Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Moylan

3rd reading
Wednesday 6th September 2023 Lords Chamber

[Lord Moylan (Con)]

Will my noble friend draw attention to the part of Clause 122 that says that Ofcom cannot issue a requirement which is not technically feasible, as he has just said? That does not appear in the text of the clause, and it creates a potential conflict. Even if the requirement is not technically feasible—or, at least, if the platform claims that it is not—Ofcom’s power to require it is not mitigated by the clause. It still has the power, which it can exercise, and it can presumably take some form of enforcement action if it decides that the company is not being wholly open or honest. The technical feasibility is not built into the clause, but my noble friend has just added it, as with quite a lot of other stuff in the Bill.

[Lord Parkinson of Whitley Bay (Con)]

It has to meet minimum standards of accuracy and must have privacy safeguards in place. The clause talks about those in a positive sense, which sets out the expectation. I am happy to make clear, as I have, what that means: if the appropriate technology does not exist that meets these requirements, then Ofcom will not be able to use Clause 122 to require its use. I hope that that satisfies my noble friend.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Moylan

Report stage
Wednesday 19th July 2023 Lords Chamber

[Baroness Stowell of Beeston (Con)]

Just to be clear, am I right to understand my noble friend as saying that there is currently no technology that would be technically acceptable for tech companies to do what is being asked of them? Did he say that tech companies should be looking to develop the technology to do what may be required of them but that it is not currently available to them?

[Lord Moylan (Con)]

For clarification, if the answer to that is that the technology does not exist—which I believe is correct, although there are various snake oil salespeople out there claiming that it does, as the noble Baroness, Lady Fox of Buckley, said—my noble friend seems to be saying that the providers and services should develop it. This seems rather circular, as the Bill says that they must adopt an approved technology, which suggests a technology that has been imposed on them. What if they cannot and still get such a notice? Is it possible that these powers will never be capable of being used, especially if they do not co-operate?

[Lord Parkinson of Whitley Bay (Con)]

To answer my noble friend Lady Stowell first, it depends on the type of service. It is difficult to give a short answer that covers the range of services that we want to ensure are covered here, but we are seeking to keep this and all other parts of the Bill technology neutral so that, as services develop, technology changes and criminals, unfortunately, seek to exploit that, technology companies can continue to innovate to keep children safe while protecting the privacy of their users. That is a long-winded answer to my noble friend’s short question, but necessarily so. Ofcom will need to make its assessments on a case- by-case basis and can require a company to use its best endeavours to innovate if no effective and accurate technology is currently available.

While I am directing my remarks towards my noble friend, I will also answer a question she raised earlier on general monitoring. General monitoring is not a legally defined concept in UK law; it is a term in European Union law that refers to the generalised monitoring of user activity online, although its parameters are not clearly defined. The use of automated technologies is already fundamental to how many companies protect their users from the most abhorrent harms, including child sexual abuse. It is therefore important that we empower Ofcom to require the use of such technology where it is necessary and proportionate and ensure that the use of these tools is transparent and properly regulated, with clear and appropriate safeguards in place for users’ rights. The UK’s existing intermediary liability regime remains in place.

Amendment 255 from my noble friend Lord Moylan seeks to prevent Ofcom imposing any requirement in a notice that would weaken or remove end-to-end encryption. He is right that end-to-end encryption should not be weakened or removed. The powers in the Bill will not do that. These powers are underpinned by proportionality and technical feasibility; if it is not proportionate or technically feasible for companies to identify child sexual exploitation abuse content on their platform while upholding users’ right to privacy, Ofcom cannot require it.

I agree with my noble friend and the noble Baroness, Lady Fox, that encryption is a very important and popular feature today. However, with technology evolving at a rapid rate, we cannot accept amendments that would risk this legislation quickly becoming out of date. Naming encryption in the Bill would risk that happening. We firmly believe that the best approach is to focus on strong safeguards for upholding users’ rights and ensuring that measures are proportionate to the specific situation, rather than on general features such as encryption.

