Media Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

2nd reading
Wednesday 28th February 2024 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful for the widespread support that has been expressed for the Bill from across your Lordships’ House, and the recognition of the important difference that it will make for our much-valued broadcasters and media organisations. I reassure noble Lords that I do indeed get it, and I share the warm appreciation that they have expressed for our public service broadcasters.

In fact, my very first paid employment, at the tender age of 14, was playing the part of a French ghost named Guillaume, in a children’s television programme which was broadcast on ITV on Halloween in 1997. As well as getting to film that in a château outside Dijon, I was paid £400, a princely sum for a 14 year- old, which I used to buy a television set of my own, for my room. That was the TV set on which, two years later, I watched the seminal Channel 4 drama “Queer as Folk”, the 25th anniversary of which we mark this year, and its ground-breaking importance is still keenly appreciated by so many people.

I share the strong sentiments that noble Lords have expressed about the importance of public service broadcasters, the programmes they produce and the fulfilling jobs they support and sustain. I am grateful to noble Lords for their enthusiasm for the Bill and look forward to working with them in the many areas in which they have set out their interests.

A number of noble Lords, including the noble Baronesses, Lady Kidron and Lady Foster, the right reverend Prelate the Bishop of Leeds, the noble Lord, Lord Hall of Birkenhead, focused on the changes to remit and the question of genres. I reassure noble Lords that the Government recognise the importance of a diverse media sector in the UK, where audiences can select from a wide range of programmes, according to their own tastes and interests, and indeed to have those tastes and interests expanded. Our public service broadcasters have an important and distinctive role to play in helping to achieve that. To ensure that the regulatory framework supports these outcomes, the Bill replaces the 14 overlapping purposes and objectives to which public service broadcasters must contribute with a new, modernised remit. It is intended to provide a much clearer sense of our public service broadcasters’ distinctive role in the sector.

At the same time, it has always been our intention that the revised public service broadcasting framework, including the new remit, should retain the requirement on our public service broadcasters to produce a wide range of programmes. The Government have listened to the views expressed by the Culture, Media and Sport Committee in another place; in particular, the committee’s concerns that the remit is not clear enough on this point. As a result, as the noble Viscount, Lord Colville, noted, we have added an explicit requirement that our public service broadcasters should, together, continue to make a range of genres available.

Ofcom will continue to collect and publish data on the prevalence of different genres; we have retained the current requirement under Section 358 of the Communications Act, which, among other things, requires Ofcom to report annually on the availability of principal genres on television and radio services. At present, Ofcom fulfils this duty in its annual communications and markets report, which last year reported on 15 key genres including religion and belief, arts and classical music, and educational content. We expect this reporting to be retained.

Moreover, should Ofcom identify a problem with the spread of genres, including in relation to religious programming—which a number of noble Lords mentioned —then the Bill allows for the remit to be updated, and indeed for the creation of additional quotas for underserved content areas. I am happy to reassure the noble Baroness, Lady Kidron, that the House does indeed have my ear on this, and I hope that she and others will recognise from the changes that we have already made to the Bill in this area that it also has the ears of my ministerial colleagues.

I agree that the noble Baroness, Lady Benjamin, made a powerful speech about the importance of children’s television, and I strongly agree on the importance of ensuring that our children continue to have access to the public service content, indeed as does my colleague Julia Lopez, the Minister in another place. She spoke passionately there about the profound and positive impact that high-quality, original British programming can have. As the noble Baroness noted, children now have access to an endless library of global content at their fingertips. While there is some great programming out there for them to access, a lot of it can be generic and lack substance. That is why the Bill includes specific measures to ensure that original British children’s programming, which reflects the world around children here in the UK, remains front and centre of the public service remit.

