy body proposed in the noble Lord’s Amendment 226 may duplicate the Children’s Commissioner’s existing functions, which would create uncertainty, undermining the effectiveness of the Children’s Commissioner’s Office. The Government are confident that the Children’s Commissioner will effectively use her statutory duties and powers to understand children’s experiences of the digital realm.
For the reasons that I have set out, I am confident that children’s voices will be placed at the heart of the regime, with their interests defended and advocated for by the regulator, the Children’s Commissioner, and through ongoing engagement with civil society groups.
Similarly, Amendment 256, tabled by the noble Baroness, Lady Bennett of Manor Castle, seeks to require that any Ofcom advisory committees established by direction from the Secretary of State under Clause 155 include at least two young people. Ofcom has considerable experience in setting up committees of this kind. While there is nothing that would preclude committee membership from including at least two young people, predetermining the composition of any committee would not give Ofcom the necessary space and independence to run a transparent process. We feel that candidates should be appointed based on relevant understanding and technical knowledge of the issue in question. Where a board is examining issues with specific relevance to the interests of children, we would expect the committee membership to reflect that appropriately.
I turn to the statement of strategic priorities. As I hope noble Lords will agree, future changes in technology will likely have an impact on the experience people have online, including the nature of online harms. As provided for by Clause 153, the statement of strategic priorities will allow the Secretary of State to set out a statement of the Government’s strategic priorities in relation to online safety. This ensures that the Government can respond to changes in the digital and regulatory landscape at a strategic level. A similar power exists for telecommunications, the management of the radio spectrum, and postal services.
Amendments 251 to 253 seek to place additional requirements on the preparation of a statement before it can be designated. I reassure noble Lords that the existing consultation and parliamentary approval requirements allow for an extensive process before a statement can be designated. These amendments would introduce unnecessary steps and would move beyond the existing precedent in the Communications Act when making such a statement for telecommunications, the management of the radio spectrum, and postal services.
Finally, Amendment 284, tabled by the noble Lord, Lord Stevenson of Balmacara, proposes changes to Clause 171 on Ofcom’s guidance on illegal content judgments. Ofcom is already required to consult persons it considers appropriate before producing or revising the guidance, which could include the groups named in the noble Lord’s amendment. This amendment would oblige Ofcom to run formal public consultations on the illegal content guidance at two different stages: first, at a formative stage in the drafting process, and then before publishing a final version. These consultations would have to be repeated before subsequently amending or updating the guidance in any way. This would impose duplicative, time-consuming requirements on the regulator to consult, which are excessive when looking at other comparable guidance. The proposed consultations under this amendment would ultimately delay the publication of this instrumental guidance.
I will listen to what noble Lords have to say when they speak to their amendments, but these are the reasons why, upon first reading, we are unpersuaded by them.
Lord Clement-Jones (LD)
My Lords, I thank the Minister for opening the group. This is a slightly novel procedure: he has rebutted our arguments before we have even had a chance to put them—what is new? I hope he has another speech lined up for the end which accepts some of the arguments we put, to demonstrate that he has listened to all the arguments made in the debate.
I will speak mainly to Amendments 220E and 226, ahead of the noble Baroness, Lady Kidron; I understand that the noble Baroness, Lady Merron, will be speaking at the end of the group to Amendment 226. I am very grateful to the noble Baroness, Lady Morgan, for signing Amendment 220E; I know she feels very strongly about this issue as well.
As the Minister said, this amendment is designed to confirm the IWF’s role as the recognised body for dealing with notice and take-down procedures for child sexual abuse imagery in the UK and to ensure that its long experience and expertise continues to be put to best use. In our view, any delay in establishing the roles and responsibilities of expert organisations such as the IWF in working with Ofcom under the new regulatory regime risks leaving a vacuum in which the risks to children from this hateful form of abuse will only increase. I heard what the Minister said about the parliamentary procedure, but that is a much slower procedure than a designation by Ofcom, so I think that is going to be one of the bones of contention between us.
The Internet Watch Foundation is a co-regulatory body with over 25 years of experience working with the internet industry, law enforcement and government to prevent the uploading of, and to disable public access to, known child sexual abuse, and to secure the removal of indecent images and videos of children from the internet. The organisation has had some considerable success over the last 25 years, despite the problem appearing to be getting worse globally.
In 2022, it succeeded in removing a record 255,000 web pages containing child sexual abuse. It has also amassed a database of more than 1.6 million unique hashes of child sexual abuse material, which has been provided to the internet industry to keep its platforms free from such material. In 2020, the Independent Inquiry into Child Sexual Abuse concluded that, in the UK, the IWF
“sits at the heart of the national response to combating the proliferation of indecent images of children. It is an organisation that deserves to be acknowledged publicly as a vital part of how, and why, comparatively little child sexual abuse material is hosted in the UK”.
Lord Parkinson of Whitley Bay (Con)
I am grateful to noble Lords who have spoken to their amendments. Regarding the lead amendment in the group, I take on board what was said about its inevitable pre-emption—something that I know all too well from when the boot is on the other foot in other groups. However, I have listened to the points that were made and will of course respond.
I join the tributes rightly paid by noble Lords to the Internet Watch Foundation. The Government value its work extremely highly and would support the use of its expertise and experience in helping to deliver the aims of the Bill. My noble friend Lady Morgan of Cotes is right to say that it is on the front line of this work and to remind us that it encounters some of the most horrific and abhorrent content in the darkest recesses of the internet—something that I know well from my time as an adviser at the Home Office, as well as in this capacity now. Both the Secretary of State for Science, Innovation and Technology and the Minister for Safeguarding at the Home Office recently provided a foreword to the foundation’s latest annual report.
Clearly, Ofcom will need a wide variety of relationships with a range of organisations. Ofcom has been in regular contact with the Internet Watch Foundation, recognising its significant role in supporting the objectives of online safety regulation, and is discussing a range of options to make the best use of its expertise. The noble Lord, Lord Clement-Jones, asked what consultation and discussion is being had. We support the continuation of that engagement and are in discussions with the Internet Watch Foundation ourselves to understand how it envisages its role in supporting the regulatory environment. No decisions have been made on the co-regulatory role that other organisations may play. The Government will work with Ofcom to understand where it may be effective and beneficial to delivering the regulatory framework. Careful assessment of the governance, independence and funding of any organisations would be needed if co-designation were to be considered, but officials from the Department for Science, Innovation and Technology and the Home Office are in discussion with the IWF in relation to a memorandum of understanding to support ongoing collaboration.
On the designation of regulatory functions, we are satisfied that the powers under the Communications Act and the Deregulation and Contracting Out Act are sufficient, should other bodies be required to deliver specific aspects of the regime, so we do not see a need to amend the Bill in the way the amendments in this group suggest. Those Acts require an order from the Minister in order to designate any functions. The Minister has to consult Ofcom before making the order, and that is the mechanism that was used to appoint the Advertising Standards Authority to regulate broadcast advertising. It remains appropriate for Parliament to scrutinise the delivery of these important regulatory functions; accordingly, such an order cannot be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.
The noble Baroness, Lady Merron, dwelt on the decision not to include a child user advocacy body. As I said in my earlier remarks and in relation to other groups, the Bill ensures that children’s voices will be heard and that what they say will be acted on. Ofcom will have statutory duties requiring it to understand the opinions and experiences of users, including children, by consulting widely when developing its codes. Ofcom will also have the flexibility to establish other mechanisms for conducting research about users’ experience. Additionally, the super-complaints process, which we began discussing this afternoon, will make sure that entities, including those that represent the interests of children, will have their voices heard and will help Ofcom recognise and eliminate systemic failings.
We are also naming the Children’s Commissioner as a statutory consultee for Ofcom in developing its codes of practice. A further new child user advocacy body would encroach on the wider statutory functions of the Children’s Commissioner. Both bodies would have similar responsibilities and powers to represent the interests of child users of regulated services, to protect and promote the interests of child users of regulated services, and to be a statutory consultee for the drafting and amendment of Ofcom’s codes of practice.
The noble Baroness, Lady Kidron, when discussing the input of the Children’s Commissioner into the regulatory framework, suggested that it was a here and now issue. She is right: the Children’s Commissioner will represent children’s views to Ofcom in preparing the codes of practice to ensure that they are fully informing the regime, but the commissioner will also have a continuing role, as they will be the statutory consultee on any later amendments to the codes of practice relating to children. That will ensure that they can engage in the ongoing development of the regime and can continue to feed in insights on emerging risks identified through the commissioner’s statutory duty to understand children’s experiences.
The Bill further ensures that new harms and risks to children are proactively identified by requiring that Ofcom make arrangements to undertake research about users’ experiences on regulated services. This will build on the significant amount of research that Ofcom already does, better to understand children’s experience online, particularly their experiences of online harms.
The super-complaints process will enable an eligible entity to make a complaint to Ofcom regarding a provider or providers that cause significant harm or significant adverse impact on users, including children. This will help Ofcom to recognise and eliminate systemic failings, including those relating to children, and will ensure that children’s views and voices continue to inform the regime as it is developed.
The Bill will also require that Ofcom undertake consumer consultation in relation to regulated services. This will, in effect, expand the scope of the Communications Consumer Panel to online safety matters, and will ensure that the needs of users, including children, are at the heart of Ofcom’s regulatory approach.
I draw noble Lords’ attention to the provisions of Clause 141(2), which states that Ofcom must make arrangements to ascertain
“the experiences of United Kingdom users of regulated services”.
That, of course, includes children. I hope, therefore, that noble Lords will be satisfied that the voices of children are indeed being listened to throughout the operation of the Bill. However, we have high regard for the work of the Internet Watch Foundation. I hope that noble Lords will be willing not to press their amendments—after the noble Lord, Lord Clement-Jones, asks his question.
Lord Clement-Jones (LD)
My Lords, I am in the slightly strange position of not having moved the amendment, but I want to quickly respond. I was slightly encouraged by what the Minister said about Ofcom having been in regular contact with the IWF. I am not sure that that is mutual; maybe Ofcom thinks it is in good contact with the IWF, but I am not sure the IWF thinks it is in good contact with Ofcom. However, I am encouraged that the Minister at least thinks that that has been the case and that he is encouraging consultation and the continuation of engagement.
Lord Stevenson of Balmacara (Lab)
If I might follow up that comment, I agree entirely with what the noble Baroness has just said. It is very tricky for an independent charity to have the sort of relationship addressed in some of the language in this debate. Before the Minister completes his comments and sits down again, I ask him: if Ofcom were to negotiate a contracted set of duties with the IWF—indeed, with many other charities or others who are interested in assisting with this important work—could that be done directly by Ofcom, with powers that it already has? I think I am right to say that it would not require parliamentary approval. It is only if we are talking about co-regulation, which again raises other issues, that we would go through a process that requires what sounded like the affirmative procedure—the one that was used, for example, with the Advertising Standards Authority. Is that right?
Lord Parkinson of Whitley Bay (Con)
Yes, I think it is. I am happy to confirm that in writing. I am grateful to my noble friend Lady Stowell, who of course is a former chairman of the Charity Commission, for making the point about the charitable status of the foundation. I should clarify that officials from the Department for Science, Innovation and Technology and the Home Office are in touch with the IWF about its role.
Speedily moving on, Ofcom is in discussion with the foundation about a memorandum of understanding. I hope that reassures the noble Lord, Lord Clement-Jones, that they are in reciprocal contact. Obviously, I cannot pre-empt where their discussions are taking them in relation to that MoU, but it is between Ofcom and the foundation. Careful consideration of governance, funding and issues of charity, as my noble friend raised, would have to be thought about if co-designation were being considered.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsTuesday 16th May 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 87(Rev)-VII Seventh marshalled list for Committee - (12 May 2023)
Lord Stevenson of Balmacara (Lab)
My Lords, it is a pity that we have not had the benefit of hearing from the Minister, because a lot of his amendments in this group seem to bear on some of the more generic points made in the very good speech by the noble Baroness, Lady Fraser. I assume he will cover them, but I wonder whether he would at least be prepared to answer any questions people might come back with—not in any aggressive sense; we are not trying to scare the pants off him before he starts. For example, the points made by the noble Lord, Lord Clement-Jones, intrigue me.
I used to have responsibility for devolved issues when I worked at No. 10 for a short period. It was a bit of a joke, really. Whenever anything Welsh happened, I was immediately summoned down to Cardiff and hauled over the coals. You knew when you were in trouble when they all stopped speaking English and started speaking Welsh; then, you knew there really was an issue, whereas before I just had to listen, go back and report. In Scotland, nobody came to me anyway, because they knew that the then Prime Minister was a much more interesting person to talk to about these things. They just went to him instead, so I did not really learn very much.
I noticed some issues in the Marshalled List that I had not picked up on when I worked on this before. I do not know whether the Minister wishes to address this—I do not want to delay the Committee too much—but are we saying that to apply a provision in the Bill to the Bailiwick of Guernsey or the Isle of Man, an Order in Council is required to bypass Parliament? Is that a common way of proceeding in these places? I suspect that the noble and learned Lord, Lord Hope, knows much more about this than I do—he shakes his head—but this is a new one on me. Does it mean that this Parliament has no responsibility for how its laws are applied in those territories, or are there other procedures of which we are unaware?
My second point again picks up what the noble Lord, Lord Clement-Jones, was saying. Could the Minister go through in some detail the process by which a devolved authority would apply to the Secretary of State—presumably for DSIT—to seek consent for a devolved offence to be included in the Online Safety Bill regime? If this is correct, who grants to what? Does this come to the House as a statutory instrument? Is just the Secretary of State involved, or does it go to the Privy Council? Are there other ways that we are yet to know about? It would be interesting to know.
To echo the noble Lord, Lord Clement-Jones, we probably do need a letter from the Minister, if he ever gets this cleared, setting out exactly how the variation in powers would operate across the four territories. If there are variations, we would like to know about them.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, I am very grateful to my noble friend Lady Fraser of Craigmaddie for her vigilance in this area and for the discussion she had with the Bill team, which they and I found useful. Given the tenor of this short but important debate, I think it may be helpful if we have a meeting for other noble Lords who also want to benefit from discussing some of these things in detail, and particularly to talk about some of the issues the noble Lord, Lord Stevenson of Balmacara, just raised. It would be useful for us to talk in detail about general questions on the operation of the law before we look at this again on Report.
In a moment, I will say a bit about the government amendments which stand in my name. I am sure that noble Lords will not be shy in taking the opportunity to interject if questions arise, as they have not been shy on previous groups.
I will start with the amendments tabled by my noble friend Lady Fraser. Her Amendment 58 seeks to add reference to the Human Rights Act 1998 to Clause 18. That Act places obligations on public authorities to act compatibly with the European Convention on Human Rights. It does not place obligations on private individuals and companies, so it would not make sense for such a duty on internet services to refer to the Human Rights Act.
Under that Act, Ofcom has obligations to act in accordance with the right to freedom of expression under Article 10 of the European Convention on Human Rights. As a result, the codes that Ofcom draws up will need to comply with the Article 10 right to freedom of expression. Schedule 4 to the Bill requires Ofcom to ensure that measures which it describes in a code of practice are designed in light of the importance of protecting the right of users’
“freedom of expression within the law”.
Clauses 44(2) and (3) provide that platforms will be treated as complying with their freedom of expression duty if they take the recommended measures that Ofcom sets out in the codes. Platforms will therefore be guided by Ofcom in taking measures to comply with its duties, including safeguards for freedom of expression through codes of practice.
My noble friend’s Amendment 136 seeks to add offences under the Hate Crime and Public Order (Scotland) Act 2021 to Schedule 7. Public order offences are already listed in Schedule 7 to the Bill, which will apply across the whole United Kingdom. This means that all services in scope will need proactively to tackle content that amounts to an offence under the Public Order Act 1986, regardless of where the content originates or where in the UK it can be accessed.
The priority offences list has been developed with the devolved Administrations, and Clause 194 outlines the parliamentary procedures for updating it. The requirements for consent will be set out in the specific subordinate legislation that may apply to the particular offence being made by the devolved authorities—that is to say, they will be laid down by the enabling statutes that Parliament will have approved.
Amendment 228 seeks to require the inclusion of separate analyses of users’ online experiences in England, Wales, Scotland and Northern Ireland in Ofcom’s transparency reports. These transparency reports are based on the information requested from category 1, 2A and 2B service providers through transparency reporting. I assure my noble friend that Ofcom is already able to request country-specific information from providers in its transparency reports. The legislation sets out high-level categories of information that category 1, 2A and 2B services may be required to include in their transparency reports. The regulator will set out in a notice the information to be requested from the provider, the format of that information and the manner in which it should be published. If appropriate, Ofcom may request specific information in relation to each country in the UK, such as the number of users encountering illegal content and the incidence of such content.
Ofcom is also required to undertake consultation before producing guidance about transparency reporting. In order to ensure that the framework is proportionate and future-proofed, however, it is vital to allow the regulator sufficient flexibility to request the types of information that it sees as relevant, and for that information to be presented by providers in a manner that Ofcom has deemed to be appropriate.
Similarly, Amendment 225A would require separate analyses of users’ online experiences in England, Wales, Scotland and Northern Ireland in Ofcom’s research about users’ experiences of regulated services. Clause 141 requires that Ofcom make arrangements to undertake consumer research to ascertain public opinion and the experiences of UK users of regulated services. Ofcom will already be able to undertake this research on a country-specific basis. Indeed, in undertaking its research and reporting duties, as my noble friend alluded to, Ofcom has previously adopted such an approach. For instance, it is required by the Communications Act 2003 to undertake consumer research. While the legislation does not mandate that Ofcom conduct and publish nation-specific research, Ofcom has done so, for instance through its publications Media Nations and Connected Nations. I hope that gives noble Lords some reassurance of its approach in this regard. Ensuring that Ofcom has flexibility in carrying out its research functions will enable us to future-proof the regulatory framework, and will mean that its research activity is efficient, relevant and appropriate.
I will now say a bit about the government amendments standing in my name. I should, in doing so, highlight that I have withdrawn Amendments 304C and 304D, previously in the Marshalled List, which will be replaced with new amendments to ensure that all the communications offences, including the new self-harm offence, have the appropriate territorial extent when they are brought forward. They will be brought forward as soon as possible once the self-harm offence has been tabled.