The Bill already requires Ofcom to consider the risk that technology could result in a breach of any statutory provision or rule of law concerning privacy and whether any alternative measures would significantly reduce the amount of illegal content on a service. As I have said in previous debates, Ofcom is also bound by the Human Rights Act not to act inconsistently with users’ rights.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Moylan

Report stage
Monday 17th July 2023 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

Yes.

[Lord Moylan (Con)]

My Lords, this has indeed been a wide-ranging and miscellaneous debate. I hope that since we are considering the Bill on Report noble Lords will forgive me if I do not endeavour to summarise all the different speeches and confine myself to one or two points.

The first is to thank the noble Baroness, Lady Kidron, for her support for my amendment but also to say that having heard her argument in favour of her Amendment 191A, I think the difference between us is entirely semantic. Had she worded it so as to say that Ofcom should be under a duty to offer advice to the Chief Coroner, as opposed to guidance to coroners, I would have been very much happier with it. Guidance issued under statute has to carry very considerable weight and, as my noble friend the Minister said, there is a real danger in that case of an arm of the Executive, if you like, or a creature of Parliament—however one wants to regard Ofcom—interfering in the independence of the judiciary. Had she said “advice to the Chief Coroner and whoever is the appropriate officer in Scotland”, that would have been something I could have given wholehearted support to. I hope she will forgive me for raising that quibble at the outset, but I think it is a quibble rather than a substantial disagreement.

On my own amendment, I simply say that I am grateful to my noble friend for the brevity and economy with which he disposed of it. He was of course assisted in that by the remarks and arguments made by many other noble Lords in the House as they expressed their support for it in principle.

I think there is a degree of confusion about what the Bill is doing. There seemed to be a sense that somehow the amendment was giving individuals the right to bring actions in the courts against providers, but of course that already happens because that right exists and is enshrined in Article 65. All the amendment would do is give some balance so that consumers actually had some protections in what is normally, in essence, an unequal contest, which is trying to ensure that a large company enforces the terms and contracts that it has written.

In particular, my amendment would give, as I think noble Lords know, the right to demand repeat performance—that is, in essence, the right to put things right, not monetary compensation—and it would frustrate any attempts by providers, in drafting their own terms and conditions, to limit their own liability. That is of course what they seek to do but the Consumer Rights Act frustrates them in their ability to do so.

We will say no more about that for now. With that, I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

I have addressed the points made by the noble Baroness and my noble friend already. She asks the same question again and I can give her the same answer. We are operating openly and transparently here, and the Bill sets out further provisions for transparency and accountability.

[Lord Moylan (Con)]

My Lords, I see what my noble friend did there, and it was very cunning. He gave us a very worthwhile account of the activities of the Counter Disinformation Unit, a body I had not mentioned at all, as if the Counter Disinformation Unit was the sole locus of this sort of activity. I had not restricted it to that. We know, in fact, that other bodies within government have been involved in undertaking this sort of activity, and on those he has given us no answer at all, because he preferred to answer about one particular unit. He referred also to its standardised transparency processes. I can hardly believe that I am reading out words such as those. The standardised transparency process allows us all to know that encounters take place but still refuses to let us know what actually happens in any particular encounter, even though there is a great public interest in doing so. However, I will not press it any further.

My noble friend, who is genuinely a friend, is in danger of putting himself, at the behest of civil servants and his ministerial colleagues, in some danger. We know what happens in these cases. The Minister stands at the Dispatch Box and says “This has never happened; it never normally happens; it will not happen. Individuals are never spoken of, and actions of this character are never taken”. Then of course, a few weeks or months later, out pour the leaked emails showing that all these things have been happening all the time. The Minister then has to resign in disgrace and it is all very sad. His friends, like myself, rally round and buy him a drink, before we never see him again.