A number of noble Lords rightly focused on the provisions and the benefits in the Bill for Scotland and the Scottish broadcasting sector and creative economy. The Government are clear about the incredibly valuable contribution that the Gaelic media service MG Alba makes across Scotland and the rest of the UK. Its partnership with the BBC is particularly significant for Gaelic language broadcasting. I assure noble Lords, including the right reverend Prelate the Bishop of Newcastle, the noble Lord, Lord Stevenson of Balmacara, the noble Baroness, Lady Bull, and my noble friends Lord Dunlop and Lady Fraser of Craigmaddie, that the ongoing provision of Gaelic broadcasting and the future of MG Alba will be key considerations as we take forward the BBC funding review and the forthcoming charter review concluding in 2027. The right time to consider these issues is during the review of the royal charter, given the closeness of the link between the BBC and MG Alba. We will provide further details in due course on our timeline for that important review. The Government certainly—

[Lord Stevenson of Balmacara (Lab)]

I am sorry to interrupt the noble Lord. He is making a very important point, and we respect the way it has been expressed, but is it not also the case that the negotiations between the Government and the BBC are limited to those two participants, and therefore the role for Parliament is not clear? Could he perhaps explain what contribution we could make as Parliament?

[Lord Parkinson of Whitley Bay (Con)]

Through debates such as the one we have had today, and through Questions, which I am always happy to answer from this Dispatch Box on behalf of His Majesty’s Government to set out our thinking. As I say, once we have set out more details on the timetable for that review, I am happy to provide updates to the House on the Government’s thinking as we take those discussions forward.

I and the Government certainly agree with noble Lords on the importance of Gaelic language broadcasting. The Bill will help to ensure that audiences are able to access content in languages other than English, as well as content which is so culturally important to people across the UK, for decades to come, by including it in the new public service remit for television for the first time.

Not wanting the noble Lord, Lord Wigley, to feel outgunned—and I point to my noble friend Lord Harlech on the Government Front Bench for this Bill—I also highlight that the Media Bill will implement legislative reforms following the independent review of S4C, which took place in 2018, to reform S4C’s remit, governance structures, commercial powers and audit arrangements. It also provides for changes to the statutory content arrangements set out between the BBC and S4C, to add greater flexibility. These changes will help to deliver the Government’s manifesto commitments to support Welsh institutions such as S4C and to support the Welsh Government’s ambition for a million people in Wales to be able to speak Welsh by 2050.

A number of noble Lords focused on the issue of “significant” or “appropriate” prominence, which was extensively debated in another place. One point that has been lost in the debate so far is that the test under the existing linear prominence regime is already one of appropriateness and not significance. The overwhelming evidence that we have received is that that test has worked well, so I suggest that the question is not why “appropriate” is better than “significant” but why the Bill should move away from terminology that is widely understood and has delivered for audiences.

The Government agree on the importance of ensuring that public service content is prominent and easily accessible on major TV platforms. As is already the case in the linear sphere, public service broadcasters’ applications, and the content they provide, should be among the most prominent on the platform, whether that is on the home page, in search results or through the recommendations, such as those that currently confound the noble Baroness, Lady Thornton.

In addition to that core aim of securing prominence for public service broadcasters’ services and content online, the regime must also be operable and proportionate to allow for innovation and consumer choice. For example, it must account for the differing requirements of audiences in different parts of the UK. While it remains important that designated STV services receive prominence in Scotland and designated S4C services are prominent in Wales, it would not, for instance, be appropriate to require those services to be given the same degree of prominence outside Scotland and Wales.

As the Government set out in our response to the Culture, Media and Sport Select Committee’s final report on the Bill, we have looked carefully at whether requiring “significant” prominence would be preferable to requiring “appropriate” prominence, and we concluded that the descriptor “significant” would not be sufficiently flexible or operable. For instance, it would not address the question of regional prominence that I have just outlined. As any visitors to their local department store can attest, there is now a huge range of potential user interfaces and routes to content available from modern televisions. As a result, there can be no one-size-fits-all approach to delivering prominence, and we believe that “appropriate” prominence—as determined by Ofcom in its code of practice, and with flexibility built in—is fundamentally the right choice.

The noble Lord, Lord Bassam of Brighton, asked whether we would the keep the list of regulated television selection services under review, and I am very happy to say that we will indeed do so.

The noble Lord also asked about how the Government intend to measure the sustainability of Channel 4. As part of the reform package agreed with Channel 4 last year, both it and the Government agreed to updates to the financial reporting information that Channel 4 provides to my department and UK Government Investments, the Government’s corporate finance specialists, on a quarterly basis. While there is no perfect way to measure an organisation’s sustainability, that information will help to support our work in considering how best to enable Channel 4 to remain at the centre of British broadcasting for many years to come.