Amendments 267A, 267B, 267C, 268A, 268B to 268G, 271A to 271D, 304A, 304B and 304E are amendments to Clauses 160, 162, 164 to 166, 168 and 210 and Schedule 14, relating to the extension of the false and threatening communications offences and the associated liability of corporate officers in Clause 166 to Northern Ireland.
This group also includes some technical and consequential amendments to the false and threatening communications offences and technical changes to the Malicious Communications (Northern Ireland) Order 1988 and Section 127 of the Communications Act 2003. This will minimise overlap between these existing laws and the new false and threatening communications offences in this Bill. Importantly, they mirror the approach taken for England and Wales, providing consistency in the criminal law.
This group also contains technical amendments to update the extent of the epilepsy trolling offence to reflect that it applies to England, Wales and Northern Ireland.
Lord Parkinson of Whitley Bay (Con)
Yes, that would be a sensible way to view it. We will work on that and allow noble Lords to see it before they come to talk to us about it.
Baroness Kidron (CB)
I put on record that the withdrawal of Part 3 of the Digital Economy Act 2017 will be greeted with happiness only should the full schedule of AV and harms be put into the Bill. I must say that because the noble Baroness, Lady Benjamin, is not in her place. She worked very hard for that piece of legislation.
Member’s explanatory statement
This is a technical amendment needed because the new duty to supply records of risk assessments to OFCOM (see the amendment in the Minister’s name inserting new subsection (8A) below) is imposed only on providers of Category 1 services.
“(8A) As soon as reasonably practicable after making a record of a risk assessment as required by subsection (2), or revising such a record, a duty to supply OFCOM with a copy of the record (in full).”Member’s explanatory statement
This amendment requires providers of Category 1 services to supply copies of their records of risk assessments to OFCOM. The limitation to Category 1 services is achieved by an amendment in the name of the Minister to clause 6.
Member’s explanatory statement
This technical amendment is consequential on the other changes to clause 20 (arising from the new duties in clauses 23, 25 and 29 which are imposed on providers of Category 2A services only - see the amendments in the Minister’s name to those clauses below).
Member’s explanatory statement
This technical amendment is consequential on the other changes to clause 20 (arising from the new duties in clauses 23, 25 and 29 which are imposed on providers of Category 2A services only - see the amendments in the Minister’s name to those clauses below).
Member’s explanatory statement
This amendment inserts a signpost to the new duty in clause 29 about supplying records of risk assessments to OFCOM.
Member’s explanatory statement
This is a technical amendment needed because the new duty to summarise illegal content risk assessments in a publicly available statement (see the amendment in the Minister’s name inserting new subsection (8A) below) is imposed only on providers of Category 2A services.
“(8A) A duty to summarise in a publicly available statement the findings of the most recent illegal content risk assessment of a service (including as to levels of risk and as to nature, and severity, of potential harm to individuals).”Member’s explanatory statement
This amendment requires providers of Category 2A services to summarise (in a publicly available statement) the findings of their latest risk assessment regarding illegal content. The limitation to Category 2A services is achieved by an amendment in the name of the Minister to clause 20.
Member’s explanatory statement
This amendment inserts a signpost to the new duty in clause 29 about supplying records of risk assessments to OFCOM.
Member’s explanatory statement
This amendment provides clarification because the new duty to summarise children’s risk assessments in a publicly available statement (see the amendment in the Minister’s name inserting new subsection (8A) below) is imposed only on providers of Category 2A services.
“(8A) A duty to summarise in a publicly available statement the findings of the most recent children’s risk assessment of a service (including as to levels of risk and as to nature, and severity, of potential harm to children).”Member’s explanatory statement
This amendment requires providers of Category 2A services to summarise (in a publicly available statement) the findings of their latest children’s risk assessment. The limitation to Category 2A services is achieved by an amendment in the name of the Minister to clause 20.
Member’s explanatory statement
This is a technical amendment needed because the new duty to supply records of risk assessments to OFCOM (see the amendment in the Minister’s name inserting new subsection (8A) below) is imposed only on providers of Category 2A services.
“(8A) As soon as reasonably practicable after making a record of a risk assessment as required by subsection (2), or revising such a record, a duty to supply OFCOM with a copy of the record (in full).”Member’s explanatory statement
This amendment requires providers of Category 2A services to supply copies of their records of risk assessments to OFCOM. The limitation to Category 2A services is achieved by an amendment in the name of the Minister to clause 20.
Lord Stevenson of Balmacara (Lab)
This has been a very good debate indeed. I have good days and bad days in Committee. Good days are when I feel that the Bill is going to make a difference and things are going to improve and the sun will shine. Bad days are a bit like today, where we have had a couple of groups, and this is one of them, where I am a bit worried about where we are and whether we have enough—I was going to use that terrible word “ammunition” but I do not mean that—of the powers that are necessary in the right place and with the right focus to get us through some of the very difficult questions that come in. I know that bad cases make bad law, but they can also illustrate why the law is not good enough. As the noble Baroness, Lady Kidron, was saying, this is possibly one of the areas we are in.
The speeches in the debate have made the case well and I do not need to go back over it. We have got ourselves into a situation where we want to reduce harm that we see around but do not want to impact freedom of expression. Both of those are so important and we have to hold on to them, but we find ourselves struggling. What do we do about that? We think through what we will end up with this Bill on the statute book and the codes of practice through it. This looks as though it is heading towards the question of whether the terms of service that will be in place will be sufficient and able to restrict the harms we will see affecting people who should not be affected by them. But I recognise that the freedom of expression arguments have won the day and we have to live with that.
The noble Baroness, Lady Kidron, mentioned the riskiness of the smaller sites—categories 2A and 2B and the ones that are not even going to be categorised as high as that. Why are we leaving those to cause the damage that they are? There is something not working here in the structure of the Bill and I hope the Minister will be able to provide some information on that when he comes to speak.
Obviously, if we could find a way of expressing the issues that are raised by the measures in these amendments as being illegal in the real world, they would be illegal online as well. That would at least be a solution that we could rely on. Whether it could be policed and serviced is another matter, but it certainly would be there. But we are probably not going to get there, are we? I am not looking at the Minister in any hope but he has a slight downward turn to his lips. I am not sure about this.
How can we approach a legal but harmful issue with the sort of sensitivity that does not make us feel that we have reduced people’s ability to cope with these issues and to engage with them in an adult way? I do not have an answer to that.
Is this another amplification issue or is it deeper and worse than that? Is this just the internet because of its ability to focus on things to keep people engaged, to make people stay online when they should not, to make them reach out and receive material that they ought not to get in a properly regulated world? Is it something that we can deal with because we have a sense of what is moral and appropriate and want to act because society wants us to do it? I do not have a solution to that, and I am interested to hear what the Minister will say, but I think it is something we will need to come back to.
Lord Parkinson of Whitley Bay (Con)
My Lords, like everyone who spoke, I and the Government recognise the tragic consequences of suicide and self-harm, and how so many lives and families have been devastated by it. I am grateful to the noble Baroness and all noble Lords, as well as the bereaved families who campaigned so bravely and for so long to spare others that heartache and to create a safer online environment for everyone. I am grateful to the noble Baroness, Lady Finlay of Llandaff, who raised these issues in her Private Member’s Bill, on which we had exchanges. My noble friend Lady Morgan is right to raise the case of Frankie Thomas and her parents, and to call that to mind as we debate these issues.
Amendments 96 and 296, tabled by the noble Baroness, Lady Finlay, would, in effect, reintroduce the former adult safety duties whereby category 1 companies were required to assess the risk of harm associated with legal content accessed by adults, and to set and enforce terms of service in relation to it. As noble Lords will know, those duties were removed in another place after extensive consideration. Those provisions risked creating incentives for the excessive removal of legal content, which would unduly interfere with adults’ free expression.
However, the new transparency, accountability and freedom of expression duties in Part 4, combined with the illegal and child safety duties in Part 3, will provide a robust approach that will hold companies to account for the way they deal with this content. Under the Part 4 duties, category 1 services will need to have appropriate systems and processes in place to deal with content or activity that is banned or restricted by their terms of service.
Many platforms—such as Twitter, Facebook and TikTok, which the noble Baroness raised—say in their terms of service that they restrict suicide and self-harm content, but they do not always enforce these policies effectively. The Bill will require category 1 companies—the largest platforms—fully to enforce their terms of service for this content, which will be a significant improvement for users’ safety. Where companies allow this content, the user-empowerment duties will give adults tools to limit their exposure to it, if they wish to do so.
The noble Baroness is right to raise the issue of algorithms. As the noble Lord, Lord Stevenson, said, amplification lies at the heart of many cases. The Bill will require providers specifically to consider as part of their risk assessments how algorithms could affect children’s and adults’ exposure to illegal content, and content that is harmful to children, on their services. Providers will need to take steps to mitigate and effectively manage any risks, and to consider the design of functionalities, algorithms and other features to meet the illegal content and child safety duties in the Bill.
Lord Allan of Hallam (LD)
Following our earlier discussion, we were going to have a response on super-complaints. I am curious to understand whether we had a pattern of complaints—such as those the noble Baroness, Lady Kidron, and others received—about a platform saying, under its terms of service, that it would remove suicide and self-harm content but failing to do so. Does the Minister think that is precisely the kind of thing that could be substantive material for an organisation to bring as a super-complaint to Ofcom?
Lord Parkinson of Whitley Bay (Con)
My initial response is, yes, I think so, but it is the role of Ofcom to look at whether those terms of service are enforced and to act on behalf of internet users. The noble Lord is right to point to the complexity of some marginal cases with which companies have to deal, but the whole framework of the Bill is to make sure that terms of service are being enforced. If they are not, people can turn to Ofcom.
Baroness Kidron (CB)
I am sorry to enter the fray again on complaints, but how will anyone know that they have failed in this way if there is no complaints system?
Lord Parkinson of Whitley Bay (Con)
I refer to the meeting my noble friend Lord Camrose offered; we will be able to go through and unpick the issues raised in that group of amendments, rather than looping back to that debate now.
Lord Clement-Jones (LD)
The Minister is going through the structure of the Bill and saying that what is in it is adequate to prevent the kinds of harms to vulnerable adults that we talked about during this debate. Essentially, it is a combination of adherence to terms of service and user-empowerment tools. Is he saying that those two aspects are adequate to prevent the kinds of harms we have talked about?
Lord Parkinson of Whitley Bay (Con)
Yes, they are—with the addition of what I am coming to. In addition to the duty for companies to consider the role of algorithms, which I talked about, Ofcom will have a range of powers at its disposal to help it assess whether providers are fulfilling their duties, including the power to require information from providers about the operation of their algorithms. The regulator will be able to hold senior executives criminally liable if they fail to ensure that their company is providing Ofcom with the information it requests.
However, we must not restrict users’ right to see legal content and speech. These amendments would prescribe specific approaches for companies’ treatment of legal content accessed by adults, which would give the Government undue influence in choosing, on adult users’ behalf, what content they see—
Lord Stevenson of Balmacara (Lab)
I wanted to give the Minister time to get on to this. Can we now drill down a little on the terms of service issue? If the noble Baroness, Lady Kidron, is right, are we talking about terms of service having the sort of power the Government suggest in cases where they are category 1 and category 2A but not search? There will be a limit, but an awful lot of other bodies about which we are concerned will not fall into that situation.
Also, I thought we had established, much to our regret, that the terms of service were what they were, and that Ofcom’s powers—I paraphrase to make the point—were those of exposure and transparency, not setting minimum standards. But even if we are talking only about the very large and far-reaching companies, should there not be a power somewhere to engage with that, with a view getting that redress, if the terms of service do not specify it?
Lord Parkinson of Whitley Bay (Con)
The Bill will ensure that companies adhere to their terms of service. If they choose to allow content that is legal but harmful on their services and they tell people that beforehand—and adults are able and empowered to decide what they see online, with the protections of the triple shield—we think that that strikes the right balance. This is at the heart of the whole “legal but harmful” debate in another place, and it is clearly reflected throughout the approach in the Bill and in my responses to all of these groups of amendments. But there are duties to tackle illegal content and to make sure that people know the terms of service for the sites they choose to interact with. If they feel that they are not being adhered to—as they currently are not in relation to suicide and self-harm content on many of the services—users will have the recourse of the regulator to turn to.
Lord Allan of Hallam (LD)
I will plant a flag in reference to the new offences, which I know we will come back to again. It is always helpful to look at real-world examples. There is a lot of meme-based self-harm content. Two examples are the Tide Pods challenge—the eating of detergent capsules—and choking games, both of which have been very common and widespread. It would be helpful, ahead of our debate on the new offences, to understand whether they are below or above the threshold of serious self-harm and what the Government’s intention is. There are arguments both ways: obviously, criminalising children for being foolish carries certain consequences, but we also want to stop the spread of the content. So, when we come to that offence, it would be helpful if the Minister could use specific examples, such as the meme-based self-harm content, which is quite common.
Lord Parkinson of Whitley Bay (Con)
I thank the noble Lord for the advance notice to think about that; it is helpful. It is difficult to talk in general terms about this issue, so, if I can, I will give examples that do, and do not, meet the threshold.
The Bill goes even further for children than it does for adults. In addition to the protections from illegal material, the Government have indicated, as I said, that we plan to designate content promoting suicide, self-harm or eating disorders as categories of primary priority content. That means that providers will need to put in place systems designed to prevent children of any age encountering this type of content. Providers will also need specifically to assess the risk of children encountering it. Platforms will no longer be able to recommend such material to children through harmful algorithms. If they do, Ofcom will hold them accountable and will take enforcement action if they break their promises.
It is right that the Bill takes a different approach for children than for adults, but it does not mean that the Bill does not recognise that young adults are at risk or that it does not have protections for them. My noble friend Lady Morgan was right to raise the issue of young adults once they turn 18. The triple shield of protection in the Bill will significantly improve the status quo by protecting adults, including young adults, from illegal suicide content and legal suicide or self-harm content that is prohibited in major platforms’ terms and conditions. Platforms also have strong commercial incentives, as we discussed in previous groups, to address harmful content that the majority of their users do not want to see, such as legal suicide, eating disorder or self-harm content. That is why they currently claim to prohibit it in their terms and conditions, and why we want to make sure that those terms and conditions are transparently and accountably enforced. So, while I sympathise with the intention from the noble Baroness, Lady Finlay, her amendments raise some wider concerns about mandating how providers should deal with legal material, which would interfere with the careful balance the Bill seeks to strike in ensuring that users are safer online without compromising their right to free expression.
The noble Baroness’s Amendment 240, alongside Amendment 225 in the name of the noble Lord, Lord Stevenson, would place new duties on Ofcom in relation to suicide and self-harm content. The Bill already has provisions to provide Ofcom with broad and effective information-gathering powers to understand how this content affects users and how providers are dealing with it. For example, under Clause 147, Ofcom can already publish reports about suicide and self-harm content, and Clauses 68 and 69 empower Ofcom to require the largest providers to publish annual transparency reports.
Ofcom may require those reports to include information on the systems and processes that providers use to deal with illegal suicide or self-harm content, with content that is harmful to children, or with content which providers’ own terms of service prohibit. Those measures sit alongside Ofcom’s extensive information-gathering powers. It will have the ability to access the information it needs to understand how companies are fulfilling their duties, particularly in taking action against this type of content. Furthermore, the Bill is designed to provide Ofcom with the flexibility it needs to respond to harms—including in the areas of suicide, self-harm and eating disorders—as they develop over time, in the way that the noble Baroness envisaged in her remarks about the metaverse and new emerging threats. So we are confident that these provisions will enable Ofcom to assess this type of content and ensure that platforms deal with it appropriately. I hope that this has provided the sufficient reassurance to the noble Baroness for her not to move her amendment.
Baroness Kidron (CB)
I asked a number of questions on specific scenarios. If the Minister cannot answer them straight away, perhaps he could write to me. They all rather called for “yes/no” answers.
Lord Parkinson of Whitley Bay (Con)
The noble Baroness threw me off with her subsequent question. She was broadly right, but I will write to her after I refresh my memory about what she said when I look at the Official Report.
Lord Parkinson of Whitley Bay (Con)
My Lords, protecting women and girls is a priority for His Majesty’s Government, at home, on our streets and online. This Bill will provide vital protections for women and girls, ensuring that companies take action to improve their safety online and protect their freedom of expression so that they can continue to play their part online, as well as offline, in our society.
On Amendments 94 and 304, tabled by my noble friend Lady Morgan of Cotes, I want to be unequivocal: all service providers must understand the systemic risks facing women and girls through their illegal content and child safety risk assessments. They must then put in place measures that manage and mitigate these risks. Ofcom’s codes of practice will set out how companies can comply with their duties in the Bill.
I assure noble Lords that the codes will cover protections against violence against women and girls. In accordance with the safety duties, the codes will set out how companies should tackle illegal content and activity confronting women and girls online. This includes the several crimes that we have listed as priority offences, which we know are predominantly perpetrated against women and girls. The codes will also cover how companies should tackle harmful online behaviour and content towards girls.
Companies will be required to implement systems and processes designed to prevent people encountering priority illegal content and minimise the length of time for which any such content is present. In addition, Ofcom will be required to carry out broad consultation when drafting codes of practice to harness expert opinions on how companies can address the most serious online risks, including those facing women and girls. Many of the examples that noble Lords gave in their speeches are indeed reprehensible. The noble Baroness, Lady Kidron, talked about rape threats and threats of violence. These, of course, are examples of priority illegal content and companies will have to remove and prevent them.
My noble friend Lady Morgan suggested that the Bill misses out the specific course of conduct that offences in this area can have. Clause 9 contains provisions to ensure that services
“mitigate and manage the risk of the service being used for the commission or facilitation of”
an offence. This would capture patterns of behaviour. In addition, Schedule 7 contains several course of conduct offences, including controlling and coercive behaviour, and harassment. The codes will set out how companies must tackle these offences where this content contributes to a course of conduct that might lead to these offences.
To ensure that women’s and girls’ voices are heard in all this, the Bill will, as the right reverend Prelate noted, make it a statutory requirement for Ofcom to consult the Victims’ Commissioner and the domestic abuse commissioner about the formation of the codes of practice. As outlined, the existing illegal content, child safety and child sexual abuse and exploitation codes will already cover protections for women and girls. Creating a separate code dealing specifically with violence against women and girls would mean transposing or duplicating measures from these in a separate code.