Anyway, I think my noble friend must be very careful that he does not put himself in that position. I think he has come close to doing so this evening, through the assurances he has given your Lordships’ House. Although I do not accept those assurances, I will none the less withdraw the amendment, with the leave of the House.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Moylan

Report stage
Monday 10th July 2023 Lords Chamber

[Lord Moylan (Con)]

My Lords, before my noble friend sits down, perhaps I could seek a point of clarification. I think I heard him say, at the beginning of his response to this short debate, that providers will be required to have terms of service which respect users’ rights. May I ask him a very straightforward question: do those rights include the rights conferred by Article 10 of the European Convention on Human Rights? Put another way, is it possible for a provider operating in the United Kingdom to have terms and conditions that abridge the rights conferred by Article 10? If it is possible, what is the Government’s defence of that? If it is not possible, what is the mechanism by which the Bill achieves that?

[Lord Parkinson of Whitley Bay (Con)]

As I set out, I think my noble friend and the noble Baroness, Lady Fox, are not right to point to the European Convention on Human Rights here. That concerns individuals’ and entities’ rights

“to receive and impart ideas without undue interference”

by public authorities, not private entities. We do not see how a service provider deciding not to allow certain types of content on its platform would engage the Article 10 rights of the user, but I would be very happy to discuss this further with my noble friend and the noble Baroness in case we are talking at cross-purposes.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Moylan

Report stage
Thursday 6th July 2023 Lords Chamber

[Lord Moylan (Con)]

I take this opportunity to ask my noble friend the Minister a question; I want some clarity about this. Would an abusive comment about a particular religion—let us say a religion that practised cannibalism or a historical religion that sacrificed babies, as we know was the norm in Carthage—count as “priority harmful content”? I appreciate that we are mapping the language of the Equality Act, but are we creating a new offence of blasphemy in this Bill?

[Lord Parkinson of Whitley Bay (Con)]

As was pointed out by others in the debate, the key provision in Amendment 172 is subsection (2) of the proposed new clause, which relates to:

“Content which is abusive and which targets any of the following characteristics”.


It must both be abusive and target the listed characteristics. It does not preclude legitimate debate about those things, but if it were abusive on the basis of those characteristics—rather akin to the debate we had in the previous group and the points raised by the noble Baroness, Lady Kennedy of The Shaws, about people making oblique threats, rather than targeting a particular person, by saying, “People of your characteristic should be abused in the following way”—it would be captured.

--- Later in debate ---

[Lord Moylan (Con)]

My noble friend seemed to confirm what I said. If I wish to be abusive—in fact, I do wish to be abusive—about the Carthaginian religious practice of sacrificing babies to Moloch, and I were to do that in a way that came to the attention of children, would I be caught as having created “priority harmful content”? My noble friend appears to be saying yes.

[Lord Parkinson of Whitley Bay (Con)]

Does my noble friend wish to do that and direct it at children?

[Lord Moylan (Con)]

With respect, it does not say “directed at children”. Of course, I am safe in expressing that abuse in this forum, but if I were to do it, it came to the attention of children and it were abusive—because I do wish to be abusive about that practice—would I have created “priority harmful content”, about which action would have to be taken?

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Moylan

Committee stage
Thursday 22nd June 2023 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

It needs to be addressed, because these very small websites already alluded to are providing some extremely nasty stuff. They are not providing support to people and helping decrease the amount of harm to those self-harming but seem to be enjoying the spectacle of it. We need to differentiate and make sure that we do not inadvertently let one group get away with disseminating very harmful material simply because it has a small website somewhere else. I hope that will be included in the Minister’s letter; I do not expect him to reply now.

[Lord Moylan (Con)]

Some of us are slightly disappointed that my noble friend did not respond to my point on the interaction of Clause 160 with the illegal content duty. Essentially, what appears to be creating a criminal offence could simply be a channel for hyperactive censorship on the part of the platforms to prevent the criminal offence taking place. He has not explained that interaction. He may say that there is no interaction and that we would not expect the platforms to take any action against offences under Clause 160, or that we expect a large amount of action, but nothing was said.