Although I agree with the noble Lord, Lord Inglewood, that there is more to life than sport, I am also grateful to the noble Baroness, Lady Grey-Thompson, my noble friend Lord Holmes of Richmond, the noble Lord, Lord Addington, and others for underlining its importance to very many viewers across the country. I assure the noble Baroness that there is no intention to weaken the public service broadcasters’ hand in negotiations; rather, we will ensure that partnerships between them and commercial broadcasters can function effectively to deliver the best outcomes for audiences and rights holders. Ofcom will have the ability to bring forward regulations, including on adequacy. We recognise that it is vital that broadcasters maintain complete editorial control of live broadcasts when they enter into partnerships, so that they have the freedom to make decisions about what events to screen for the British public.

My noble friend Lord Holmes touched on digital rights for listed events. Legislating to include digital rights is a very complex issue; not only is it technical in nature but a balance needs to be struck between securing the right access for audiences and the commercial freedoms that allow rights holders to reinvest in sport at all levels. The Government believe that it would be more appropriate to evaluate that issue through the digital rights review before considering any potential legislation that would enact any particular conclusion. I hope that he and other noble Lords will be reassured that the issue remains under careful consideration; I am sure that we will debate it in Committee.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Consideration of Commons amendments
Tuesday 19th September 2023 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I too thank the Minister for his swift and concise introduction, which very carefully covered the ground without raising any issues that we have to respond to directly. I am grateful for that as well.

The noble Lord, Lord Clement-Jones, was his usual self. The only thing that I missed, of course, was the quotation that I was sure he was going to give from the pre-legislative scrutiny report on the Bill, which has been his constant prompt. I also think that the noble Baroness, Lady Finlay, was very right to remind us of those outside the House who we must remember as we reach the end of this stage.

Strangely, although we are at the momentous point of allowing this Bill to go forward for Royal Assent, I find that there is actually very little that needs to be said. In fact, everything has been said by many people over the period; trying to make any additional points would be meretricious persiflage. So I will make two brief points to wind up this debate.

First, is it not odd to reflect on the fact that this historic Parliament, with all our archaic rules and traditions, has the capacity to deal with a Bill that is regulating a technology which most of us have difficulty in comprehending, let alone keeping up with? However, we have done a very good job and, as a result, I echo the words that have already been said; I think the internet will now be a much safer place for children to enjoy and explore, and the public interest will be well served by this Bill, even though we accept that it is likely to only be the first of a number of Bills that will be needed in the years to come.

Secondly, I have been reflecting on the offer I made to the Government at Second Reading, challenging them to work together with the whole House to get the best Bill that we could out of what the Commons had presented to us. That of course could have turned out to be a slightly pointless gesture if nobody had responded positively—but they did. I particularly thank the Minister and the Bill team for rising to the challenge. There were problems initially, but we got there in the end.

More widely, there was, I know, a worry that committing to working together would actually stifle debate and somehow limit our crucial role of scrutiny. But actually I think it had the opposite effect. Some of the debates we had in Committee, from across the House, were of the highest standard, and opened up issues which needed to be resolved. People listened to each other and responded as the debate progressed. The discussion extended to the other place. It is very good to see Sir Jeremy Wright here; he has played a considerable role in resolving the final points.

It will not work for all Bills, but if the politics can be ignored, or at least put aside, it seems to make it easier to get at the issues that need to be debated in the round. In suggesting this approach, I think we may have found a way of getting the best out of our House —something that does not always occur. I hope that lesson can be listened to by all groups and parties.

For myself, participating in this Bill and the pre-legislative scrutiny committee which preceded it has been a terrific experience. Sadly, a lot of people who contributed to our discussions over that period cannot be here today, but I hope they read this speech in Hansard, because I want to end by thanking them, and those here today, for being part of this whole process. We support the amendments before the House today and wish good luck to the noble Lord, Lord Grade.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am very conscious that this is not the end of the road. As noble Lords have rightly pointed out in wishing the Bill well, attention now moves very swiftly to Ofcom, under the able chairmanship of the noble Lord, Lord Grade of Yarmouth, who has participated, albeit silently, in our proceedings before, and to the team of officials who stand ready to implement this swiftly. The Bill benefited from pre-legislative scrutiny. A number of noble Lords who have spoken throughout our deliberations took part in the Joint Committee of both Houses which did that. It will also benefit from post-legislative scrutiny, through the Secretary of State’s review, which will take place between two and five years after Royal Assent. I know that the noble Lords who have worked so hard on this Bill for many years will be watching it closely as it becomes an Act of Parliament, to ensure that it delivers what we all want it to.