In its recent communication to your Lordships, Ofcom stated that it will be consulting quickly on the draft illegal content and child sexual abuse and exploitation codes, and has been clear that it has already started the preparatory work for these. If Ofcom were required to create a separate code on violence against women and girls this preparatory work would need to be revised, with the inevitable consequence of slowing down the implementation of these vital protections.
An additional stand-alone code would also be duplicative and could cause problems with interpretation and uncertainty for Ofcom and providers. Linked to this, the simpler the approach to the codes, the higher the rates of compliance are likely to be. The more codes there are covering specific single duties, the more complicated it will be for providers, which will have to refer to multiple different codes, and the harder for businesses to put in place the right protections for users. Noble Lords have said repeatedly that this is a complex Bill, and this is an area where I suggest we should not make it more complex still.
As the Bill is currently drafted, Ofcom is able to draft codes in a way that addresses a range of interrelated risks affecting different groups of users, such as people affected in more than one way; a number of noble Lords dealt with that in their contributions. For example, combining the measures that companies can take to tackle illegal content targeting women and girls with the measures they can take to tackle racist abuse online could ensure a more comprehensive and effective approach that recognises the point, which a number of noble Lords made, that people with more than one protected characteristic under the Equality Act may be at compound risk of harm. If the Bill stipulated that Ofcom separate the offences that disproportionately affect women and girls from other offences in Schedule 7, this comprehensive approach to tackling violence against women and girls online could be lost.
Baroness Morgan of Cotes (Con)
Could my noble friend the Minister confirm something? I am getting rather confused by what he is saying. Is it the case that there will be just one mega code of practice to deal with every single problem, or will there be lots of different codes of practice to deal with the problems? I am sure the tech platforms will have sufficient people to be able to deal with them. My understanding is that Ofcom said that, while the Bill might not mandate a code of practice on violence against women and girls, it would in due course be happy to look at it. Is that right, or is my noble friend the Minister saying that Ofcom will never produce a code of practice on violence against women and girls?
Lord Parkinson of Whitley Bay (Con)
It is up to Ofcom to decide how to set the codes out. What I am saying is that the codes deal with specific categories of threat or problem—illegal content, child safety content, child sexual abuse and exploitation—rather than with specific audiences who are affected by these sorts of problems. There is a circularity here in some of the criticism that we are not reflecting the fact that there are compound harms to people affected in more than one way and then saying that we should have a separate code dealing with one particular group of people because of one particular characteristic. We are trying to deal with categories of harm that we know disproportionately affect women and girls but which of course could affect others, as the noble Baroness rightly noted. Amendment 304—
Baroness Merron (Lab)
I thank the Minister for giving way. There is a bit of a problem that I would like to raise. I think the Minister is saying that there should not be a code of practice in respect of violence against women and girls. That sounds to me like there will be no code of practice in this one particular area, which seems rather harsh. It also does not tackle the issue on which I thought we were all agreed, even if we do not agree the way forward: namely, that women and girls are disproportionately affected. If it is indeed the case that the Minister feels that way, how does he suggest this is dealt with?
Lord Parkinson of Whitley Bay (Con)
There are no codes designed for Jewish people, Muslim people or people of colour, even though we know that they are disproportionately affected by some of these harms as well. The approach taken is to tackle the problems, which we know disproportionately affect all of those groups of people and many more, by focusing on the harms rather than the recipients of the harm.
Baroness Morgan of Cotes (Con)
Can I check something with my noble friend? This is where the illogicality is. The Government have mandated in the Strategic Policing Requirement that violence against women and girls is a national threat. I do not disagree with him that other groups of people will absolutely suffer abuse and online violence, but the Government themselves have said that violence against women and girls is a national threat. I understand that my noble friend has the speaking notes, the brief and everything else, so I am not sure how far we will get on this tonight, but, given the Home Office stance on it, I think that to say that this is not a specific threat would be a mistake.
Lord Parkinson of Whitley Bay (Con)
With respect, I do not think that that is a perfect comparison. The Strategic Policing Requirement is an operational policing document intended for chief constables and police and crime commissioners in the important work that they do, to make sure they have due regard for national threats as identified by the Home Secretary. It is not something designed for commercial technology companies. The approach we are taking in the Bill is to address harms that can affect all people and which we know disproportionately affect women and girls, and harms that we know disproportionately affect other groups of people as well.
We have made changes to the Bill: the consultation with the Victims’ Commissioner and the domestic abuse commissioner, the introduction of specific offences to deal with cyber-flashing and other sorts of particular harms, which we know disproportionately affect women and girls. We are taking an approach throughout the work of the Bill to reflect those harms and to deal with them. Because of that, respectfully, I do not think we need a specific code of practice for any particular group of people, however large and however disproportionately they are affected. I will say a bit more about our approach. I have said throughout, including at Second Reading, and my right honourable friend the Secretary of State has been very clear in another place as well, that the voices of women and girls have been heard very strongly and have influenced the approach that we have taken in the Bill. I am very happy to keep talking to noble Lords about it, but I do not think that the code my noble friend sets out is the right way to go about solving this issue.
Amendment 304 seeks to adopt the Istanbul convention definition of violence against women and girls. The Government are already compliant with the Convention on Preventing and Combating Violence Against Women and Domestic Violence, which was ratified last year. However, we are unable to include the convention’s definition of violence against women and girls in the Bill, as it extends to legal content and activity that is not in scope of the Bill as drafted. Using that definition would therefore cause legal uncertainty for companies. It would not be appropriate for the Government to require companies to remove legal content accessed by adults who choose to access it. Instead, as noble Lords know, the Government have brought in new duties to improve services’ transparency and accountability.
Amendment 104 in the name of the noble Lord, Lord Stevenson, seeks to require user-to-user services to provide a higher standard of protection for women, girls and vulnerable adults than for other adults. The Bill already places duties on service providers and Ofcom to prioritise responding to content and activity that presents the highest risk of harm to users. This includes users who are particularly affected by online abuse, such as women, girls and vulnerable adults. In overseeing the framework, Ofcom must ensure that there are adequate protections for those who are most vulnerable to harm online. In doing so, Ofcom will be guided by its existing duties under the Communications Act, which requires it to have regard when performing its duties to the
“vulnerability of children and of others whose circumstances appear to OFCOM to put them in need of special protection”.
The Bill also amends Ofcom’s general duties under the Communications Act to require that Ofcom, when carrying out its functions, considers the risks that all members of the public face online, and ensures that they are adequately protected from harm. This will form part of Ofcom’s principal duty and will apply to the way that Ofcom performs all its functions, including when producing codes of practice.
In addition, providers’ illegal content and child safety risk assessment duties, as well as Ofcom’s sectoral risk assessment duties, require them to understand the risk of harm to users on their services. In doing so, they must consider the user base. This will ensure that services identify any specific risks facing women, girls or other vulnerable groups of people.
As I have mentioned, the Bill will require companies to prioritise responding to online activity that poses the greatest risk of harm, including where this is linked to vulnerability. Vulnerability is very broad. The threshold at which somebody may arguably become vulnerable is subjective, context-dependent and maybe temporary. The majority of UK adult users could be defined as vulnerable in particular circumstances. In practice, this would be very challenging for Ofcom to interpret if it were added to the safety objectives in this way. The existing approach allows greater flexibility so that companies and Ofcom can focus on the greatest threats to different groups of people at any given time. This allows the Bill to adapt to and keep pace with changing risk patterns that may affect different groups of people.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsThursday 11th May 2023
(12 months 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 87(Rev)-VI(a) Amendments for Committee (Supplementary to the Sixth Marshalled List) - (10 May 2023)
Member’s explanatory statement
This is a technical amendment to make it clear that clause 14(9), which sets out circumstances which do not count as a provider “taking action” in relation to news publisher content, applies for the purposes of the whole clause.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, His Majesty’s Government are committed to defending the invaluable role of our free media. We are clear that our online safety legislation must protect the vital role of the press in providing people with reliable and accurate information. That is why this Bill includes strong protections for recognised news publishers. The Bill does not impose new duties on news publishers’ content, which is exempt from the Bill’s safety duties. In addition, the Bill includes strong safeguards for news publisher content, set out in Clause 14. In order to benefit from these protections, publishers will have to meet a set of stringent criteria, set out in Clause 50.
I am aware of concerns in your Lordships’ House and another place that the definition of news publishers is too broad and that these protections could therefore create a loophole to be exploited. That is why the Government are bringing forward amendments to the definition of “recognised news publisher” to ensure that sanctioned entities cannot benefit from these protections. I will shortly explain these protections in detail but I would like to be clear that narrowing the definition any further would pose a critical risk to our commitment to self-regulation of the press. We do not want to create requirements which would in effect put Ofcom in the position of a press regulator. We believe that the criteria set out in Clause 50 are already strong, and we have taken significant care to ensure that established news publishers are captured, while limiting the opportunity for bad actors to benefit.
Government Amendments 126A and 127A propose changes to the criteria for recognised news publishers. These criteria already exclude any entity that is a proscribed organisation under the Terrorism Act 2000 or the purpose of which is to support a proscribed organisation under that Act. We are clear that sanctioned news outlets such as RT, formerly Russia Today, must not benefit from these protections either. The amendments we are tabling today will therefore tighten the recognised news publisher criteria further by excluding entities that have been designated for sanctions imposed by both His Majesty’s Government and the United Nations Security Council. I hope noble Lords will accept these amendments, in order to ensure that content from publishers which pose a security threat to this country cannot benefit from protections designed to defend a free press.
In addition, the Government have also tabled amendments 50B, 50C, 50D, 127B, 127C and 283A, which are aimed at ensuring that the protections for news publishers in Clause 14 are workable and do not have unforeseen consequences for the operation of category 1 services. Clause 14 gives category 1 platforms a duty to notify recognised news publishers and offer a right of appeal before taking action against any of their content or accounts.
Clause 14 sets out the circumstances in which companies must offer news publishers an appeal. As drafted, it states that platforms must offer this before they take down news publisher content, before they restrict users’ access to such content or where they propose to “take any other action” in relation to publisher content. Platforms must also offer an appeal if they propose to take action against a registered news publisher’s account by giving them a warning, suspending or banning them from using a service or in any way restricting their ability to use a service.
These amendments provide greater clarity about what constitutes “taking action” in relation to news publisher content, and therefore when category 1 services must offer an appeal. They make it clear that a platform must offer this before they take down such content, add a warning label or take any other action against content in line with any terms of service that allow or prohibit content. This will ensure that platforms are not required to offer publishers a right of appeal every time they propose to carry out routine content curation and similar routine actions. That would be unworkable for platforms and would be likely to inhibit the effectiveness of the appeal process.
As noble Lords know, the Bill has a strong focus on user empowerment and enabling users to take control of their online experience. The Government have therefore tabled amendments to Clause 52 to ensure that providers are required only to offer publishers a right of appeal in relation to their own moderation decisions, not where a user has voluntarily chosen not to view certain types of content. For example, if a user has epilepsy and has opted not to view photo-sensitive content, platforms will not be required to offer publishers a right of appeal before restricting that content for the user in question.
In addition, to ensure that the Bill maintains strong protections for children, the amendments make it clear that platforms are not required to offer news publishers an appeal before applying warning labels to content viewed by children. The amendments also make it clear that platforms would be in breach of the legislation if they applied warning labels to content encountered by adults without first offering news publishers an appeal, but in order to ensure that the Bill maintains strong protections for children, that does not apply to warning labels on content encountered by children. I beg to move.
Baroness Stowell of Beeston (Con)
My Lords, I welcome the amendments the Government have tabled, but I ask the Minister to clarify the effect of Amendment 50E. I declare an interest as chair of the Communications and Digital Select Committee, which has discussed Amendment 50E and the labelling of content for children with the news media organisations. This is a very technical issue, but from what my noble friend was just saying, it seems that content that would qualify for labelling for child protection purposes, and which therefore does not qualify for a right of appeal before the content is so labelled, is not content that would normally be encountered by adults but might happen to appeal to children. I would like to be clear that we are not giving the platforms scope for adding labels to content that they ought not to be adding labels to. That aside, as I say, I am grateful to my noble friend for these amendments.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am sorry; in my enthusiasm to get this day of Committee off to a swift start, I perhaps rattled through that rather quickly. On Amendment 50E, which my noble friend Lady Stowell asked about, I make clear that platforms will be in breach of their duties if, without applying the protection, they add warning labels to news publishers’ content that they know will be seen by adult users, regardless of whether that content particularly appeals to children.
As the noble Lord, Lord Clement-Jones, and others noted, we will return to some of the underlying principles later on, but the Government have laid these amendments to clarify category 1 platforms’ duties to protect recognised news publishers’ content. They take some publishers out of scope of the protections and make it clearer that category 1 platforms will have only to offer news publishers an appeal before taking punitive actions against their content.
The noble Baroness, Lady Fox, asked about how we define “recognised news publisher”. I am conscious that we will debate this more in later groups, but Clause 50 sets out a range of criteria that an organisation must meet to qualify as a recognised news publisher. These include the organisation’s “principal purpose” being the publication of news, it being subject to a “standards code” and its content being “created by different persons”. The protections for organisations are focused on publishers whose primary purpose is reporting on news and current affairs, recognising the importance of that in a democratic society. I am grateful to noble Lords for their support.
Baroness Stowell of Beeston (Con)
What my noble friend said is absolutely fine with me, and I thank him very much for it. It might be worth letting the noble Baroness, Lady Fox, know that Amendment 127 has now been moved to the group that the noble Lord, Lord Clement-Jones, referred to. I thought it was worth offering that comfort to the noble Baroness.
Member’s explanatory statement
This amendment omits a provision about OFCOM’s guidance under clause 171, as that provision is now to be made in clause 171 itself.
“(8A) In determining what is proportionate for the purposes of subsection (2), the size and capacity of the provider of a service, in particular, is relevant.”Member’s explanatory statement
This amendment indicates that the size and capacity of a provider is important in construing the reference to “proportionate systems and processes” in clause 15 (duties to protect journalistic content).
Lord Parkinson of Whitley Bay (Con)
My Lords, this debate has demonstrated the diversity of opinion regarding misinformation and disinformation—as the noble Lord said, the Joint Committee gave a lot of thought to this issue—as well as the difficulty of finding the truth of very complex issues while not shutting down legitimate debate. It is therefore important that we legislate in a way that takes a balanced approach to tackling this, keeping people safe online while protecting freedom of expression.
The Government take misinformation and disinformation very seriously. From Covid-19 to Russia’s use of disinformation as a tool in its illegal invasion of Ukraine, it is a pervasive threat, and I pay tribute to the work of my noble friend Lord Bethell and his colleagues in the Department of Health and Social Care during the pandemic to counter the cynical and exploitative forces that sought to undermine the heroic effort to get people vaccinated and to escape from the clutches of Covid-19.
We recognise that misinformation and disinformation come in many forms, and the Bill reflects this. Its focus is rightly on tackling the most egregious, illegal forms of misinformation and disinformation, such as content which amounts to the foreign interference offence or which is harmful to children—for instance, that which intersects with named categories of primary priority or priority content.
That is not the only way in which the Bill seeks to tackle it, however. The new terms of service duties for category 1 services will hold companies to account over how they say they treat misinformation and disinformation on their services. However, the Government are not in the business of telling companies what legal content they can and cannot allow online, and the Bill should not and will not prevent adults accessing legal content. In addition, the Bill will establish an advisory committee on misinformation and disinformation to provide advice to Ofcom on how they should be tackled online. Ofcom will be given the tools to understand how effectively misinformation and disinformation are being addressed by platforms through transparency reports and information-gathering powers.
Amendment 52 from the noble Baroness, Lady Merron, seeks to introduce a new duty on platforms in relation to health misinformation and disinformation for adult users, while Amendments 59 and 107 from my noble friend Lord Moylan aim to introduce new proportionality duties for platforms tackling misinformation and disinformation. The Bill already addresses the most egregious types of misinformation and disinformation in a proportionate way that respects freedom of expression by focusing on misinformation and disinformation that are illegal or harmful to children.
Baroness Kidron (CB)
I am curious as to what the Bill says about misinformation and disinformation in relation to children. My understanding of primary priority and priority harms is that they concern issues such as self-harm and pornography, but do they say anything specific about misinformation of the kind we have been discussing and whether children will be protected from it?
Lord Parkinson of Whitley Bay (Con)
I am sorry—I am not sure I follow the noble Baroness’s question.
Baroness Kidron (CB)
Twice so far in his reply, the Minister has said that this measure will protect children from misinformation and disinformation. I was just curious because I have not seen any sight of that, either in discussions or in the Bill. I was making a distinction regarding harmful content that we know the shape of—for example, pornography and self-harm, which are not, in themselves, misinformation or disinformation of the kind we are discussing now. It is news to me that children are going to be protected from this, and I am delighted, but I was just checking.
Lord Parkinson of Whitley Bay (Con)
Yes, that is what the measure does—for instance, where it intersects with the named categories of primary priority or priority content in the Bill, although that is not the only way the Bill does it. This will be covered by non-designated content that is harmful to children. As we have said, we will bring forward amendments on Report—which is perhaps why the noble Baroness has not seen them in the material in front of us—regarding material harms to children, and they will provide further detail and clarity.
Returning to the advisory committee that the Bill sets up and the amendments from the noble Baroness, Lady Merron, and my noble friend Lord Moylan, all regulated service providers will be forced to take action against illegal misinformation and disinformation in scope of the Bill. That includes the new false communication offences in the Bill that will capture communications where the sender knows the information to be false but sends it intending to cause harm—for example, hoax cures for a virus such as Covid-19. The noble Baroness is right to say that that is a slightly different approach from the one taken in her amendment, but we think it an appropriate and proportionate response to tackling damaging and illegal misinformation and disinformation. If a platform is likely to be accessed by children, it will have to protect them from encountering misinformation and disinformation content that meets the Bill’s threshold for content that is harmful to children. Again, that is an appropriate and proportionate response.
Turning to the points made by my noble friend Lord Moylan and the noble Baroness, Lady Fox, services will also need to have particular regard to freedom of expression when complying with their safety duties. Ofcom will be required to set out steps that providers can take when complying with their safety duties in the codes of practice, including what is proportionate for different providers and how freedom of expression can be protected.