[Lord Parkinson of Whitley Bay (Con)]

If my noble friend will forgive me, I had better refresh my memory of what he said—it was some time ago—and follow up in writing.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Moylan

Committee stage
Thursday 11th May 2023 Lords Chamber

[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.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Moylan

Committee stage
Tuesday 9th May 2023 Lords Chamber

[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.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Moylan

Committee stage
Tuesday 9th May 2023 Lords Chamber

[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.

--- Later in debate ---

[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.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Moylan

Committee stage
Thursday 27th April 2023 Lords Chamber

[Lord Moylan (Con)]

Or indeed any evidence.

[Lord Parkinson of Whitley Bay (Con)]

I take the noble Lord’s point and my noble friend’s further contribution. I will see whether I can give a clearer and more succinct description in writing to flesh that out, but that it is the reason that we have alighted on the words that we have.

The noble Lord, Lord Allan, also asked about jurisdiction. If an offence has been committed in the UK and viewed by a UK user, it can be treated as illegal content. That is set out in Clause 53(11), which says:

“For the purposes of determining whether content amounts to an offence, no account is to be taken of whether or not anything done in relation to the content takes place in any part of the United Kingdom”.


I hope that that bit, at least, is clearly set out to the noble Lord’s satisfaction. It looks like it may not be.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

If it has been committed in the UK and is viewed by a UK user, it can be treated as illegal. I will follow up on the noble Lord’s further points ahead of the next stage.

Amendment 272 explicitly provides that relevant information that is reasonably available to a provider includes information submitted by users in complaints. Providers will already need to do this when making judgments about content, as it will be both relevant and reasonably available.

My noble friend Lord Moylan returned to the question that arose on day 2 in Committee, querying the distinction between “protect” and “prevent”, and suggesting that a duty to protect would or could lead to the excessive removal of content. To be clear, the duty requires platforms to put in place proportionate systems and processes designed to prevent users encountering content. I draw my noble friend’s attention to the focus on systems and processes in that. This requires platforms to design their services to achieve the outcome of preventing users encountering such content. That could include upstream design measures, as well as content identification measures, once content appears on a service. By contrast, a duty to protect is a less stringent duty and would undermine the proactive nature of the illegal content duties for priority offences.

[Lord Moylan (Con)]

Before he moves on, is my noble friend going to give any advice to, for example, Welsh Wikipedia, as to how it will be able to continue, or are the concerns about smaller sites simply being brushed aside, as my noble friend explicates what the Bill already says?

[Lord Parkinson of Whitley Bay (Con)]

I will deal with all the points in the speech. If I have not done so by the end, and if my noble friend wants to intervene again, I would be more than happy to hear further questions, either to answer now or write to him about.

Amendments 128 to 133 and 143 to 153, in the names of the right reverend Prelate the Bishop of Derby and the noble Lord, Lord Stevenson of Balmacara, seek to ensure that priority offences relating to modern slavery and human trafficking, where they victimise children, are included in Schedule 6. These amendments also seek to require technology companies to report content which relates to modern slavery and the trafficking of children—including the criminal exploitation of children—irrespective of whether it is sexual exploitation or not. As noble Lords know, the strongest provisions in the Bill relate to children’s safety, and particularly to child sexual exploitation and abuse content. These offences are captured in Schedule 6. The Bill includes a power for Ofcom to issue notices to companies requiring them to use accredited technology or to develop new technology to identify, remove and prevent users encountering such illegal content, whether communicated publicly or privately.

These amendments would give Ofcom the ability to issue such notices for modern slavery content which affects children, even when there is no child sexual exploitation or abuse involved. That would not be appropriate for a number of reasons. The power to tackle illegal content on private communications has been restricted to the identification of content relating to child sexual exploitation and abuse because of the particular risk to children posed by content which is communicated privately. Private spaces online are commonly used by networks of criminals to share illegal images—as we have heard—videos, and tips on the commitment of these abhorrent offences. This is highly unlikely to be reported by other offenders, so it will go undetected if companies do not put in place measures to identify it. Earlier in Committee, the noble Lord, Lord Allan, suggested that those who receive it should report it, but of course, in a criminal context, a criminal recipient would not do that.