The noble Lord, Lord Stevenson, reminded us of the challenge he set us at Second Reading: to minimise the votes in dissent and to deliver this Bill without pushing anything to ping-pong. I think I was not the only one in the Chamber who was sceptical about our ability to do so, but it is thanks to the collaborative approach and the tone that he has set that we have been able to do that. That is a credit to everybody involved.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

3rd reading
Wednesday 6th September 2023 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My Lords, in begging to move that the Bill do now pass, I add my words of thanks to all noble Lords who have been involved over many years and many iterations of the Bill, particularly during my time as the Minister and in the diligent scrutiny we have given it in recent months. The Bill will establish a vital legislative framework, making the internet safer for all, particularly for children. We are now closer than ever to achieving that important goal. In a matter of months from Royal Assent, companies will be required to put in place protections to tackle illegal content on their services or face huge fines. I am very grateful to noble Lords for the dedication, attention and time they have given to the Bill while it has been before your Lordships’ House.

The Bill will mark a significant change in children’s safety online. Last month, data from UK police forces showed that 6,350 offences relating to sexual communications with a child were recorded last year alone. These are horrifying statistics which underline the importance of the Bill in building a protective shield for our children online. We cannot let perpetrators of such abhorrent crimes stalk children online and hide behind their screens, nor let companies continue to turn a blind eye to the harm being done to children on their services. We are working closely with Ofcom to make sure that the protections for children established by the Bill are enforced as soon as possible, and we have been clear that companies should not wait for the legislation to come into force before taking action.

The aim of keeping children safe online is woven throughout the Bill, and the changes that we have made throughout its passage in your Lordships’ House have further bolstered it. In order to provide early and clear guidance to companies and Ofcom regarding the content from which children must be protected, rather than addressing these later via secondary legislation, the categories of primary priority and priority content which is harmful to children will now be set out in the Bill.

Following another amendment made during your Lordships’ scrutiny, providers of the largest services will also be required to publish summaries of their risk assessments for illegal content and content which is harmful to children. Further changes to the Bill have also made sure that technology executives must take more responsibility for the safety of those who use their websites. Senior managers will face criminal liability if they fail to comply with steps set by Ofcom following enforcement action to keep children safe on their platforms, with the offence punishable with up to two years in prison.

Noble Lords have rightly raised concerns about what the fast-changing technological landscape will mean for children. The Bill faces the future and is designed to keep pace with emerging technological changes such as AI-generated pornography.

Child sexual exploitation and abuse content generated by AI is illegal, regardless of whether it depicts a real child or not, and the Bill makes it clear that technology companies will be required to identify this content proactively and remove it. Whatever the future holds, the Bill will ensure that guard rails are in place to allow our children to explore it safely online.

I have also had the pleasure of collaborating with noble Lords from across your Lordships’ House who have championed the important cause of strengthening protections for women and girls online, who we know disproportionately bear the brunt of abhorrent behaviour on the internet. Following changes made earlier to the Bill, Ofcom will be required to produce and publish guidance which summarises in one clear place measures that should be taken to reduce the risk of harm to women and girls online. The amendment will also oblige Ofcom to consult when producing the guidance, ensuring that it reflects the voices of women and girls as well as the views of experts on this important issue.

The Bill strikes a careful balance: it tackles criminal activity online and protects our children while enshrining freedom of expression in its legislative framework. A series of changes to the Bill has ensured that adults are provided with greater control over their online experience. All adult users of the largest services will have access to tools which, if they choose to use them, will allow them to filter out content from non-verified users and to reduce the likelihood of encountering abusive content. These amendments, which have undergone careful consideration and consultation, will ensure that the Bill remains proportionate, clear and future-proof.

I am very grateful to noble Lords who have helped us make those improvements and many more. I am conscious that a great number of noble Lords who have taken part in our debates were part of the pre-legislative scrutiny some years ago. They know the Bill very well and they know the issues well, which has helped our debates be well informed and focused. It has helped the scrutiny of His Majesty’s Government, and I hope that we have risen to that.

I am very grateful to all noble Lords who have made representations on behalf of families who have suffered bereavements because of the many terrible experiences online of their children and other loved ones. There are too many for me to name now, and many more who have not campaigned publicly but who I know have been following the progress of the Bill carefully, and we remember them all today.