Lord Moylan (Con)
This might be an appropriate moment for me to say—on the back of that—that, although my noble friend explained current government practice, he has not addressed my point on why there should not be an annual report to Parliament that describes what government has done on these various fronts. If the Government regularly meet newspaper publishers to discuss the quality of information in their newspapers, I for one would have entire confidence that the Government were doing so in the public interest, but I would still quite like—I think the Government would agree on this—a report on what was happening, making an exception for national security. That would still be a good thing to do. Will my noble friend explain why we cannot be told?
Lord Parkinson of Whitley Bay (Con)
While I am happy to elaborate on the work of the counter-disinformation unit in the way I just have, the Government cannot share operational details about its work, as that would give malign actors insight into the scope and scale of our capabilities. As my noble friend notes, this is not in the public interest. Moreover, reporting representations made to platforms by the unit would also be unnecessary as this would overlook both the existing processes that govern engagements with external parties and the new protections that are introduced through the Bill.
In the first intervention, the noble Baroness, Lady Fox, gave a number of examples, some of which are debatable, contestable facts. Companies may well choose to keep them on their platforms within their terms of service. We have also seen deliberate misinformation and disinformation during the pandemic, including from foreign actors promoting more harmful disinformation. It is right that we take action against this.
I hope that I have given noble Lords some reassurance on the points raised about the amendments in this group. I invite them not to press the amendments.
Baroness Merron (Lab)
My Lords, I am most grateful to noble Lords across the Committee for their consideration and for their contributions in this important area. As the noble Baroness, Lady Kidron, and the noble Lord, Lord Clement-Jones, both said, this was an area of struggle for the Joint Committee. The debate today shows exactly why that is so, but it is a struggle worth having.
The noble Lord, Lord Bethell, talked about there being a gap in the Bill as it stands. The amendments include the introduction of risk assessments and transparency and, fundamentally, explaining things in a way that people can actually understand. These are all tried and tested methods and can serve only to improve the Bill.
I am grateful to the Minister for his response and consideration of the amendments. I want to take us back to the words of the noble Baroness, Lady Kidron. She explained it beautifully—partly in response to the comments from the noble Baroness, Lady Fox. This is about tackling a system of amplification of misinformation and disinformation that moves the most marginal of views into the mainstream. It deals with restricting the damage that, as I said earlier, can produce the most dire circumstances. Amplification is the consideration that these amendments seek to tackle.
I am grateful to the noble Lord, Lord Moylan, for his comments, as well as for his amendments. I am sure the noble Lord has reflected that some of the previous amendments he brought before the House somewhat put the proverbial cat among the Committee pigeons. On this occasion, I think the noble Lord has nicely aligned the cats and the pigeons. He has managed to rally us all—with the exception of the Minister—behind these amendments.
Lord Parkinson of Whitley Bay (Con)
My Lords, this has been a good debate. I am glad that a number of noble Lords mentioned Lord Puttnam and the committee that he chaired for your Lordships’ House on democracy and digital technologies. I responded to the debate that we had on that; sadly, it was after he had already retired from your Lordships’ House, but he participated from the steps of the Throne. I am mindful of that report and the lessons learned in it in the context of the debate that we have had today.
We recognise the intent behind the amendments in this group to strengthen the UK’s approach to media literacy in so far as it relates to services that will be regulated by the Bill. Ofcom has a broad duty to promote media literacy under the Communications Act 2003. That is an important responsibility for Ofcom, and it is right that the regulator is able to adapt its approach to support people in meeting the evolving challenges of the digital age.
Amendments 52A and 91 from the noble Lord, Lord Knight, and Amendment 91A from the noble Lord, Lord Holmes of Richmond, seek to introduce duties on in-scope services, requiring them to put in place measures that promote users’ media literacy, while Amendment 98 tabled by the noble Lord, Lord Knight, would require Ofcom to issue a code of practice in relation to the new duty proposed in his Amendment 91. While we agree that the industry has a role to play in promoting media literacy, the Government believe that these amendments could lead to unintended, negative consequences.
I shall address the role of the industry and media literacy, which the noble Baroness, Lady Kidron, dwelt on in her remarks. We welcome the programmes that it runs in partnership with online safety experts such as Parent Zone and Internet Matters and hope they continue to thrive, with the added benefit of Ofcom’s recently published evaluation toolkit. However, we believe that platforms can go further to empower and educate their users. That is why media literacy has been included in the Bill’s risk assessment duties, meaning that regulated services will have to consider measures to promote media literacy to their users as part of the risk assessment process. Additionally, through work delivered under its existing media literacy duty, Ofcom is developing a set of best-practice design principles for platform-based media literacy measures. That work will build an evidence base of the most effective measures that platforms can take to build their users’ media literacy.
In response to the noble Baroness’s question, I say: no, platforms will not be able to avoid putting in place protections for children by using media literacy campaigns. Ofcom would be able to use its enforcement powers if a platform was not achieving appropriate safety outcomes. There are a range of ways in which platforms can mitigate risks, of which media literacy is but one, and Ofcom would expect platforms to consider them all in their risk assessments.
Let me say a bit about the unintended consequences we fear might arise from these amendments. First, the resource demands to create a code of practice and then to regulate firms’ compliance with this type of broad duty will place an undue burden on the regulator. It is also unclear how the proposed duties in Amendments 52A, 91 and 91A would interact with Ofcom’s existing media literacy duty. There is a risk, we fear, that these parallel duties could be discharged in conflicting ways. Amendment 91A is exposed to broad interpretation by platforms and could enable them to fulfil the duty in a way that lacked real impact on users’ media literacy.
The amendment in the name of my noble friend Lord Holmes proposes a duty to promote awareness of financial deception and fraud. The Government are already taking significant action to protect people from online fraud, including through their new fraud strategy and other provisions in this Bill. I know that my noble friends Lord Camrose, Lord Sharpe of Epsom and Lady Penn met noble Lords to talk about that earlier this week. We believe that measures such as prompts for users before they complete financial transactions sit more logically with financial service providers than with services in scope of this Bill.
Amendment 52A proposes a duty on carriers of journalistic content to promote media literacy to their users. We do not want to risk requiring platforms to act as de facto press regulators, assessing the quality of news publishers’ content. That would not be compatible with our commitment to press freedom. Under its existing media literacy duty, Ofcom is delivering positive work to support people to discern high-quality information online. It is also collaborating with the biggest platforms to design best practice principles for platform-based media literacy measures. It intends to publish these principles this year and will encourage platforms to adopt them.
It is right that Ofcom is given time to understand the benefits of these approaches. The Secretary of State’s post-implementation review will allow the Government and Parliament to establish the effectiveness of Ofcom’s current approach and to reconsider the role of platforms in enhancing users’ media literacy, if appropriate. In the meantime, the Bill introduces new transparency-reporting and information-gathering powers to enhance Ofcom’s visibility of platforms delivery and evaluation of media literacy activities. We would not want to see amendments that would inadvertently dissuade platforms from delivering these activities in favour of less costly and less effective measures.
My noble friend Lord Holmes asked about the Online Media Literacy Strategy, published in July 2021, which set out the Government’s vision for improving media literacy in the country. Alongside the strategy, we have committed to publishing annual action plans each financial year until 2024-25, setting out how we meet the ambition of the strategy. In April 2022 we published the Year 2 Action Plan, which included extending the reach of media literacy education to those who are currently disengaged, in consultation with the media literacy task force—a body of 17 cross-sector experts—expanding our grant funding programme to provide nearly £2.5 million across two years for organisations delivering innovative media literacy activities, and commissioning research to improve our understanding of the challenges faced by the sector. We intend to publish the research later this year, for the benefit of civil society organisations, technology platforms and policymakers.
The noble Lord, Lord Knight, in his Amendment 186, would stipulate that Ofcom must levy fees on regulated firms sufficient to fund the work of third parties involved in supporting it to meet its existing media literacy duties. The Bill already allows Ofcom to levy fees sufficient to fund the annual costs of exercising its online safety functions. This includes its existing media literacy duty as far as it relates to services regulated by this Bill. As such, the Bill already ensures that these media literacy activities, including those that Ofcom chooses to deliver through third parties, can be funded through fees levied on industry.
I turn to Amendments 188, 235, 236, 237 and 238. The Government recognise the intent behind these amendments, which is to help improve the media literacy of the general public. Ofcom already has a statutory duty to promote media literacy with regard to the publication of anything by means of electronic media, including services in scope of the Bill. These amendments propose rather prescriptive objectives, either as part of a new duty for Ofcom or through updating its existing duty. They reflect current challenges in the sector but run the risk of becoming obsolete over time, preventing Ofcom from adapting its work in response to emerging issues.
Ofcom has demonstrated flexibility in its existing duty through its renewed Approach to Online Media Literacy, launched in 2021. This presented an expanded media literacy programme, enabling it to achieve almost all the objectives specified in this group. The Government note the progress that Ofcom has already achieved under its renewed approach in the annual plan it produced last month. The Online Safety Bill strengthens Ofcom’s functions relating to media literacy, which is included in Ofcom’s new transparency-reporting and information-gathering powers, which will give it enhanced oversight of industry activity by enabling it to require regulated services to share or publish information about the work that that they are doing on media literacy.
The noble Baroness, Lady Prashar, asked about the view expressed by the Joint Committee on minimum standards for media literacy training. We agree with the intention behind that, but, because of the broad and varied nature of media literacy, we do not believe that introducing minimum standards is the most effective way of achieving that outcome. Instead, we are focusing efforts on improving the evaluation practices of media literacy initiatives to identify which ones are most effective and to encourage their delivery. Ofcom has undertaken extensive work to produce a comprehensive toolkit to support practitioners to deliver robust evaluations of their programmes. This was published in February this year and has been met with praise from practitioners, including those who received grant funding from the Government’s non-legislative media literacy work programme. The post-implementation review of Ofcom’s online safety regime, which covers its existing media literacy duty in so far as it relates to regulated services, will provide a reasonable point at which to establish the effectiveness of Ofcom’s new work programme, after giving it time to take effect.
Noble Lords talked about the national curriculum and media literacy in schools. Media literacy is indeed a crucial skill for everyone in the digital age. Key media literacy skills are already taught through a number of compulsory subjects in the national curriculum. Digital literacy is included in the computing national curriculum in England, which equips pupils with the knowledge, understanding and skills to use information and communication technology creatively and purposefully. I can reassure noble Lords that people such as Monica are being taught not about historic things like floppy disks but about emerging and present challenges; the computing curriculum ensures that pupils are taught how to design program systems and accomplish goals such as collecting, analysing, evaluating and presenting data.
Baroness Kidron (CB)
Does the Minister know how many children are on computing courses?
Lord Parkinson of Whitley Bay (Con)
I do not know, but I shall find out from the Department for Education and write. But those who are on them benefit from a curriculum that includes topics such as programming and algorithms, the responsible and safe use of technology, and other foundational knowledge that may support future study in fields such as artificial intelligence and data science.
This is not the only subject in which media literacy and critical thinking are taught. In citizenship education, pupils are taught about critical thinking and the proper functioning of a democracy. They learn to distinguish fact from opinion, as well as exploring freedom of speech and the role and responsibility of the media in informing and shaping public opinion. As Minister for Arts and Heritage, I will say a bit about subjects such as history, English and other arts subjects, in which pupils learn to ask questions about information, think critically and weigh up arguments, all of which are important skills for media literacy, as well as more broadly.
Lord Parkinson of Whitley Bay (Con)
I am grateful to my noble friends for their amendments in this group, and for the useful debate that we have had. I am grateful also to my noble friend Lady Morgan of Cotes and the members of her committee who have looked at fraud, and for the work of the Joint Committee which scrutinised the Bill, in earlier form, for its recommendations on strengthening the way it tackles fraud online. As the noble Lord, Lord Clement-Jones, said, following those recommendations, the Government have brought in new measures to strengthen the Bill’s provisions to tackle fraudulent activity on in-scope services. I am glad he was somewhat satisfied by that.
All in-scope services will be required to take proactive action to tackle fraud facilitated through user-generated content. In addition, the largest and most popular platforms have a stand-alone duty to prevent fraudulent paid-for advertising appearing on their services. This represents a major step forward in ensuring that internet users are protected from scams, which have serious financial and psychological impacts, as noble Lords noted in our debate. Fully addressing the challenges of paid-for advertising is a wider task than is possible through the Bill alone. Advertising involves a broad range of actors not covered by the current legislative framework, such as advertising intermediaries. I am sympathetic to these concerns and the Government are taking action in this area. Through the online advertising programme, we will deliver a holistic review of the regulatory framework in relation to online advertising. The Government consulted on this work last year and aim to publish a response erelong. As the noble Lord, Lord Stevenson, and others noted, there are a number of Bills which look at this work. Earlier this week, there was a meeting hosted by my noble friends Lord Camrose, Lord Sharpe of Epsom and Lady Penn to try to avoid the cracks opening up between the Bills. I am grateful to my noble friend Lady Morgan for attending; I hope it was a useful discussion.
I turn to the amendments tabled by my noble friend. The existing duties on user reporting and user complaints have been designed for user-generated content and search content and are not easily applicable to paid-for advertising. The duties on reporting and complaints mechanisms require platforms to take action in relation to individual complaints, but many in-scope services do not have control over the paid-for advertising on their services. These amendments are therefore difficult to operate for many in-scope services and would create a substantial burden for small businesses. I assure her and other noble Lords that the larger services, which have strong levers over paid-for advertising, will have to ensure that they have processes in place to enable users to report fraudulent advertising.
In reference to transparency reporting, let me assure my noble friend and others that Ofcom can already require information about how companies comply with their fraudulent advertising duties through transparency reports. In addition, Ofcom will also have the power to gather any information it requires for the purpose of exercising its online safety functions. These powers are extensive and will allow Ofcom to assess compliance with the fraudulent advertising duties.
The noble Viscount, Lord Colville of Culross, asked about the difficulty of identifying fraudulent advertising. Clauses 170 and 171 give guidance and a duty on Ofcom about providers making a judgment about content, including fraudulent advertising. There will also be a code of practice on fraudulent advertising to provide further guidance on mechanisms to deal with this important issue.
My noble friend Lord Lucas’s Amendments 94 and 95 aim to require services to report information relating to fraudulent advertising to UK authorities. I am confident that the Bill’s duties will reduce the prevalence of online fraud, reducing the need for post hoc reporting in this way. If fraud does appear online, there are adequate systems in place for internet users to report this to the police.
People can report a scam to Action Fraud, the national reporting service for fraud and cybercrime. Reports submitted to Action Fraud are considered by the National Fraud Intelligence Bureau and can assist a police investigation. Additionally, the Advertising Standards Authority has a reporting service for reporting online scam adverts, and those reports are automatically shared with the National Cyber Security Centre.
The online advertising programme, which I mentioned earlier, builds on the Bill’s fraudulent advertising duty and looks at the wider online advertising system. That programme is considering measures to increase accountability and transparency across the supply chain, including proposals for all parties to enhance record keeping and information sharing.
My noble friend Lord Lucas was keen to meet to speak further. I will pass that request to my noble friend Lord Sharpe of Epsom, who I think would be the better person to talk to in relation to this on behalf of the Home Office—but I am sure that one of us will be very happy to talk with him.
I look forward to discussing this issue in more detail with my noble friend Lady Morgan and others between now and Report, but I hope that this provides sufficient reassurance on the work that the Government are doing in this Bill and in other ways. I invite my noble friends not to press their amendments.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsTuesday 9th May 2023
(12 months 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 87(Rev)-VI Sixth marshalled list for Committee - (9 May 2023)
Baroness Buscombe (Con)
My Lords, before we continue this debate, I want to understand why we have changed the system so that we break part way through a group of amendments. I am sorry, but I think this is very poor. It is definitely a retrograde step. Why are we doing it? I have never experienced this before. I have sat here and waited for the amendment I have just spoken to. We have now had a break; it has broken the momentum of that group. It was even worse last week, because we broke for several days half way through the debate on an amendment. This is unheard of in my memory of 25 years in this House. Can my noble friend the Minister explain who made this decision, and how this has changed?
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
I have not had as long in your Lordships’ House, but this is not unprecedented, in my experience. These decisions are taken by the usual channels; I will certainly feed that back through my noble friend. One of the difficulties, of course, is that because there are no speaking limits on legislation and we do not know how many people want to speak on each amendment, the length of each group can be variable, so I think this is for the easier arrangement of dinner-break business. Also, for the dietary planning of those of us who speak on every group, it is useful to have some certainty, but I do appreciate my noble friend’s point.
Baroness Buscombe (Con)
Okay; I thank my noble friend for his response. However, I would just say that we never would have broken like that, before 7.30 pm. I will leave it at that, but I will have a word with the usual channels.
Lord Parkinson of Whitley Bay (Con)
My Lords, the range of the amendments in this group indicates the importance of the Government’s approach to user verification and non-verified user duties. The way these duties have been designed seeks to strike a careful balance between empowering adults while safeguarding privacy and anonymity.
Amendments 38, 39, 139 and 140 have been tabled by my noble friend Lord Moylan. Amendments 38 and 39 seek to remove subsections (6) and (7) of the non-verified users’ duties. These place a duty on category 1 platforms to give adult users the option of preventing non-verified users interacting with their content, reducing the likelihood that a user sees content from non-verified users. I want to be clear that these duties do not require the removal of legal content from a service and do not impinge on free speech.
In addition, there are already existing duties in the Bill to safeguard legitimate online debate. For example, category 1 services will be required to assess the impact on free expression of their safety policies, including the impact of their user empowerment tools. Removing subsections (6) and (7) of Clause 12 would undermine the Bill’s protection for adult users of category 1 services, especially the most vulnerable. It would be entirely at the service provider’s discretion to offer users the ability to minimise their exposure to anonymous and abusive users, sometimes known as trolls. In addition, instead of mandating that users verify their identity, the Bill gives adults the choice. On that basis, I am confident that the Bill already achieves the effect of Amendment 139.
Amendment 140 seeks to reduce the amount of personal data transacted as part of the verification process. Under subsection (3) of Clause 57, however, providers will be required to explain in their terms of service how the verification process works, empowering users to make an informed choice about whether they wish to verify their identity. In addition, the Bill does not alter the UK’s existing data protection laws, which provide people with specific rights and protections in relation to the processing of their personal data. Ofcom’s guidance in this area will reflect existing laws, ensuring that users’ data is protected where personal data is processed. I hope my noble friend will therefore be reassured that these duties reaffirm the concept of choice and uphold the importance of protecting personal data.