Extending this power to cover the identification of modern slavery in content which is communicated privately would be challenging to justify and could represent a disproportionate intrusion into someone’s privacy. Furthermore, modern slavery is usually identified through patterns of behaviour or by individual reporting, rather than through content alone. This reduces the impact that any proactive technology required under this power would have in tackling such content. Schedule 6 already sets out a comprehensive list of offences relating to child sexual exploitation and abuse which companies must tackle. If these offences are linked to modern slavery—for example, if a child victim of these offences has been trafficked—companies must take action. This includes reporting content which amounts to an offence under Schedule 6 to the National Crime Agency or another reporting body outside of the UK.

My noble friend Lord Moylan’s Amendment 135 seeks to remove the offence in Section 5 of the Public Order Act 1986 from the list of priority offences. His amendment would mean that platforms were not required to take proactive measures to reduce the risk of content which is threatening or abusive, and intended to cause a user harassment, alarm or distress, from appearing on their service. Instead, they would be obliged to respond only once they are made aware of the content, which would significantly reduce the impact of the Bill’s framework for tackling such threatening and abusive content. Given the severity of the harm which can be caused by that sort of content, it is right that companies tackle it. Ofcom will have to include the Public Order Act in its guidance about illegal content, as provided for in Clause 171.

Government Amendments 136A to 136C seek to strengthen the illegal content duties by adding further priority offences to Schedule 7. Amendments 136A and 136B will add human trafficking and illegal entry offences to the list of priority offences in the Bill. Crucially, this will mean that platforms will need to take proactive action against content which encourages or assists others to make dangerous, illegal crossings of the English Channel, as well as those who use social media to arrange or facilitate the travel of another person with a view to their exploitation.

The noble Lord, Lord Allan, asked whether these amendments would affect the victims of trafficking themselves. This is not about going after the victims. Amendment 136B addresses only content which seeks to help or encourage the commission of an existing immigration offence; it will have no impact on humanitarian communications. Indeed, to flesh out a bit more detail, Section 2 of the Modern Slavery Act makes it an offence to arrange or facilitate the travel of another person, including through recruitment, with a view to their exploitation. Facilitating a victim’s travel includes recruiting them. This offence largely appears online in the form of advertisements to recruit people into being exploited. Some of the steps that platforms could put in place include setting up trusted flagger programmes, signposting users to support and advice, and blocking known bad actors. Again, I point to some of the work which is already being done by social media companies to help tackle both illegal channel crossings and human trafficking.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Moylan

Committee stage
Tuesday 25th April 2023 Lords Chamber

[Lord Moylan (Con)]

My Lords, while my noble friend is talking about the possibility of excessive and disproportionate burden on businesses, can I just ask him about the possibility of excessive and disproportionate burden on the regulator? He seems to be saying that Ofcom is going to have to maintain, and keep up to date regularly, 25,000 risk assessments—this is on the Government’s own assessment, produced 15 months ago, of the state of the market then—even if those assessments carried out by Ofcom result in very little consequence for the regulated entity.

We know from regulation in this country that regulators already cannot cope with the burdens placed on them. They become inefficient, sclerotic and unresponsive; they have difficulty in recruiting staff of the same level and skills as the entities that they regulate. We have a Financial Services and Markets Bill going through at the moment, and the FCA is a very good example of that. Do we really think that this is a sensible burden to place on a regulator that is actually able to discharge it?

[Lord Parkinson of Whitley Bay (Con)]

The Bill creates a substantial new role for Ofcom, but it has already substantially recruited and prepared for the effective carrying out of that new duty. I do not know whether my noble friend was in some of the briefings with officials from Ofcom, but it is very happy to set out directly the ways in which it is already discharging, or preparing to discharge, those duties. The Government have provided it with further resource to enable it to do so. It may be helpful for my noble friend to have some of those discussions directly with the regulator, but we are confident that it is ready to discharge its duties, as set out in the Bill.