Again, there are too many noble Lords for me to single out all those who have been so vigilant on this issue. I thank my colleagues on the Front Bench, my noble friends Lord Camrose and Lord Harlech, and on the Front Bench opposite the noble Lords, Lord Knight and Lord Stevenson, and the noble Baroness, Lady Merron. On the Liberal Democrat Benches, I thank the noble Lords, Lord Clement-Jones and Lord Allan of Hallam—who has been partly on the Front Bench and partly behind—who have been working very hard on this.

I also thank the noble Baroness, Lady Kidron, whom I consider a Front-Bencher for the Cross Benches on this issue. She was at the vanguard of many of these issues long before the Bill came to your Lordships’ House and will continue to be long after. We are all hugely impressed by her energy and personal commitment, following the debates not only in our own legislature but in other jurisdictions. I am grateful to her for the collaborative nature of her work with us.

I will not single out other noble Lords, but I am very grateful to them from all corners of the House. They have kicked the tyres of the Bill and asked important questions; they have given lots of time and energy to it and it is a better Bill for that.

I put on record my thanks to the huge team in my department and the Department for Science, Innovation and Technology, who, through years of work, expertise and determination, have brought the Bill to this point. I am grateful to the staff of your Lordships’ House and to colleagues from the Office of the Parliamentary Counsel, in particular Maria White and Neil Shah, and, at the Department for Science, Innovation and Technology, Sarah Connolly, Orla MacRae, Caroline Bowman and Emma Hindley as well as their huge teams, including those who have worked on the Bill over the years but are not currently working on it. They have worked extremely hard and been generous with their time to noble Lords for the use of our work.

The Bill will make a vital difference to people’s safety online, especially children’s safety. It has been a privilege to play a part in it. I was working as a special adviser at the Home Office when this area of work was first mooted. I remember that, when this Bill was suggested in the 2017 manifesto, people suggested that regulating the internet was a crazy idea. The biggest criticism now is that we have not done it sooner. I am very grateful to noble Lords for doing their scrutiny diligently but speedily, and I hope to see the Bill on the statute book very soon. I beg to move that the Bill do now pass.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I am grateful to the Minister for his very kind words to everybody, particularly my Front Bench and me. I also wish him a speedy recovery from his recent illness, although I was less sympathetic when I discovered how much he has been “managing upwards”—in the words of my noble friend Lord Knight—and achieving for us in the last few days. He has obviously been recovering and I am grateful for that. The noble Lord has steered the Bill through your Lordships’ House with great skill and largely single-handedly. It has been a pleasure to work with him, even when he was turning down our proposals and suggestions for change, which he did in the nicest possible way but absolutely firmly.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Report stage
Wednesday 19th July 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)]

My Lords, the government amendments in this group relate to content reporting and complaints procedures. The Bill’s existing duties on each of these topics are a major step forward and will provide users with effective methods of redress. There will now be an enforceable duty on Part 3 services to offer accessible, transparent and easy-to-use complaints procedures. This is an important and significant change from which users and others will benefit directly.

Furthermore, Part 3 services complaints procedures will be required to provide for appropriate action to be taken in response to complaints. The duties here will fundamentally alter how complaints systems are operated by services, and providers will have to make sure that their systems are up to scratch. If services do not comply with their duties, they will face strong enforcement measures.

However, we have listened to concerns raised by your Lordships and others, and share the desire to ensure that complaints are handled effectively. That is why we have tabled Amendments 272AA and 274AA, to ensure that the Bill’s provisions in this area are the subject of a report to be published by Ofcom within two years of commencement.

Amendment 272AA places a requirement on Ofcom to undertake a report about Part 3 services reporting and complaints procedures. The report will assess the measures taken or in use by providers of Part 3 services to enable users and others to report content and make complaints. In assessing the content reporting and complaints measures in place, the report must take into account users’ and others’ experiences of those procedures—including how easy to use and clear they are for reporting content and making complaints, and whether providers are taking appropriate and timely action in response.

In this report, Ofcom must provide advice to the Secretary of State about whether she should use her power set out in Amendment 236C to make regulations imposing an alternative dispute resolution duty on category 1 services. Ofcom may also make wider recommendations about how the complaints and user redress provisions can be strengthened, and how users’ experiences with regard to complaints can be improved more broadly. Amendment 274AA is a consequential amendment ensuring that the usual confidentiality provisions apply to matters contained in that report.