While I am speaking to the questions raised by my noble friend, I turn to those he asked about Wikipedia. I have nothing further to add to the comments I made previously, not least that it is impossible to pre-empt the assessments that will be made of which services fall into which category. Of course, assessments will be made at the time, based on what the services do at the time of the assessment, so if he will forgive me, I will not be drawn on particular services.
To speak in more general terms, category 1 services are those with the largest reach and the greatest influence over public discourse. The Bill sets out a clear process for determining category 1 providers, based on thresholds set by the Secretary of State in secondary legislation following advice from Ofcom. That is to ensure that the process is objective and evidence based. To deliver this advice, Ofcom will undertake research into the relationship between how quickly, easily and widely user-generated content is disseminated by that service, the number of users and functionalities it has and other relevant characteristics and factors.
Lord Moylan (Con)
Will my noble friend at least confirm what he said previously: namely, that it is the Government’s view—or at least his view—that Wikipedia will not qualify as a category 1 service? Those were the words I heard him use at the Dispatch Box.
Lord Parkinson of Whitley Bay (Con)
That is my view, on the current state of play, but I cannot pre-empt an assessment made at a point in the future, particularly if services change. I stand by what I said previously, but I hope my noble friend will understand if I do not elaborate further on this, at the risk of undermining the reassurance I might have given him previously.
Amendments 40, 41, 141 and 303 have been tabled by the noble Lord, Lord Stevenson of Balmacara, and, as noble Lords have noted, I have added my name to Amendment 40. I am pleased to say that the Government are content to accept it. The noble Baroness, Lady Merron, should not minimise this, because it involves splitting an infinitive, which I am loath to do. If this is a statement of intent, I have let that one go, in the spirit of consensus. Amendment 40 amends Clause 12(7) to ensure that the tools which will allow adult users to filter out content from non-verified users are effective and I am pleased to add my name to it.
Amendment 41 seeks to make it so that users can see whether another user is verified or not. I am afraid we are not minded to accept it. While I appreciate the intent, forcing users to show whether they are verified or not may have unintended consequences for those who are unable to verify themselves for perfectly legitimate reasons. This risks creating a two-tier system online. Users will still be able to set a preference to reduce their interaction with non-verified users without making this change.
Amendment 141 seeks to prescribe a set of principles and standards in Ofcom’s guidance on user verification. It is, however, important that Ofcom has discretion to determine, in consultation with relevant persons, which principles will have the best outcomes for users, while ensuring compliance with the duties. Further areas of the Bill also address several issues raised in this amendment. For example, all companies in scope will have a specific legal duty to have effective user reporting and redress mechanisms.
Existing laws also ensure that Ofcom’s guidance will reflect high standards. For example, it is a general duty of Ofcom under Section 3 of the Communications Act 2003 to further the interests of consumers, including by promoting competition. This amendment would, in parts, duplicate existing duties and undermine Ofcom’s independence to set standards on areas it deems relevant after consultation with expert groups.
Amendment 303 would add a definition of user identity verification. The definition it proposes would result in users having to display their real name online if they decide to verify themselves. In answer to the noble Baroness’s question, the current requirements do not specify that users must display their real name. The amendment would have potential safety implications for vulnerable users, for example victims and survivors of domestic abuse, whistleblowers and others of whom noble Lords have given examples in their contributions. The proposed definition would also create reliance on official forms of identification. That would be contrary to the existing approach in Clause 57 which specifically sets out that verification need not require such forms of documentation.
The noble Baroness, Lady Kidron, talked about paid-for verification schemes. The user identity verification provisions were brought in to ensure that adult users of the largest services can verify their identity if they so wish. These provisions are different from the blue tick schemes and others currently in place, which focus on a user’s status rather than verifying their identity. Clause 57 specifically sets out that providers of category 1 services will be required to offer all adult users the option to verify their identity. Ofcom will provide guidance for user identity verification to assist providers in complying with these duties. In doing so, it will consult groups that represent the interests of vulnerable adult users. In setting out recommendations about user verification, Ofcom must have particular regard to ensuring that providers of category 1 services offer users a form of identity verification that is likely to be available to vulnerable adult users. Ofcom will also be subject to the public sector equality duty, so it will need to take into account the ways in which people with certain characteristics may be affected when it performs this and all its duties under the Bill.
A narrow definition of identity verification could limit the range of measures that service providers might offer their users in the future. Under the current approach, Ofcom will produce and publish guidance on identity verification after consulting those with technical expertise and groups which represent the interests of vulnerable adult users.
Baroness Kidron (CB)
I am sorry to interrupt the noble Lord. Is the answer to my question that the blue tick and the current Meta system will not be considered as verification under the terms of the Bill? Is that the implication of what he said?
Lord Parkinson of Whitley Bay (Con)
Yes. The blue tick is certainly not identity verification. I will write to confirm on Meta, but they are separate and, as the example of blue ticks and Twitter shows, a changing feast. That is why I am talking in general terms about the approach, so as not to rely too much on examples that are changing even in the course of this Committee.
Government Amendment 43A stands in my name. This clarifies that “non-verified user” refers to users whether they are based in the UK or elsewhere. This ensures that, if a UK user decides he or she no longer wishes to interact with non-verified users, this will apply regardless of where they are based.
Finally, Amendment 106 in the name of my noble friend Lady Buscombe would make an addition to the online safety objectives for regulated user-to-user services. It would amend them to make it clear that one of the Bill’s objectives is to protect people from communications offences committed by anonymous users.
The Bill already imposes duties on services to tackle illegal content. Those duties apply across all areas of a service, including the way it is designed and operated. Platforms will be required to take measures—for instance, changing the design of functionalities, algorithms, and other features such as anonymity—to tackle illegal content.
Ofcom is also required to ensure that user-to-user services are designed and operated to protect people from harm, including with regard to functionalities and other features relating to the operation of their service. This will likely include the use of anonymous accounts to commit offences in the scope of the Bill. My noble friend’s amendment is therefore not needed. I hope she will be satisfied not to press it, along with the other noble Lords who have amendments in this group.
Lord Moylan (Con)
My Lords, I would like to say that that was a rewarding and fulfilling debate in which everyone heard very much what they wanted to hear from my noble friend the Minister. I am afraid I cannot say that. I think it has been one of the most frustrating debates I have been involved in since I came into your Lordships’ House. However, it gave us an opportunity to admire the loftiness of manner that the noble Lord, Lord Clement-Jones, brought to dismissing my concerns about Wikipedia—that I was really just overreading the whole thing and that I should not be too bothered with words as they appear in the Bill because the noble Lord thinks that Wikipedia is rather a good thing and why is it not happy with that as a level of assurance?
I would like to think that the Minister had dealt with the matter in the way that I hoped he would, but I do thin, if I may say so, that it is vaguely irresponsible to come to the Dispatch Box and say, “I don’t think Wikipedia will qualify as a category 1 service”, and then refuse to say whether it will or will not and take refuge in the process the Bill sets up, when at least one Member of the House of Lords, and possibly a second in the shape of the noble Lord, Lord Clement-Jones, would like to know the answer to the question. I see a Minister from the business department sitting on the Front Bench with my noble friend. This is a bit like throwing a hand grenade into a business headquarters, walking away and saying, “It was nothing to do with me”. You have to imagine what the position is like for the business.
We had a very important amendment from my noble friend Lady Buscombe. I think we all sympathise with the type of abuse that she is talking about—not only its personal effects but its deliberate business effects, the deliberate attempt to destroy businesses. I say only that my reading of her Amendment 106 is that it seeks to impose on Ofcom an objective to prevent harm, essentially, arising from offences under Clauses 160 and 162 of the Bill committed by unverified or anonymous users. Surely what she would want to say is that, irrespective of verification and anonymity, one would want action taken against this sort of deliberate attempt to undermine and destroy businesses. While I have every sympathy with her amendment, I am not entirely sure that it relates to the question of anonymity and verification.
Apart from that, there were in a sense two debates going on in parallel in our deliberations. One was to do with anonymity. On that question, I think the noble Lord, Lord Clement-Jones, put the matter very well: in the end, you have to come down on one side or the other. My personal view, with some reluctance, is that I have come down on the same side as the Government, the noble Lord and others. I think we should not ban anonymity because there are costs and risks to doing so, however satisfying it would be to be able to expose and sue some of the people who say terrible and untrue things about one another on social media.
The more important debate was not about anonymity as such but about verification. We had the following questions, which I am afraid I do not think were satisfactorily answered. What is verification? What does it mean? Can we define what verification is? Is it too expensive? Implicitly, should it be available for free? Is there an obligation for it to be free or do the paid-for services count, and what happens if they are so expensive that one cannot reasonably afford them? Is it real, in the sense that the verification processes devised by the various platforms genuinely provide verification? Various other questions like that came up but I do not think that any of them was answered.
I hate to say this as it sounds a little harsh about a Government whom I so ardently support, but the truth is that the triple shield, also referred to as a three-legged stool in our debate, was hastily cobbled together to make up for the absence of legal but harmful, but it is wonky; it is not working, it is full of holes and it is not fit for purpose. Whatever the Minister says today, there has to be a rethink before he comes back to discuss these matters at the next stage of the Bill. In the meantime, I beg leave to withdraw my amendment.
(a) is an individual, whether in the United Kingdom or outside it, and(b) has not verified their identity to the provider of a service;”Member’s explanatory statement
This amendment makes it clear that the term “non-verified user” in clause 12 (user empowerment duties) refers to individuals and includes users outside the United Kingdom.
Lord Stevenson of Balmacara (Lab)
Lawyers—don’t you love them? How on earth are we supposed to unscramble that at this time of night? It was good to have my kinsman, the noble and learned Lord, Lord Hope, back in our debates. We were remarking only a few days ago that we had not seen enough lawyers in the House in these debates. One appears, and light appears. It is a marvellous experience.
I thank the Committee for listening to my earlier introductory remarks; I hope they helped to untangle some of the issues. The noble Lord, Lord Black, made it clear that the press are happy with what is in the current draft. There could be some changes, and we have heard a number of examples of ways in which one might either top or tail what there is.
There was one question that perhaps he could have come back on, and maybe he will, as I have raised it separately with the department before. I agree with a lot of what he said, but it applies to a lot more than just news publishers. Quality journalism more generally enhances and restores our faith in public services in so many ways. Why is it only the news? Is there a way in which we could broaden that? If there is not this time round, perhaps that is something we need to pick up later.
As the noble Lord, Lord Clement-Jones, has said, the noble Viscount, Lord Colville, made a very strong and clear case for trying to think again about what journalism does in the public realm and making sure that the Bill at least carries that forward, even if it does not deal with some of the issues that he raised.
We have had a number of other good contributions about how to capture some of the good ideas that were flying around in this debate and keep them in the foreground so that the Bill is enhanced. But I think it is time that the Minister gave us his answers.
Lord Parkinson of Whitley Bay (Con)
I join noble Lords who have sent good wishes for a speedy recovery to the noble Baroness, Lady Featherstone.
Amendments 46, 47 and 64, in the name of my noble friend Lady Stowell of Beeston, seek to require platforms to assess the risk of, and set terms for, content currently set out in Clause 12. Additionally, the amendments seek to place duties on services to assess risks to freedom of expression resulting from user empowerment tools. Category 1 platforms are already required to assess the impact on free expression of their safety policies, including user empowerment tools; to keep that assessment up to date; to publish it; and to demonstrate the positive steps they have taken in response to the impact assessment in a publicly available statement.
Amendments 48 and 100, in the name of the noble Lord, Lord Stevenson, seek to introduce a stand-alone duty on category 1 services to protect freedom of expression, with an accompanying code of practice. Amendments 49, 50, 53A, 61 and 156, in the name of the noble Baroness, Lady Fox, seek to amend the Bill’s Clause 17 and Clause 18 duties and clarify duties on content of democratic importance.
All in-scope services must already consider and implement safeguards for freedom of expression when fulfilling their duties. Category 1 services will need to be clear what content is acceptable on their services and how they will treat it, including when removing or restricting access to it, and that they will enforce the rules consistently. In setting these terms of service, they must adopt clear policies designed to protect journalistic and democratic content. That will ensure that the most important types of content benefit from additional protections while guarding against the arbitrary removal of any content. Users will be able to access effective appeal mechanisms if content is unfairly removed. That marks a considerable improvement on the status quo.
Requiring all user-to-user services to justify why they are removing or restricting each individual piece of content, as Amendment 53A would do, would be disproportionately burdensome on companies, particularly small and medium-sized ones. It would also duplicate some of the provisions I have previously outlined. Separately, as private entities, service providers have their own freedom of expression rights. This means that platforms are free to decide what content should or should not be on their website, within the bounds of the law. The Bill should not mandate providers to carry or to remove certain types of speech or content. Accordingly, we do not think it would be appropriate to require providers to ensure that free speech is not infringed, as suggested in Amendment 48.
Viscount Colville of Culross (CB)
Why would it not be possible for us to try to define what the public interest might be, and not leave it to the platforms to do so?
Lord Parkinson of Whitley Bay (Con)
I ask the noble Viscount to bear with me. I will come on to this a bit later. I do not think it is for category 1 platforms to do so.
We have introduced Clause 15 to reduce the powers that the major technology companies have over what journalism is made available to UK users. Accordingly, Clause 15 requires category 1 providers to set clear terms of service which explain how they take the importance of journalistic content into account when making their moderation decisions. These duties will not stop platforms removing journalistic content. Platforms have the flexibility to set their own journalism policies, but they must enforce them consistently. They will not be able to remove journalistic content arbitrarily. This will ensure that platforms give all users of journalism due process when making content moderation decisions. Amendment 51 would mean that, where platforms subjectively reached a decision that journalism was not conducive to the public good, they would not have to give it due process. Platforms could continue to treat important journalistic content arbitrarily where they decided that this content was not in the public interest of the UK.
In his first remarks on this group the noble Lord, Lord Stevenson, engaged with the question of how companies will identify content of democratic importance, which is content that seeks to contribute to democratic political debate in the UK at a national and local level. It will be broad enough to cover all political debates, including grass-roots campaigns and smaller parties. While platforms will have some discretion about what their policies in this area are, the policies will need to ensure that platforms are balancing the importance of protecting democratic content with their safety duties. For example, platforms will need to consider whether the public interest in seeing some types of content outweighs the potential harm it could cause. This will require companies to set out in their terms of service how they will treat different types of content and the systems and processes they have in place to protect such content.
Amendments 57 and 62, in the name of my noble friend Lord Kamall, seek to impose new duties on companies to protect a broader range of users’ rights, as well as to pay particular attention to the freedom of expression of users with protected characteristics. As previously set out, services will have duties to safeguard the freedom of expression of all users, regardless of their characteristics. Moreover, UK providers have existing duties under the Equality Act 2010 not to discriminate against people with characteristics which are protected in that Act. Given the range of rights included in Amendment 57, it is not clear what this would require from service providers in practice, and their relevance to service providers would likely vary between different rights.
Amendment 60, in the name of the noble Lord, Lord Clement-Jones, and Amendment 88, in the name of the noble Lord, Lord Stevenson, probe whether references to privacy law in Clauses 18 and 28 include Article 8 of the European Convention on Human Rights. That convention applies to member states which are signatories. Article 8(1) requires signatories to ensure the right to respect for private and family life, home and correspondence, subject to limited derogations that must be in accordance with the law and necessary in a democratic society. The obligations flowing from Article 8 do not apply to individuals or to private companies and it would not make sense for these obligations to be applied in this way, given that states which are signatories will need to decide under Article 8(2) which restrictions on the Article 8(1) right they need to impose. It would not be appropriate or possible for private companies to make decisions on such restrictions.
Providers will, however, need to comply with all UK statutory and common-law provisions relating to privacy, and must therefore implement safeguards for user privacy when meeting their safety duties. More broadly, Ofcom is bound by the Human Rights Act 1998 and must therefore uphold Article 8 of the European Convention on Human Rights when implementing the Bill’s regime.
Lord Stevenson of Balmacara (Lab)
It is so complicated that the Minister is almost enticing me to stand up and ask about it. Let us just get that right: the reference to the Article 8 powers exists and applies to those bodies in the UK to which such equivalent legislation applies, so that ties us into Ofcom. Companies cannot be affected by it because it is a public duty, not a private duty, but am I then allowed to walk all the way around the circle? At the end, can Ofcom look back at the companies to establish whether, in Ofcom’s eyes, its requirements in relation to its obligations under Article 8 have or have not taken place? It is a sort of transparent, backward-reflecting view rather than a proactive proposition. That seems a complicated way of saying, “Why don’t you behave in accordance with Article 8?”
Lord Parkinson of Whitley Bay (Con)
Yes, Ofcom, which is bound by it through the Human Rights Act 1998, can ask those questions and make that assessment of the companies, but it would not be right for private companies to be bound by something to which it is not appropriate for companies to be signatories. Ofcom will be looking at these questions but the duty rests on it, as bound by the Human Rights Act.
Lord Stevenson of Balmacara (Lab)
It is late at night and this is slightly tedious, but in the worst of all possible circumstances, Ofcom would be looking at what happened over the last year in relation to its codes of practice and assertions about a particular company. Ofcom is then in trouble because it has not discharged its Article 8 obligations, so who gets to exercise a whip on whom? Sorry, whips are probably the wrong things to use, but you see where I am coming from. All that is left is for the Secretary of State, but probably it would effectively be Parliament, to say to Ofcom, “You’ve failed”. That does not seem a very satisfactory solution.
Lord Parkinson of Whitley Bay (Con)
Platforms will be guided by Ofcom in taking measures to comply with their duties which are recommended in Ofcom’s codes, and which contain safeguards for privacy, including ones based on the European Convention on Human Rights and the rights therein. Paragraph 10(2)(b) of Schedule 4 requires Ofcom to ensure that measures, which it describes in the code of practice, are designed in light of the importance of protecting the privacy of users. Clause 42(2) and (3) provides that platforms will be treated as complying with the privacy duties set out at Clause 18(2) and Clause 28(2), if they take the recommended measures that Ofcom sets out in the codes.
Lord Parkinson of Whitley Bay (Con)
It worked. In seriousness, we will both consult the record and, if the noble Lord wants more, I am very happy to set it out in writing.