I was about to say that we have already had a bit of discussion on Wikipedia. I am conscious that we are going to touch on it again in the debate on the next group of amendments so, at the risk of being marked down for repetition, which is a black mark on that platform, I shall not pre-empt what I will say shortly. But I emphasise that the Bill does not impose prescriptive, one-size-fits-all duties on services. The codes of practice from Ofcom will set out a range of measures that are appropriate for different types of services in scope. Companies can follow their own routes to compliance, so long as they are confident that they are effectively managing risks associated with legal content and, where relevant, harm to children. That will ensure that services that already use community moderation effectively can continue to do so—such as Wikipedia, which successfully uses that to moderate content. As I say, we will touch on that more in the debate on the next group.

Amendment 9, in the name of my noble friend Lord Moylan, is designed to exempt small and medium sized-enterprises working to benefit the public from the scope of the Bill. Again, I am sympathetic to the objective of ensuring that the Bill does not impose undue burdens on small businesses, and particularly that it should not inhibit services from providing valuable content of public benefit, but I do not think it would be feasible to exempt service providers deemed to be

“working to benefit the public”.

I appreciate that this is a probing amendment, but the wording that my noble friend has alighted on highlights the difficulties of finding something suitably precise and not contestable. It would be challenging to identify which services should qualify for such an exemption.

Taking small services out of scope would significantly undermine the framework established by the Bill, as we know that many smaller services host illegal content and pose a threat to children. Again, let me reassure noble Lords that the Bill has been designed to avoid disproportionate or unnecessary regulatory burdens on small and low-risk services. It will not impose a disproportionate burden on services or impede users’ access to value content on smaller services.

Amendment 9A in the name of the noble Lord, Lord Knight of Weymouth, is designed to exempt “sector specific search services” from the scope of the Bill, as the noble Baroness, Lady Merron, explained. Again, I am sympathetic to the intention here of ensuring that the Bill does not impose a disproportionate burden on services, but this is another amendment that is not needed as it would exempt search services that may pose a significant risk of harm to children, or because of illegal content on them. The amendment aims to exempt specialised search services—that is, those that allow users to

“search for … products or services … in a particular sector”.

It would exempt specialised search services that could cause harm to children or host illegal content—for example, pornographic search services or commercial search services that could facilitate online fraud. I know the noble Lord would not want to see that.

The regulatory duties apply only where there is a significant risk of harm and the scope has been designed to exclude low-risk search services. The duties therefore do not apply to search engines that search a single database or website, for example those of many retailers or other commercial websites. Even where a search service is in scope, the duties on services are proportionate to the risk of harm that they pose to users, as well as to a company’s size and capacity. Low-risk services, for example, will have minimal duties. Ofcom will ensure that these services can quickly and easily comply by publishing risk profiles for low-risk services, enabling them easily to understand their risk levels and, if necessary, take steps to mitigate them.

The noble Lord, Lord McCrea, asked some questions about the 200 most popular pornographic websites. If I may, I will respond to the questions he posed, along with others that I am sure will come in the debate on the fifth group, when we debate the amendments in the names of the noble Lord, Lord Morrow, and the noble Baroness, Lady Ritchie of Downpatrick, because that will take us on to the same territory.

I hope that provides some assurance to my noble friend Lord Moylan, the noble Baroness, Lady Fox, and others, and that they will be willing not to press their amendments in this group.

Dormant Assets Bill [HL]

Debate between Lord Parkinson of Whitley Bay and Lord Moylan

Consideration of Commons amendments
Wednesday 9th February 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My noble friend asks a good question, on which I will have to write to give him the answer and the full list, if he will forgive me for doing so.