These changes will ensure that the effectiveness of the Bill’s content reporting and complaints provisions can be thoroughly assessed by Ofcom two years after the commencement of the provision, providing time for the relevant reporting and complaints procedures to bed in.

Amendment 236C then provides that the Secretary of State will have a power to make regulations to amend the Act in order to impose an alternative dispute resolution duty on providers of category 1 services. This power can be used after the Secretary of State has published a statement in response to Ofcom’s report. This enables the Secretary of State to impose via regulations a duty on the providers of category 1 services to arrange for and engage in an impartial, out-of-court alternative dispute resolution procedure in respect of complaints. This means that, if the Bill’s existing user redress provisions are found to be insufficient, this requirement can quickly be imposed to strengthen the Bill.

This responds directly to concerns which noble Lords raised about cases where users or parents may feel that they have nowhere to turn if they are dissatisfied with a service’s response to their complaint. We believe that the existing provisions will remedy this, but, if they do not, these new requirements will ensure that there is an impartial, alternative dispute resolution procedure which will work towards the effective resolution of the complaint between the service and the complainant.

At the same time, it will avoid creating a single ombudsman, person or body which may be overwhelmed either through the volume of complaints from multiple services or by the complexity of applying such disparate services’ varying terms of service. Instead, if required, this power will put the onus on the provider to arrange for and engage in an impartial dispute resolution procedure.

Amendment 237D requires that, if regulations are made requiring category 1 services to offer an alternative dispute resolution procedure, such regulation must be subject to the affirmative parliamentary procedure. This ensures that Parliament will continue to have oversight of this process.

I hope that noble Lords are reassured that the Bill not only requires services to provide users and others with effective forms of redress but that these further amendments will ensure that the Bill’s provisions in this area will be thoroughly reviewed and that action can be taken quickly if it is needed. I beg to move.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I am grateful to hear what the Minister has just announced. The scheme that was originally prefigured in the pre-legislative scrutiny report has now got some chance of being delivered. I think the process and procedures are quite appropriate; it does need review and thought. There needs to be account taken of practice on the ground, how people have found the new system is working, and whether or not there are gaps that can be filled this way. I give my full support to the proposal, and I am very glad to see it.

Having got to the Dispatch Box early, I will just appeal to our small but very important group. We are on the last day on Report. We are reaching a number of issues where lots of debate has taken place in Committee. I think it would be quite a nice surprise for us all if we were to get through this quickly. The only way to do that is by restricting our contributions.

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[Lord Stevenson of Balmacara (Lab)]

My Lords, there is very little to add to that. These are important questions. I simply was struck by the thought that the amount of work, effort and thought that has gone into this should not be kept within this Bill. I wonder whether the noble Lord has thought of offering his services to His Majesty’s Treasury, which has difficulty in raising tax from these companies. It would be nice to see that problem resolved.

[Lord Parkinson of Whitley Bay (Con)]

I am looking forward to returning to arts and heritage; I will leave that to my noble friend Lady Penn.

The noble Lord, Lord Allan, asked some good questions. He is right: the provisions and the parliamentary scrutiny allow for the flexibility for all these things to be looked at and scrutinised in the way that he set out. I stress that the fee regime is designed to be fair to industry; that is central to the approach we have taken. The Bill stipulates that Ofcom must charge only proportionate and justifiable fees to industry. The provisions that Ofcom can make via regulation about the qualifying worldwide revenue aim to ensure that fees are truly representative of the revenue relating to the regulated service and that they will encourage financial transparency. They also aim to aid companies with complex structures which would otherwise struggle to segregate revenues attributable to the provider and its connected entities.

The revenue of the group undertaking can be considered in scope of a provider’s qualifying worldwide revenue if the entity was a member of the provider’s group during any part of the qualifying period and the entity receives during the qualifying period any amount referrable to a regulated service. The regulations provide Ofcom with a degree of flexibility as to whether or not to make such provisions, because Ofcom will aim to keep the qualifying worldwide revenue simple.

I am grateful for noble Lords’ support for the amendments and believe that they will help Ofcom and the Government to structure a fair and transparent fee regime which charges proportionate fees to fund the cost of the regulatory regime that the Bill brings in.