Amendment 63 in the name of the noble and learned Lord, Lord Hope of Craighead, seeks to clarify that “freedom of expression” in Clause 18 refers to the
“freedom to impart ideas, opinions or information”,
as referred to in Article 10 of the European Convention on Human Rights. I think I too have been guilty of using the phrases “freedom of speech” and “freedom of expression” as though they were interchangeable. Freedom of expression, within the law, is intended to encompass all the freedom of expression rights arising from UK law, including under common law. The rights to freedom of expression under Article 10 of the European Convention on Human Rights include both the rights to impart ideas, opinions and information, but also the right to receive such ideas, opinions and information. Any revised definition of freedom of expression to be included in the Bill should refer to both aspects of the Article 10 definition, given the importance for both children and adults of receiving information via the internet. We recognise the importance of clarity in relation to the duties set out in Clauses 18 and 28, and we are very grateful to the noble and learned Lord for proposing this amendment, and for the experience he brings to bear on behalf of the Constitution Committee of your Lordships’ House. The Higher Education (Freedom of Speech) Bill and the Online Safety Bill serve very different purposes, but I am happy to say that the Bill team and I will consider this amendment closely between now and Report.
Amendments 101, 102, 109, 112, 116, 121, 191 and 220, in the name of my noble friend Lord Moylan, seek to require Ofcom to have special regard to the importance of protecting freedom of expression when exercising its enforcement duties, and when drafting or amending codes of practice or guidance. Ofcom must already ensure that it protects freedom of expression when overseeing the Bill, because it is bound by the Human Rights Act, as I say. It also has specific duties to ensure that it is clear about how it is protecting freedom of expression when exercising its duties, including when developing codes of practice.
My noble friend’s Amendment 294 seeks to remove “psychological” from the definition of harm in the Bill. It is worth being clear that the definition of harm is used in the Bill as part of the illegal and child safety duties. There is no definition of harm, psychological or otherwise, with regard to adults, given that the definition of content which is harmful to adults was removed from the Bill in another place. With regard to children, I agree with the points made by the noble Baroness, Lady Kidron. It is important that psychological harm is captured in the Bill’s child safety duties, given the significant impact that such content can have on young minds.
I invite my noble friend and others not to press their amendments in this group.
“(5A) In determining what is proportionate for the purposes of subsection (2), the size and capacity of the provider of a service, in particular, is relevant.”Member’s explanatory statement
This amendment indicates that the size and capacity of a provider is important in construing the reference to “proportionate systems and processes” in clause 13 (duties to protect content of democratic importance).
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsTuesday 9th May 2023
(12 months 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 87(Rev)-VI Sixth marshalled list for Committee - (9 May 2023)
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
I am very grateful to the noble Lords who have spoken on the amendments in this group, both this afternoon and last Tuesday evening. As this is a continuation of that debate, I think my noble friend Lord Moylan is technically correct still to wish the noble Baroness, Lady Kidron, a happy birthday, at least in procedural terms.
We have had a very valuable debate over both days on the Bill’s approach to holding platforms accountable to their users. Amendments 33B, 41A, 43ZA, 138A and 194A in the names of the noble Lords, Lord Lipsey and Lord McNally, and Amendment 154 in the name of the noble Lord, Lord Stevenson of Balmacara, seek to bring back the concept of legal but harmful content and related adult risk assessments. They reintroduce obligations for companies to consider the risk of harm associated with legal content accessed by adults. As noble Lords have noted, the provisions in the Bill to this effect were removed in another place, after careful consideration, to protect freedom of expression online. In particular, the Government listened to concerns that the previous legal but harmful provisions could create incentives for companies to remove legal content from their services.
In place of adult risk assessments, we introduced new duties on category 1 services to enable users themselves to understand how these platforms treat different types of content, as set out in Clauses 64 and 65. In particular, this will allow Ofcom to hold them to account when they do not follow through on their promises regarding content they say that they prohibit or to which they say that they restrict access. Major platforms already prohibit much of the content listed in Clause 12, but these terms of service are often opaque and not consistently enforced. The Bill will address and change that.
I would also like to respond to concerns raised through Amendments 41A and 43ZA, which seek to ensure that the user empowerment categories cover the most harmful categories of content to adults. I reassure noble Lords that the user empowerment list reflects input from a wide range of interested parties about the areas of greatest concern to users. Platforms already have strong commercial incentives to tackle harmful content. The major technology companies already prohibit most types of harmful and abusive content. It is clear that most users do not want to see that sort of content and most advertisers do not want their products advertised alongside it. Clause 12 sets out that providers must offer user empowerment tools with a specified list of content to the extent that it is proportionate to do so. This will be based on the size or capacity of the service as well as the likelihood that adult users will encounter the listed content. Providers will therefore need internally to assess the likelihood that users will encounter the content. If Ofcom disagrees with the assessment that a provider has made, it will have the ability to request information from providers for the purpose of assessing compliance.
Amendments 44 and 158, tabled by the right reverend Prelate the Bishop of Oxford, seek to place new duties on providers of category 1 services to produce an assessment of their compliance with the transparency, accountability, freedom of expression and user empowerment duties as set out in Clauses 12, 64 and 65 and to share their assessments with Ofcom. I am sympathetic to the aim of ensuring that Ofcom can effectively assess companies’ compliance with these duties. But these amendments would enable providers to mark their own homework when it comes to their compliance with the duties in question. The Bill has been designed to ensure that Ofcom has responsibility for assessing compliance and that it can obtain sufficient information from all regulated services to make judgments about compliance with their duties. The noble Baroness, Lady Kidron, asked about this—and I think the noble Lord, Lord Clement-Jones, is about to.
Lord Clement-Jones (LD)
I hope the Minister will forgive me for interrupting, but would it not be much easier for Ofcom to assess compliance if a risk assessment had been carried out?
Lord Parkinson of Whitley Bay (Con)
I will come on to say a bit more about how Ofcom goes about that work.
The Bill will ensure that providers have the information they need to understand whether they are in compliance with their duties under the Bill. Ofcom will set out how providers can comply in codes of practice and guidance that it publishes. That information will help providers to comply, although they can take alternative action if they wish to do so.
The right reverend Prelate’s amendments also seek to provide greater transparency to Ofcom. The Bill’s existing duties already account for this. Indeed, the transparency reporting duties set out in Schedule 8 already enable Ofcom to require category 1, 2A and 2B services to publish annual transparency reports with relevant information, including about the effectiveness of the user empowerment tools, as well as detailed information about any content that platforms prohibit or restrict, and the application of their terms of service.
Amendments 159, 160 and 218, tabled by the noble Lord, Lord Stevenson, seek to require user-to-user services to create and abide by minimum terms of service recommended by Ofcom. The Bill already sets detailed and binding requirements on companies to achieve certain outcomes. Ofcom will set out more detail in codes of practice about the steps providers can take to comply with their safety duties. Platforms’ terms of service will need to provide information to users about how they are protecting users from illegal content, and children from harmful content.
These duties, and Ofcom’s codes of practice, ensure that providers take action to protect users from illegal content and content that is harmful to children. As such, an additional duty to have adequate and appropriate terms of service, as envisaged in the amendments, is not necessary and may undermine the illegal and child safety duties.
I have previously set out why we do not agree with requiring platforms to set terms of service for legal content. In addition, it would be inappropriate to delegate this much power to Ofcom, which would in effect be able to decide what legal content adult users can and cannot see.
Amendment 155, tabled by my noble friend Lord Moylan, seeks to clarify whether and how the Bill makes the terms of service of foreign-run platforms enforceable by Ofcom. Platforms’ duties under Clause 65 apply only to the design, operation and use of the service in the United Kingdom and to UK users, as set out in Clause 65(11). Parts or versions of the service which are used in foreign jurisdictions—
Baroness Fox of Buckley (Non-Afl)
On that, in an earlier reply the Minister explained that platforms already remove harmful content because it is harmful and because advertisers and users do not like it, but could he tell me what definition of “harmful” he thinks he is using? Different companies will presumably have a different interpretation of “harmful”. How will that work? It would mean that UK law will require the removal of legal speech based on a definition of harmful speech designed by who—will it be Silicon Valley executives? This is the problem: UK law is being used to implement the removal of content based on decisions that are not part of UK law but with implications for UK citizens who are doing nothing unlawful.
Lord Parkinson of Whitley Bay (Con)
The noble Baroness’s point gets to the heart of the debate that we have had. I talked earlier about the commercial incentive that there is for companies to take action against harmful content that is legal which users do not want to see or advertisers do not want their products to be advertised alongside, but there is also a commercial incentive to ensure that they are upholding free speech and that there are platforms on which people can interact in a less popular manner, where advertisers that want to advertise products legally alongside that are able to do so. As with anything that involves the market, the majority has a louder voice, but there is room for innovation for companies to provide products that cater to minority tastes within the law.
Lord Moylan (Con)
My Lords, my noble friend has explained clearly how terms of service would normally work, which is that, as I said myself, a business might write its own terms of service to its own advantage but it cannot do so too egregiously or it will lose customers, and businesses may aim themselves at different customers. All this is part of normal commercial life, and that is understood. What my noble friend has not really addressed is the question of why uniquely and specifically in this case, especially given the egregious history of censorship by Silicon Valley, he has chosen to put that into statute rather than leave it as a commercial arrangement, and to make it enforceable by Ofcom. For example, when my right honourable friend David Davis was removed from YouTube for his remarks about Covid passes, it would have been Ofcom’s obligation not to vindicate his right to free speech but to cheer on YouTube and say how well it had done for its terms of service.
Lord Parkinson of Whitley Bay (Con)
Our right honourable friend’s content was reuploaded. This makes the point that the problem at the moment is the opacity of these terms and conditions; what platforms say they do and what they do does not always align. The Bill makes sure that users can hold them to account for the terms of service that they publish, so that people can know what to expect on platforms and have some form of redress when their experience does not match their expectations.
I was coming on to say a bit more about that after making some points about foreign jurisdictions and my noble friend’s Amendment 155. As I say, parts or versions of the service that are used in foreign jurisdictions but not in the UK are not covered by the duties in Clause 65. As such, the Bill does not require a provider to have systems and processes designed to enforce any terms of service not applicable in the UK.
In addition, the duties do not give powers to Ofcom to enforce a provider’s terms of service directly. Ofcom’s role will be focused on ensuring that platforms have systems and processes in place to enforce their own terms of service consistently rather than assessing individual pieces of content.
Requiring providers to set terms of service for specific types of content suggests that the Government view that type of content as harmful or risky. That would encourage providers to prohibit such content, which of course would have a negative impact on freedom of expression, which I am sure is not what my noble friend wants to see. Freedom of expression is essential to a democratic society. Throughout the passage of the Bill, the Government have always committed to ensuring that people can speak freely online. We are not in the business of indirectly telling companies what legal content they can and cannot allow online. Instead, the approach that we have taken will ensure that platforms are transparent and accountable to their users about what they will and will not allow on their services.
Clause 65 recognises that companies, as private entities, have the right to remove content that is legal from their services if they choose to do so. To prevent them doing so, by requiring them to balance this against other priorities, would have perverse consequences for their freedom of action and expression. It is right that people should know what to expect on platforms and that they are able to hold platforms to account when that does not happen. On that basis, I invite the noble Lords who have amendments in this group not to press them.
Lord McNally (LD)
My Lords, in his opening remarks, the Minister referred to the fact that this debate began last Tuesday. Well, it did, in that I made a 10-minute opening speech and the noble Baroness, Lady Stowell, rather elegantly hopped out of this group of amendments; perhaps she saw what was coming.
How that made me feel is perhaps best summed up by what the noble Earl, Lord Howe, said earlier when he was justifying the business for tomorrow. He said that adjournments were never satisfactory. In that spirit, I wrote to the Leader of the House, expressing the grumbles I made in my opening remarks. He has written back in a very constructive and thoughtful way. I will not delay the Committee any longer, other than to say that I hope the Leader of the House would agree to make his reply available for other Members to read. It says some interesting things about how we manage business. It sounds like a small matter but if what happened on Tuesday had happened in other circumstances in the other place, business would probably have been delayed for at least an hour while the usual suspects picked holes in it. If the usual channels would look at this, we could avoid some car crashes in future.
I am pleased that this group of amendments has elicited such an interesting debate, with fire coming from all sides. In introducing the debate, I said that probably the only real advice I could give the Committee came from my experience of being on the pre-legislative scrutiny committee in 2003. That showed just how little we were prepared for the tsunami of new technology that was about to engulf us. My one pleasure was that we were part of forming Ofcom. I am pleased that the chairman of Ofcom, the noble Lord, Lord Grade, has assiduously sat through our debates. I suspect he is thinking that he had better hire some more lawyers.
We are trying to get this right. I have no doubt that all sides of the House want to get this legislation through in good shape and for it to play an important role. I am sure that the noble Lord, Lord Grade, never imagined that he would become a state regulator in the kind of ominous way in which the noble Baroness, Lady Fox, said it. Ofcom has done a good job and will do so in future.
There is a problem of getting definitions right. When I was at the Ministry of Justice, I once had to entertain a very distinguished American lawyer. As I usually did, I explained that I was not a lawyer. He looked at me and said, “Then I will speak very slowly”. There is a danger, particularly in this part of the Bill, of wandering into a kind of lawyer-fest. It is important that we are precise about what powers we are giving to whom. Just to chill the Minister’s soul, I remember being warned as well about Pepper v Hart. What he says at the Dispatch Box will be used to interpret what Parliament meant when it gave this or that power.
The debate we have had thus far has been fully justified in sending a few warning signals to the Minister that it is perhaps not quite right yet. It needs further work. There is a lot of good will on all sides of the House to get it right. For the moment, I beg leave to withdraw my amendment.
Lord Knight of Weymouth (Lab)
As ever, the noble Baroness is an important voice in bursting our bubble in the Chamber. I continue to respect her for that. It will not be perfect; there is no perfect answer to all this. I am siding with safety and caution rather than a bit of a free-for-all. Sometimes there might be overcaution and aspects of debate where the platforms, the regulator, the media, and discussion and debate in this Chamber would say, “The toggles have got it wrong”, but we just have to make a judgment about which side we are on. That is what I am looking forward to hearing from the Minister.
These amendments are supported on all sides and by a long list of organisations, as listed by the noble Baroness, Lady Morgan, and the noble Lord, Lord Clement-Jones. The Minister has not conceded very much at all so far to this Committee. We have heard compelling speeches, such as those from the noble Baroness, Lady Parminter, that have reinforced my sense that he needs to give in on this when we come to Report.
I will also speak to my Amendment 38A. I pay tribute to John Penrose MP, who was mentioned by the noble Baroness, Lady Harding, and his work in raising concerns about misinformation and in stimulating discussion outside the Chambers among parliamentarians and others. Following discussions with him and others in the other place, I propose that users of social media should have the option to filter out content the provenance of which cannot be authenticated.
As we know, social media platforms are often awash with content that is unverified, misleading or downright false. This can be particularly problematic when it comes to sensitive or controversial topics such as elections, health or public safety. In these instances, it can be difficult for users to know whether the information presented to them is accurate. Many noble Lords will be familiar with the deep-fake photograph of the Pope in a white puffa jacket that recently went viral, or the use of imagery for propaganda purposes following the Russian invasion of Ukraine.
The Content Authenticity Initiative has created an open industry standard for content authenticity and provenance. Right now, tools such as Adobe Photoshop allow users to turn on content credentials to securely attach provenance data to images and any edits then made to those images. That technology has now been adopted by camera manufacturers such as Leica and Nikon, so the technology is there to do some of this to help give us some reassurance.
Amendment 38A would allow users to filter out unverified content and is designed to flag posts or articles that do not come from a reliable source or have not been independently verified by a reputable third party. Users could then choose to ignore or filter out such content, ensuring that they are exposed only to information that has been vetted and verified. This would not only help users to make more informed decisions but help to combat the spread of false information on social media platforms. By giving users the power to filter out unverified content, we can help to ensure that social media platforms are not used to spread harmful disinformation or misinformation.
Amendments 42 and 45, in the name of my noble friend Lord Stevenson, are good and straightforward improvements to the Bill, suggesting that Clause 12(11) should include all the protected characteristics in the Equality Act 2010. I listened closely to the argument of the noble Baroness, Lady Buscombe, about listing the various characteristics, but I think it makes much more sense to do what my noble friend is suggesting and just reference the Equality Act. If we chose separately to amend the Equality Act to change protected characteristics, that change would then flow through into this Bill. That seems to be a much more sensible and pragmatic way to proceed. Similarly, in Amendment 45 my noble friend is suggesting that consideration should be given by the Secretary of State as to whether any of these tools should also be available to child users, and we have heard good arguments in favour of that when it comes to dealing with the cliff-edge effect, as described by the noble Baroness, Lady Kidron.
Lastly—and, perhaps the Committee will forgive me, slightly bizarrely—Amendment 283ZA, in the name of the noble Baroness, Lady Fox, to Clause 170(7) in Part 11 invites us to consider, among other things, whether a bot can act reasonably. Given that self-coding bots are now technically possible, I would be fascinated to hear the Minister’s view on whether an autonomous bot can have reason. I asked ChatGPT this question. For the help of the Committee, it replied:
“As an artificial intelligence language model, I do not have consciousness or emotions, and therefore, I do not have a capacity for ‘reason’ in the way that humans understand it. However, I am programmed to use advanced algorithms that allow me to process and analyze large amounts of data, recognize patterns, and provide reasoned responses based on the information available to me. This allows me to simulate a form of reasoning, but it is important to note that it is not the same as human reasoning, as I do not have subjective experiences or personal biases. Ultimately, my abilities are limited to the algorithms and data that have been programmed into my system, and I cannot generate my own subjective experiences or judgments.”
That is the view of the algorithm as to whether or not bots can have reason. I look forward to the Minister’s response.
Lord Parkinson of Whitley Bay (Con)
My Lords, the Government recognise the objectives of the amendments in this group: to strengthen protections for adults online. I hope noble Lords will agree that the Bill will indeed significantly improve the safety of all adult users, particularly those who are more vulnerable.
The user empowerment content features will not be the only measures in the Bill that will protect adults. They will act as a final layer of protection, coming after the duties on illegal content and the requirement on category 1 providers to uphold their terms of service. However, as the Clause 12 duties apply to legal content, we need to tread carefully and not inadvertently restrict free expression.
Amendments 34 and 35 in the name of my noble friend Lady Morgan of Cotes and Amendments 36 and 37 in the name of the noble Lord, Lord Clement-Jones, seek to require category 1 services to have their user empowerment content features in operation by default for adult users. The Government share concerns about users who experience disproportionate levels of abuse online or those who are more susceptible to suicide, self-harm or eating disorder content, but these amendments encroach on users’ rights in two ways.