I was just coming to the third reason why Amendment 3 is our preferred way of proceeding. The provisions inserted in this House would not achieve their objective of speeding up the pace of delivery. We must reiterate that releasing this money will not be immediate; indeed, we anticipate it taking several years for the £880 million to be released, and we do not expect any funds to be available for some time. Undercutting the consultation process would not materially affect the pace of that funding release. The Government have committed to launching the first public consultation on the purposes of the expanded English portion as soon as possible after Royal Assent. We anticipate that it could be live as soon as this summer and will be open for at least 12 weeks.

I repeat my commitment to write to my noble friend with the answer to his question, and I beg to move.

[Lord Moylan (Con)]

My Lords, before my noble friend sits down, does he agree that, especially in current circumstances, it would be wholly inappropriate to transfer funds from the TfL balance sheet by way of seizing what are alleged to be surplus Oyster assets, many of which are there because people, often from abroad, choose to leave assets on their Oyster card for when they visit London, which may be only once every few years?

[Lord Parkinson of Whitley Bay (Con)]

My noble friend raises an interesting point that has not been made hitherto during the passage of the Bill, but I know that he speaks with considerable experience from his time working with TfL. If he allows me, I will write to him with further information about the implications for Oyster cards, which is a matter that has not been covered. It may have been covered in another place, but I have not seen whether that is the case.

Universities: Compulsory Redundancies

Debate between Lord Parkinson of Whitley Bay and Lord Moylan

Monday 21st June 2021 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

As I have just mentioned, the Government are seeking to increase R&D funding to 2.4% of GDP by 2027, and the decisions for the University of Leicester are for it to make. In light of the pandemic, we have provided the help that I have outlined to the University of Leicester and institutions across the country.

[Lord Moylan (Con)]

My Lords, we have a more strategic problem here: a universities business model that depends on, and is very sensitive to, overseas students, foreign research funding—not least from China—and the management of the rent rolls for the accommodation of students staying and studying away from home. Post Covid and post Brexit, all that seems to be in question. Is it not time that we had a strategic review of what our universities are capable of doing and what they are there to achieve?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, we are very proud of the attractiveness of UK higher education institutions to international students. We have an international students strategy that seeks to build on the successes of the past, informed by Sir Steve Smith, the former vice-chancellor of the University of Exeter. The financial stability of our world-leading university base has been a key aspect considered in all recent spending reviews. Foreign tuition and research income from outside the EU account for 15% and 1% of the total income of higher education institutions overall, so, while China may be an important contributor to non-EU foreign income, it would be wrong to characterise the sector as highly dependent on that country alone.

Higher Education: New and Returning Students

Debate between Lord Parkinson of Whitley Bay and Lord Moylan

Thursday 15th April 2021 Lords Chamber

[Lord Moylan]

To ask Her Majesty’s Government when they intend to update their guidance on Students returning to, and starting, Higher Education, last published on 8 March, following the resumption of university courses after Easter.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, on Tuesday my honourable friend the Universities Minister and I laid Written Statements confirming that, following the review of when all higher education students could return to in-person teaching, remaining students on non-practical courses should return to in-person teaching alongside step 3 of the road map out of lockdown no earlier than 17 May. Alongside this, the guidance document for students returning to or starting higher education was updated and published.

[Lord Moylan (Con)]

My Lords, I am grateful to the Government for updating the guidance shortly after this Question was tabled. I am, of course, conscious of the need for sensible restraint in emerging from lockdown. However, by 17 May, many summer terms will be so far advanced that it will be almost not worth while, in many cases, restarting physical teaching. For many students, I suspect that it will be the autumn before they get back to where they ought to be. It seems to me that university students have been handed yet again the shortest of short straws and are bearing a disproportionate part of the national burden. Will my noble friend think again?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, of course we recognise the difficulties and disruption that a return in line with step 3 might cause the students. It does allow them, however, to receive some extra in-person teaching and assessment, to engage with extra-curricular activities, to take part in face-to-face careers support, to visit specialist libraries and so on, as well as to see their peers and boost their mental health. Students are keen to get back to campus and universities are keen to have them back. We want to enable this as soon as the public health situation allows.