First, the amendments intend to make the decision on behalf of users about whether to have these features turned on. That is aimed especially at those who might not otherwise choose to use those features. The Government do not consider it appropriate to take that choice away from adults, who must be allowed to decide for themselves what legal content they see online. That debate was distilled in the exchange just now between the noble Lord, Lord Knight, and the noble Baroness, Lady Fox, when the noble Lord said he would err on the side of caution, even overcaution, while he characterised the other side as a free-for-all. I might say that it was erring on the side of freedom. That is the debate that we are having, and should have, when looking at these parts of the Bill.
Secondly, the amendments would amount to a government requirement to limit adults’ access to legal content. That presents real concerns about freedom of expression, which the Government cannot accept.
Baroness Kidron (CB)
Does the Minister therefore think that the Government condone the current system, where we are inundated algorithmically with material that we do not want? Are the Government condoning that behaviour, in the way that he is saying they would condone a safety measure?
Lord Parkinson of Whitley Bay (Con)
We will come to talk about algorithms and their risks later on. There is an important balance to strike here that we have debated, rightly, in this group. I remind noble Lords that there are a range of measures that providers can put in place—
Lord Stevenson of Balmacara (Lab)
Because of the importance of that point in relation to what the Minister is about to say, we should be clear about this point: is he ruling out the ability to prioritise the needs and requirements of those who are effectively unable to take the decisions themselves in favour of a broader consideration of freedom of expression? It would be helpful for the future of this debate to be clear on that point.
Lord Parkinson of Whitley Bay (Con)
We will come in a moment to the provisions that are in the Bill to make sure that decisions can be taken by adults, including vulnerable adults, easily and clearly. If the noble Lord will allow, I will cover that point.
I was in the middle of reminding noble Lords that there are a range of measures that providers can put in place under these duties, some of which might have an impact on a user’s experience if they were required to be switched on by default. That may include, for example, restricting a user’s news feed to content from connected users, adding to the echo chamber and silos of social media, which I know many noble Lords would join me in decrying. We think it is right that that decision is for individual users to make.
The Bill sets out that the user empowerment content tools must be offered to all adult users and must be easy to access—to go the point raised just now as well as by my noble friend Lady Harding, and the noble Baroness, Lady Burt, and, as noble Lords were right to remind us, pushed by the noble Baroness, Lady Campbell of Surbiton, who I am pleased to say I have been able to have discussions with separately from this Committee.
Providers will also be required to have clear and accessible terms of service about what tools are offered on their service and how users might take advantage of them. Ofcom will be able to require category 1 services to report on user empowerment tools in use through transparency reports. Ofcom is also bound by the Communications Act 2003 and the public sector equality duty, so it will need to take into account the ways that people with certain characteristics, including people with disabilities, may be affected when performing its duties, such as writing the codes of practice for the user empowerment duties.
Lord Knight of Weymouth (Lab)
I think the Minister is trying to answer the point raised by my noble friend about vulnerable adults. I am interested in the extent to which he is relying on the Equality Act duty on Ofcom then to impact the behaviour of the platforms that it is regulating in respect of how they are protecting vulnerable adults. My understanding is that the Equality Act duty will apply not to the platforms but only to Ofcom in the way that it regulates them. I am unclear how that is going to provide the protection that we want.
Lord Parkinson of Whitley Bay (Con)
That is right. Platforms are not in the public sector, so the public sector equality duty does not apply to them. However, that duty applies to Ofcom, taking into account the ways in which people with certain characteristics can be affected through the codes of practice and the user empowerment duties that it is enforcing. So it suffuses the thinking there, but the duty is on Ofcom as a public sector body.
We talk later in Clause 12(11) of some of the characteristics that are similar in approach to the protected characteristics in the Equality Act 2010. I will come to that again shortly in response to points made by noble Lords.
I want to say a bit about the idea of there being a cliff edge at the age of 18. This was raised by a number of noble Lords, including the noble Lord, Lord Griffiths, my noble friends Lady Morgan and Lady Harding and the noble Baroness, Lady Kidron. The Bill’s protections recognise that, in law, people become adults when they turn 18—but it is not right to say that there are no protections for young adults. As noble Lords know, the Bill will provide a triple shield of protection, of which the user empowerment duties are the final element.
The Bill already protects young adults from illegal content and content that is prohibited in terms and conditions. As we discussed in the last group, platforms have strong commercial incentives to prohibit content that the majority of their users do not want to see. Our terms of service duties will make sure that they are transparent about and accountable for how they treat this type of content.
Lord Clement-Jones (LD)
My Lords, what distinguishes young adults from older adults in what the Minister in saying?
Lord Parkinson of Whitley Bay (Con)
In law, there is nothing. I am engaging with the point that there is no cliff edge. There are protections for people once they turn 18. People’s tastes and risk appetites may change over time, but there are protections in the Bill for people of all ages.
Lord Clement-Jones (LD)
Surely, this is precisely the point that the noble Baroness, Lady Kidron, was making. As soon as you reach 18, there is no graduation at all. There is no accounting for vulnerable adults.
Lord Parkinson of Whitley Bay (Con)
There is not this cliff edge which noble Lords have feared—that there are protections for children and then, at 18, a free for all. There are protections for adult users—young adults, older adults, adults of any age—through the means which I have just set out: namely, the triple shield and the illegal content provisions. I may have confused the noble Lord in my attempt to address the point. The protections are there.
Lord Clement-Jones (LD)
There is an element of circularity to what the Minister is saying. This is precisely why we are arguing for the default option. It allows this vulnerability to be taken account of.
Lord Knight of Weymouth (Lab)
Perhaps it would help if the Minister wanted to just set out the difference for us. Clearly, this Committee has spent some time debating the protection for children, which has a higher bar than protection for adults. It is not possible to argue that there will be no difference at the age of 18, however effective the first two elements of the triple shield are. Maybe the Minister needs to think about coming at it from the point of view of a child becoming an adult, and talk us through what the difference will be.
Lord Parkinson of Whitley Bay (Con)
Once somebody becomes an adult in law at the age of 18, they are protected through the triple shield in the Bill. The user empowerment duties are one element of this, along with the illegal content duties and the protection against content prohibited in terms and conditions and the redress through Ofcom.
The legislation delivers protection for adults in a way that preserves their choice. That is important. At the age of 18, you can choose to go into a bookshop and to encounter this content online if you want. It is not right for the Government to make decisions on behalf of adults about the legal content that they see. The Bill does not set a definition of a vulnerable adult because this would risk treating particular adults differently, or unfairly restricting their access to legal content or their ability to express themselves. There is no established basis on which to do that in relation to vulnerability.
Finally, we remain committed to introducing a new criminal offence to capture communications that intentionally encourage or assist serious self-harm, including eating disorders. This will provide another layer of protection on top of the regulatory framework for both adults and children.
Lord Knight of Weymouth (Lab)
I understand all of that—I think—but that is not the regime being applied to children. It is really clear that children have a safer, better experience. The difference between those experiences suddenly happening on an 18th birthday is what we are concerned about.
Lord Clement-Jones (LD)
Before the Minister stands up—a new phrase—can he confirm that it is perfectly valid to have a choice to lift the user empowerment tool, just as it is to impose it? Choice would still be there if our amendments were accepted.
Lord Parkinson of Whitley Bay (Con)
It would be, but we fear the chilling effect of having the choice imposed on people. As the noble Baroness, Lady Fox, rightly put it, one does not know what one has not encountered until one has engaged with the idea. At the age of 18, people are given the choice to decide what they encounter online. They are given the tools to ensure that they do not encounter it if they do not wish to do so. As the noble Lord has heard me say many times, the strongest protections in the Bill are for children. We have been very clear that the Bill has extra protections for people under the age of 18, and it preserves choice and freedom of expression online for adult users—young and old adults.
My noble friend Lady Buscombe asked about the list in Clause 12(11). We will keep it under constant review and may consider updating it should compelling evidence emerge. As the list covers content that is legal and designed for adults, it is right that it should be updated by primary legislation after a period of parliamentary scrutiny.
Amendments 42 and 38A, tabled by the noble Lords, Lord Stevenson of Balmacara and Lord Knight of Weymouth, respectively, seek to change the scope of user empowerment content features. Amendment 38A seeks to expand the user empowerment content features to include the restriction of content the provenance of which cannot be authenticated. Amendment 42 would apply features to content that is abusive on the basis of characteristics protected under the Equality Act 2010.
The user empowerment content list reflects areas where there is the greatest need for users to be offered choice about reducing their exposure to types of content. While I am sympathetic to the intention behind the amendments, I fear they risk unintended consequences for users’ rights online. The Government’s approach recognises the importance of having clear, enforceable and technically feasible duties that do not infringe users’ rights to free expression. These amendments risk undermining this. For instance, Amendment 38A would require the authentication of the provenance of every piece of content present on a service. This could have severe implications for freedom of expression, given its all-encompassing scope. Companies may choose not to have anything at all.
Lord Knight of Weymouth (Lab)
I will try to help the Minister. If the amendment has been poorly drafted, I apologise. It does not seek to require a platform to check the provenance of every piece of content, but content that is certified as having good provenance would have priority for me to be able to see it. In the Bill, I can see or not see verified users. In the same way, I could choose to see or not see verified content.
Lord Parkinson of Whitley Bay (Con)
Thank you. I may be reading the noble Lord’s Amendment 38A excessively critically. I will look at it again. To try to reassure the noble Lord, the Bill already ensures that all services take steps to remove illegal manufactured or manipulated content when they become aware of it. Harmful and illegal misinformation and disinformation is covered in that way.
Amendment 42 would require providers to try to establish on a large scale what is a genuinely held belief that is more than an opinion. In response, I fear that providers would excessively apply the user empowerment features to manage that burden.
A number of noble Lords referred to the discrepancy between the list—
Lord Stevenson of Balmacara (Lab)
Several times in the Bill—but this is a clear example—the drafters have chosen to impose a different sequence of words from that which exists in statute. The obvious one here is the Equality Act, which we have touched on before. The noble Baroness, Lady Buscombe, made a number of serious points about that. Why have the Government chosen to list, separately and distinctively, the characteristics which we have also heard, through a different route, the regulator will be required to uphold in respect of the statute, while the companies will be looking to the text of the Bill, when enacted? Is that not just going to cause chaos?
Lord Parkinson of Whitley Bay (Con)
The discrepancy comes from the point we touched on earlier. Ofcom, as a public body, is subject to the public sector equality duty and therefore the list set out in the Equality Act 2010. The list at Clause 12(11) relates to content which is abusive, and is therefore for providers to look at. While the Equality Act has established an understanding of characteristics which should be given special protection in law, it is not necessarily desirable to transpose those across. They too are susceptible to the point made by my noble friend Lady Buscombe about lists set out in statute. If I remember rightly, the Equality Act was part of a wash-up at the end of that Parliament, and whether Parliament debated that Bill as thoroughly as it is debating this one is a moot point.
Lord Stevenson of Balmacara (Lab)
The noble Lord made that point before, and I was going to pick him up on it. It really is not right to classify our legislation by whether it came through in a short or long period. We are spending an awfully long time on this but that is not going to make it any better. I was involved in the Equality Act, and I have the scars on my back to prove it. It is jolly good legislation and has stood the test of time. I do not think the point is answered properly by simply saying that this is a better way of doing it. The Minister said that Clause 12(11) was about abuse targets, but Clause 12(12) is about “hatred against people” and Clause 12(13) is a series of explanatory points. These provisions are all grist to the lawyers. They are not trying to clarify the way we operate this legislation, in my view, to the best benefit of those affected by it.
Lord Parkinson of Whitley Bay (Con)
The content which we have added to Clause 12 is a targeted approach. It reflects input from a wide range of interested parties, with whom we have discussed this, on the areas of content that users are most concerned about. The other protected characteristics that do not appear are, for instance, somebody’s marriage or civil partnership status or whether they are pregnant. We have focused on the areas where there is the greatest need for users to be offered the choice about reducing their exposure to types of content because of the abuse they may get from it. This recognises the importance of clear, enforceable and technically feasible duties. As I said a moment ago in relation to the point made by my noble friend Lady Buscombe, we will keep it under review but it is right that these provisions be debated at length—greater length than I think the Equality Bill was, but that was long before my time in your Lordships’ House, so I defer to the noble Lord’s experience and I am grateful that we are debating them thoroughly today.
I will move now, if I may, to discuss Amendments 43 and 283ZA, tabled by the noble Baroness, Lady Fox of Buckley. Amendment 43 aims to ensure that the user empowerment content features do not capture legitimate debate and discussion, specifically relating to the characteristics set out in subsections (11) and (12). Similarly, her Amendment 283ZA aims to ensure that category 1 services apply the features to content only when they have reasonable grounds to infer that it is user empowerment content.
With regard to both amendments, I can reassure the noble Baroness that upholding users’ rights to free expression is an integral principle of the Bill and it has been accounted for in drafting these duties. We have taken steps to ensure that legitimate online discussion or criticism will not be affected, and that companies make an appropriate judgment on the nature of the content in question. We have done this by setting high thresholds for inclusion in the content categories and through further clarification in the Bill’s Explanatory Notes, which I know she has consulted as well. However, the definition here deliberately sets a high threshold. By targeting only abuse and incitement to hatred, it will avoid capturing content which is merely challenging or robust discussion on controversial topics. Further clarity on definitions will be provided by Ofcom through regulatory guidance, on which it will be required to consult. That will sit alongside Ofcom’s code of practice, which will set out the steps companies can take to fulfil their duties.
Baroness Fox of Buckley (Non-Afl)
I appreciate the Minister’s comments but, as I have tried to indicate, incitement to hatred and abuse, despite people thinking they know what those words mean, is causing huge difficulty legally and in institutions throughout the land. Ofcom will have its work cut out, but it was entirely for that reason that I tabled this amendment. There needs to be an even higher threshold, and this needs to be carefully thought through.
Lord Parkinson of Whitley Bay (Con)
But as I think the noble Baroness understands from that reference, this is a definition already in statute, and with which Parliament and the courts are already engaged.
The Bill’s overarching freedom of expression duties also apply to Clause 12. Subsections (4) to (7) of Clause 18 stipulate that category 1 service providers are required to assess the impact on free expression from their safety policies, including the user empowerment features. This is in addition to the duties in Clause 18(2), which requires all user-to-user services to have particular regard to the importance of protecting freedom of expression when complying with their duties. The noble Baroness’s Amendment 283ZA would require category 1 providers to make judgments on user empowerment content to a similar standard required for illegal content. That would be disproportionate. Clause 170 already specifies how providers must make judgments about whether content is of a particular kind, and therefore in scope of the user empowerment duties. This includes making their judgment based on “all relevant information”. As such, the Bill already ensures that the user empowerment content features will be applied in a proportionate way that will not undermine free speech or hinder legitimate debate online.
Amendment 45, tabled by the noble Lord, Lord Stevenson of Balmacara, would require the Secretary of State to lay a Statement before Parliament outlining whether any of the user empowerment duties should be applied to children. I recognise the significant interest that noble Lords have in applying the Clause 12 duties to children. The Bill already places comprehensive requirements on Part 3 services which children are likely to access. This includes undertaking regular risk assessments of such services, protecting children from harmful content and activity, and putting in place age-appropriate protections. If there is a risk that children will encounter harm, such as self-harm content or through unknown or unverified users contacting them, service providers will need to put in place age- appropriate safety measures. Applying the user empowerment duties for child users runs counter to the Bill’s child safety objectives and may weaken the protections for children—for instance, by giving children an option to see content which is harmful to them or to engage with unknown, unverified users. While we recognise the concerns in this area, for the reasons I have set out, the Government do not agree with the need for this amendment.
I will resist the challenge of the noble Lord, Lord Knight, to talk about bots because I look forward to returning to that in discussing the amendments on future-proofing. With that, I invite noble Lords—
Baroness Kidron (CB)
I noted the points made about the way information is pushed and, in particular, the speech of the right reverend Prelate. Nothing in the Government’s response has really dealt with that concern. Can the Minister say a few words about not the content but the way in which users are enveloped? On the idea that companies always act because they have a commercial imperative not to expose users to harmful material, actually, they have a commercial imperative to spread material and engage users. It is well recorded that a lot of that is in fact harmful material. Can the Minister speak a little more about the features rather than the content?
Lord Parkinson of Whitley Bay (Con)
We will discuss this when it comes to the definition of content in the Bill, which covers features. I was struck by the speech by the right reverend Prelate about the difference between what people encounter online, and the analogy used by the noble Baroness, Lady Fox, about a bookshop. Social media is of a different scale and has different features which make that analogy not a clean or easy one. We will debate in other groups the accumulated threat of features such as algorithms, if the noble Baroness, Lady Kidron, will allow me to go into greater detail then, but I certainly take the points made by both the right reverend Prelate and the noble Baroness, Lady Fox, in their contributions.
Baroness Morgan of Cotes (Con)
My Lords, I thank my noble friend very much indeed, and thank all noble Lords who have taken part. As the noble Lord, Lord Knight, said, this has been an important debate—they are all important, of course—but I think this has really got to the heart of parts of the Bill, parts of why it has been proposed in the first place, and some choices the Government made in their drafting and the changes they have made to the Bill. The right reverend Prelate reminded us, as Bishops always do, of the bigger picture, and he was quite right to do so. There is no equality of arms, as he put it, between most of us as internet users and these enormous companies that are changing, and have changed, our society. My noble friend was right—and I was going to pick up on it too—that the bookshop example given by the noble Baroness, Lady Fox, is, I am afraid, totally misguided. I love bookshops; the point is that I can choose to walk into one or not. If I do not walk into a bookshop, I do not see the books promoting some of the content we have discussed today. If they spill out on to the street where I trip over them, I cannot ignore them. This would be even harder if I were a vulnerable person, as we are going to discuss.
Noble Lords said that this is not a debate about content or freedom of expression, but that it is about features; I think that is right. However, it is a debate about choice, as the noble Lord, Lord Clement-Jones, said. I am grateful to each of those noble Lords who supported my amendments; we have had a good debate on both sets of amendments, which are similar. But as the noble Lord, Lord Griffiths, said, some of the content we are discussing, particularly in subsection (10), relating to suicide, pro-self-harm and pro-anorexia content, has literal life or death repercussions. To those noble Lords, and those outside this House, who seem to think we should not worry and should allow a total free-for-all, I say that we are doing so, in that the Government, in choosing not to adopt such amendments, are making an active choice. I am afraid the Government are condoning the serving up of insidious, deliberately harmful and deliberately dangerous content to our society, to younger people and vulnerable adults. The Minister and the Government would be better off if they said, “That is the choice that we have made”. I find it a really troubling choice because, as many noble Lords will know, I was involved in this Bill a number of years ago—there has been a certain turnover of Culture Secretaries in the last couple of years, and I was one of them. I find the Government’s choice troubling, but it has been made. As the noble Lord, Lord Knight, said, we are treating children differently from how we are treating adults. As drafted, there is a cliff edge at the age of 18. As a society, we should say that there are vulnerabilities among adults, as we do in many walks of life; and exactly as the noble Baroness, Lady Parminter, so powerfully said, there are times when we as a House, as a Parliament, as a society and as a state, should say we want to protect people. There is an offer here in both sets of amendments—I am not precious about which ones we choose—to have that protection.
I will of course withdraw the amendment today, because that is the convention of the House, but I ask my noble friend to reflect on the strength of feeling expressed by the House on this today; I think the Whip on the Bench will report as well. I am certain we will return to this on Report, probably with a unified set of amendments. In the algorithmic debate we will return to, the Government will have to explain, in words of one syllable, to those outside this House who worry about the vulnerable they work with or look after, about the choice that the Government have made in not offering protections when they could have done, in relation to these enormously powerful platforms and the insidious content they serve up repeatedly.
Gambling Act Review White Paper
Lord Parkinson of Whitley Bay Excerpts(1 year 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, I am grateful for the broad welcome in both noble Lords’ remarks for this work. I am conscious that I have stood at this Dispatch Box many times and promised that it will be coming soon, so it is a relief for me to be able to change the script and talk now on some of the detail—and I know it will be a delight to your Lordships’ House as well.
The noble Lord, Lord Bassam, began by talking about the importance of the industry to seaside towns and communities. As I am from a seaside town, I share his sentiments on that. We are conscious, in taking the action that we have, that we are talking about an industry that provides many jobs and contributes to the UK economy, and in which millions of people participate with no harm.
We are conscious too of the huge changes we have seen in gambling since the 2005 Act, not least with the advent of the smartphone and the availability of gambling opportunities for people in their pocket, as well as the changed nature of the advertising and exhortations to play. That is why the consultation we held deserved careful thought, and why many people fed into it. We are very grateful to all who did. It is why it is right that gambling Ministers and Secretaries of State—there has been more than one during the process—have had time to interrogate that information and bring it forward. I am grateful to your Lordships’ Select Committee and to Peers for Gambling Reform, who I met earlier with the noble Lord, Lord Foster, and to others who have fed into that process and who continue to do so.
The noble Lord asked why further consultation is needed. The White Paper sets a clear strategic direction, based on the call for evidence and the consultation we held, but the Government have a duty to follow due process and to consult on detailed proposals, including their impact. There is a difference between the consultation that led to the White Paper, on what to do and whether to do it, and the consultation now on how to do it. That will make sure that we get the details right in complex areas such as the levy, and minimise the risk of legal challenge, which would only cause further delay and frustration to people such as the noble Lord.
We will work with the Gambling Commission, the industry and others to implement these proposals as swiftly as possible. We will ensure that the consultations have timeframes that are no longer than needed for fair consultation. The consultations will be published by the summer, and we intend all the main measures to be in force by next summer. We expect to make announcements on some measures within weeks.
I turn to the questions about the Gambling Commission. As I said when last speaking on this topic at the Dispatch Box, the Gambling Commission has shown that it can regulate the industry effectively and stand up to the biggest operators when required—it is taking more direct action. Of course, we work with the commission regularly: Ministers meet its chairman and chief executive on a regular basis. The review took a close look at the commission’s powers and resources, and the White Paper sets out a range of actions that will be taken.
On resources, the Secretary of State’s Oral Statement in another place addressed the point raised by the noble Lord, Lord Bassam. She said that
“my Department will ensure that the Gambling Commission has the appropriate resources to support this work and deliver the commitments in the White Paper”,—[Official Report, Commons, 27/4/23; col. 942.]
but we will continue to discuss that with the Gambling Commission.
On stake limits, anyone can walk into a betting shop and play anonymously, but all online gambling is account based. Operators have a detailed understanding of the person playing and whether they are at risk of suffering harm. We will consult on a limit between £2 and £15 and on options including a lower limit for people under 25, who the evidence suggests can be at a higher risk of harm. We look forward to the information that will be fed in there.
On affordability checks, we considered a range of data and the Gambling Commission’s advice in deciding the proposed thresholds for consultation. This included the current levels of harm, estimates of disposable income and current spending patterns. Light-touch checks start at £125 net loss per month, to help protect people for whom even relatively modest losses could be harmful. They escalate to more detailed checks at a higher level. But these proposals are subject to consultation by the Gambling Commission. I know that will frustrate noble Lords who want to see swift action, but we want to make sure that we get this right and take into account the challenges here. We are mindful of the impacts that this has on people and their families.
As noble Lords have heard me say, while doing that work we have not delayed taking the action we can take in the meantime: we have cut the stakes on fixed- odds betting terminals, banned gambling on credit cards, brought in reforms to online VIP schemes, introduced new limits to make online slots safer, and upgraded rules on identifying and intervening to protect people who show signs of harm online. We want to tackle some of the challenges that are unique to online gambling. I look forward to continuing to work with noble Lords, with more to get our teeth stuck into now. I am grateful to them for their work so far.
Lord Grade of Yarmouth (Non-Afl)
My Lords, I welcome unequivocally the direction of travel of this White Paper. How could I do otherwise, when all the Government’s recommendations were among those of your Lordships’ Select Committee on gambling harms, which I had the privilege of serving as chairman?
I heard what the Minister said about consultation. This reminds me of the great saying in the film industry, “Hurry up and wait”, when you get to the location and everybody is standing around, ready, but nothing happens. We are ready to go with this. None of the recommendations I saw in the White Paper requires primary legislation; they can be got on with. I heard what the Minister said about the need for consultation, but there were 60,000 responses to the consultation that led to the White Paper. How long will it take to have more consultations? That is a concern.
My overriding concern is that the track record of the Gambling Commission hitherto has been very dilatory. A lot of the toxicity in the gambling sector was due to the Gambling Commission being asleep on the job in those days. It has certainly improved its performance, but I seek assurances from the Minister that its feet will be held to the fire in a way that they have not been hitherto, given the need to reduce harm as soon as possible. I am sure that the message from the House at the end of this session will be: please get on with it now.
Lord Parkinson of Whitley Bay (Con)
I had the pleasure of serving on your Lordships’ committee that looked into this matter, under the chairmanship of my noble friend. I am pleased to say that the more than 50 recommendations of its report have been taken forward in this work. We want new protections to be in force quickly. As your Lordships’ committee, and my noble friend, pointed out, many of these new protections do not require waiting for primary legislation. We will bring forward changes through Gambling Commission licence conditions for operators and through secondary legislation. For measures that require primary legislation, that will be when parliamentary time allows.
The commission has taken a more interventionist and aggressive stance. In 2022-23, operators were required to pay more than £60 million in penalties, with William Hill recently paying a record £19.2 million because of its failings. The commission is taking the action we need, and Ministers meet its chief exec and chairman regularly to continue to discuss that.
Baroness Armstrong of Hill Top (Lab)
My Lords, I remind the House of my interests: I am a trustee of GambleAware, I am on the advisory group of the Behavioural Insights Team, I am a vice-chair of Peers for Gambling Reform and I also served on the Select Committee. There is lots to welcome. I do not want to go through every issue, but one that I am concerned about is the position of young people who are tempted into gambling through some sports, particularly football. There is simply not enough in the White Paper that deals with that.
From research, we know that nearly half of 11 to 17 year-olds report seeing gambling adverts on social media at least weekly. We know that half of children’s sections in football matchday programmes feature gambling sponsors. Anybody who goes to football on a regular basis knows that the whole game has been almost taken over by the gambling industry: you cannot go to a match without having it in your face. What the Premier League will do, welcome as it is, is far too partial and small, and it is not for all of football. We need to do this so that many young people are not led into things that they then cannot control. Nothing in the White Paper helps us with that.
Lord Parkinson of Whitley Bay (Con)
I am grateful to the noble Baroness—we had the opportunity briefly to discuss this with some officials earlier, and I know that she will continue to take the opportunities to do that as we implement this. She is right to point to the importance of sponsorship in sport and its impact on children. With the reforms we have made to advertising that has the greatest appeal to children, we have taken action in this area.
The most prominent branding on players’ kits is of course on the front of their shirts. It is not just what people see on the television; it is on the shirts that young supporters buy and wear. So we welcome the action taken to remove that; it is the most effective restriction to break the association. The White Paper sets out further detail: sports bodies are working together to design and implement a cross-sport code of conduct to raise standards for gambling sponsorship across the sector. There is detail in the White Paper and more work to be done.
Viscount Astor (Con)
My Lords, I have two questions for my noble friend the Minister. I congratulate him on finally producing the White Paper, which has 256 pages. However, there are two bits missing, so to speak, the first of which is about how these policies will be subject to parliamentary oversight. It is not clear how the Gambling Commission will receive policy decisions from the Government and how it will be accountable to DCMS and Parliament. Secondly, careful reading of the White Paper reveals that, “when parliamentary time allows”, the Government will replace the requirement for the Gambling Commission’s fees to be subject either to the Secretary of State’s approval or to secondary legislation. Does that mean that the Gambling Commission will be able to set any fee it wishes without any oversight from Parliament? The Gambling Commission has not covered itself in glory in the last few years, and it will have to raise its game if it is to take on these significant responsibilities. I declare that I am a member of the All-Party Parliamentary Racing and Bloodstock Industries Group and that I own a horse, which I hope to put a bet on when it runs next month.
Lord Parkinson of Whitley Bay (Con)
The precise design of the levy will be decided by consultation, following which we will introduce the levy by secondary legislation, affording an opportunity for debate in your Lordships’ House and in another place. The Act is clear that all spending on the levy must be approved by DCMS and His Majesty’s Treasury. We do not direct the Gambling Commission on its regulation of gambling more widely—it is an independent regulator—but we work closely together on matters pertaining to this review, and DCMS Ministers will continue to be involved as financial risk checks are developed.
Lord St John of Bletso (CB)
My Lords, I declare my interest as an adviser to Betway, as declared in the register. I join in welcoming the White Paper. At a time when over 22 million people enjoy a bet each month and when problem gambling has fallen to 0.2% from 0.3% the previous year, can the Minister elaborate on the measures being taken to promote a level playing field for the betting and gambling industry? More specifically, what measures are being taken to reduce the unregulated black market, where there are no protections for young children, no affordability checks, no ombudsman and no tax levied?
Lord Parkinson of Whitley Bay (Con)
The noble Lord is right and, as my right honourable friend the Secretary of State set out in her Statement in another place, we are conscious that this is something that millions of people do for enjoyment with their own money and without harm. We are also conscious of the significant changes to gambling since Parliament last legislated on this matter in a substantial way through the 2005 Act. That is why we held the consultation, have taken action and are carrying on with that work in the meantime. The noble Lord is also right to point to the dangers of the black market. We are very mindful of where people will turn if we do not get this right.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I declare my interest as a member of the executive of Peers for Gambling Reform. I welcome the contents of the White Paper on gambling, which, at last, takes us forward in helping those trapped by addiction to gambling. However, I was extremely disappointed to see that gambling advertising continues unabated; it is virtually impossible to avoid. TV advert breaks all include the dubious benefits and enjoyment of gambling. Similarly, radio stations are peppered with adverts for the large sums of money that can be claimed for the price of a £2 phone call. Can the Minister say why that invidious advertising has not been tackled in the White Paper?
Lord Parkinson of Whitley Bay (Con)
We have been led by a close assessment of the latest evidence on the impact of advertising, which suggests that there is little evidence to show that exposure to advertising leads directly to harmful gambling. However, we recognise that it can have a disproportionate impact on those already suffering harm, and our aim therefore is to tackle aggressive practices. Robust rules are already in place to ensure that advertising is socially responsible and that it cannot be targeted at children, as I mentioned earlier. New rules were introduced recently to strengthen protections for children and vulnerable adults. Targeted restrictions on advertising are just one part of our wider approach to protections, which also includes making products safer and introducing financial risk checks.
Lord Davies of Brixton (Lab)
My Lords, there is much to be welcomed in the White Paper, but I share the concerns expressed by the previous speakers, including, in particular, the timetable. What I welcome in the White Paper—and, in doing so, I declare my interest as a member of the advisory committee of the Money and Mental Health Policy Institute—is that it recognises that the harm caused by gambling is psychological as well as financial. We need to understand better the relationship between gambling and poor mental health. It is bidirectional: gambling leads to mental health problems; people with mental health problems have problems with gambling.
The White Paper identifies the need for better research, particularly longitudinal research and research into the causal relationships involved. It is a shame that the Secretary of State did not include a reference to the psychology of gambling in the original Statement, so can the Minister say something about that? There is also the issue of treatment. If we establish the principle that the polluter pays, there must be an important role for the gambling industry to fund the development of a treatment, which is so clearly needed to help those caught in its grasp.
Lord Parkinson of Whitley Bay (Con)
I mentioned some of the work which has already been taken forward to help vulnerable people. The noble Lord is right to point to people with mental health difficulties and the differential impact that gambling can have on them. Through some of the action we have taken on VIP schemes and other schemes, we know that when addicted people break free from the temptation to gamble, they are drawn back into the orbit of online companies with offers of free bets or free spins, so that is another area in which we are taking action. The research continues, and it will continue to inform the approach we take. The latest evidence available was fed into the review we have concluded, but, as further research is conducted, we look forward to analysing it too.
Baroness Lampard (Con)
My Lords, I refer to my interest as the chair of GambleAware. Like many others, I too welcome the publication of the White Paper and the greater provision of protections from harms caused by gambling. People in the most deprived neighbourhoods are more than twice as likely to experience gambling harm than those in the least deprived; and, despite being less likely to gamble, those from minority communities are far more likely to experience gambling harm than those from white British majority groups. These disparities of harm show how important it is to ensure that gambling harm prevention and treatment are treated as a serious public health issue. However, tackling this effectively as a public health issue requires collaborative working across central and local government, the NHS and the third sector. It also requires long-term strategic planning and secure, long-term funding, including, for instance, the training and recruitment of specialist staff. The current unfairness and uncertainty—as well as the distractions and, frankly, the jockeying for position associated with the current voluntary funding arrangements—have been obvious and have persisted for too long. So, while I welcome the Minister’s assurance that the consultations will be concluded as swiftly as possible, I ask that thought be given to whether the statutory levy, which will allow for the certainty required to tackle gambling harms, might be one of the provisions introduced prior to next summer. We simply cannot wait that long.
Lord Parkinson of Whitley Bay (Con)
I pay tribute to the work my noble friend does with GambleAware in this important area. We welcome the efforts we have seen from the industry to increase contributions to research, education and treatment, but it is vital, as she says, that the system provides long-term funding certainty for organisations that are delivering crucial services, and that the money is completely trusted. We know that the NHS and some researchers will not take money from the voluntary levy, for fear of being compromised by the industry. So, we will consult on how the levy is constructed and how the funding might be directed. As the Gambling Act requires, it will be collected by the Gambling Commission, with spending signed off by the Treasury and DCMS. As I said earlier, we will launch a detailed consultation this summer on the details of the statutory levy, and our priority is that sufficient funding is available and being used effectively where it is needed most.
The Lord Bishop of St Edmundsbury and Ipswich
My Lords, I echo the concerns that have been expressed about advertising, particularly the susceptibility of youngsters to it, but I want to raise a different question. Can the Minister explain the rationale for increasing the number of gambling machines, which are already deeply unpopular with local authorities, require more policing due to the antisocial behaviour associated with them, and often, as was said by the previous speaker, are targeted at poorer areas?
Lord Parkinson of Whitley Bay (Con)
Submissions to our call for evidence were clear that online slots are likely to be the highest risk products, hence the work outlined in the White Paper addressing the risks of those and other products. Restrictive regulations on the number of gaming machines in a venue no longer make sense when it is possible to use a smartphone to gamble anywhere, 24/7. In fact, they can increase harm by making players reluctant to take breaks. What is important is the quality of supervision and monitoring that customers receive in land-based venues. We are maintaining and strengthening the protections for customers that are required in these venues, and we are still requiring operators to offer customers different types of gambling opportunities.
Lord Walney (CB)
I refer the House to my entries in the register of interests, including concerning analysis of the sector’s economic impact on communities across the UK. What will be the Government’s criteria for the success of the single customer view pilot, and how long does the Minister expect that analysis to run?
Lord Parkinson of Whitley Bay (Con)
I cannot give the noble Lord precise answers to that, but I will write to him with the details I am able to furnish at this point.
Lord Bellingham (Con)
My Lords, while I welcome most of the White Paper, why was there only scant and brief reference in it to the National Lottery and society lotteries, which are an incredibly important part of raising money for charity, particularly society lotteries, which raise a great deal of money for good causes in local areas? They face a major disadvantage compared to the National Lottery because of the limits placed on them: for example, the current legal limit for society lotteries is a maximum prize of £25,000 or 10% of the draw proceeds, plus a strict annual limit. There are even tighter limits on smaller society lotteries. Why can we not bring society lotteries in line with the National Lottery, so as to encourage more local people to support these really good local causes?
Lord Parkinson of Whitley Bay (Con)
My noble friend is right to point to the importance of society lotteries for fundraising, and indeed of the National Lottery. As Minister for Heritage, I have the privilege of working with the National Lottery Heritage Fund, which distributes many millions to excellent causes across the United Kingdom. The National Lottery is unique and has its own regulatory framework, with player protection at its heart. There are bespoke levers for player protection purposes, licence conditions, the Gambling Commission’s duties and powers and conditions of approval for individual National Lottery games. Evidence shows that National Lottery games are associated with the lowest risks of problem gambling of all gambling products considered, but we have still raised the age for taking part in the National Lottery to 18, to make sure that we continue to afford the protections to the youngest players which all noble Lords want to see.