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, I have always felt rather sorry for the first Viscount Addison, because what we refer to as the Salisbury convention is really the Salisbury-Addison convention. So while I am grateful to the noble Lord, Lord Stevenson, for his flattering speech, I shall insist on calling it the “Parkinson-Stevenson rule”, not least in the hope that that mouthful will encourage people to forget its name more swiftly.

I am grateful to the noble Lord for his attention to this matter and the useful discussions that we have had. His Amendment 239 would go beyond the existing legislative process for the delegated powers in the Bill by providing for parliamentary committees to be, in effect, inserted into the secondary legislative process. The delegated powers in the Bill are crucial for implementing the regime effectively and for ensuring that it keeps pace with changes in technology. Regulation-making powers are an established part of our legislative practice, and it would not be appropriate to deviate from existing processes.

However, I agree that ongoing parliamentary scrutiny of the regime will be crucial in helping to provide noble Lords and Members in another place with the reassurance that the implementation of the regime is as we intended. As the noble Lord noted, the establishment of the Science, Innovation and Technology Select Committee in another place means that there is a new dedicated committee looking at this important area of public policy. That provides an opportunity for cross-party scrutiny of the online safety regime and broader issues. While it will be, as he said, for respective committees to decide their priorities, we welcome any focus on online safety, and certainly welcome committees in both Houses co-operating effectively on this matter. I am certain that the Communications and Digital Committee of your Lordships’ House will continue to play a vital role in the scrutiny of the online safety regime.

We would fully expect these committees to look closely at the codes of practice, the uses of regulation-making powers and the powers of direction in a way that allows them to focus on key issues of interest. To support that, I can commit that the Government will do two things. First, where the Bill places a consultation requirement on the Government, we will ensure that the relevant committees have every chance to play a part in that consultation by informing them that the process is open. Secondly, while we do not wish to see the implementation process delayed, we will, where possible, share draft statutory instruments directly with the relevant committees ahead of the formal laying process. These timelines will be on a case-by-case basis, considering what is appropriate and reasonably practical. It will be for the committees to decide how they wish to engage with the information that we provide, but it will not create an additional approval process to avoid delaying implementation. I am grateful to my noble friend Lady Stowell of Beeston for her words of caution and wisdom on that point as both chairman of your Lordships’ committee and a former Leader of your Lordships’ House.

I hope that the noble Lord will be satisfied by what I have set out and will be willing to withdraw his amendment so that our rule might enter into constitutional history more swiftly.

[Lord Stevenson of Balmacara (Lab)]

I am very grateful to everyone who has contributed to the debate, despite my injunction that no one was to speak other than those key persons—but it was nice to hear views around the House in support for this proposal, with caution. The noble Baroness, Lady Stowell, was right to be clear that we have to be focused on where we are going on this; there is quite a lot at stake here, and it is a much bigger issue than simply this Bill and these particular issues. Her willingness to take this on in a wider context is most welcome, and I look forward to hearing how that goes. I am also very grateful for the unexpected but very welcome support from the noble Baroness, Lady Fox. It was nice that she finally agreed to meet on one piece of territory, if we cannot agree on some of the others. The noble Lord, Lord Kamall, is right to say that we need to pick up the much broader question about who regulates those who regulate us. This is not the answer, but it certainly gets us a step in the direction.

I was grateful to the Minister for suggesting that the “Parkinson rule” could take flight, but I shall continue to call it by a single name—double-barrelled names are not appropriate here. We will see the results of that in the consultation; the things that already have to be consulted about will be offered to the committees, and it is up to them to respond on that, but it is a very good start. The idea that drafts and issues that are being prepared for future regulation will be shown ahead of the formal process is exactly where I wanted to be on this, so I am very grateful for that. I withdraw the amendment.

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[Lord Parkinson of Whitley Bay (Con)]

To meet the expectation the noble Lord voiced earlier, I will indeed point out that Ofcom can consult the ICO as a skilled person if it wishes to. It is important that we square the circle and look at these issues. The ICO will be able to be involved in the way I have set out as a skilled person.

Before I conclude, I want to address my noble friend Lady Harding’s questions on skilled persons. Given that notices will be issued on a case-by-case basis, and Ofcom will need to look at specific service design and existing systems of a provider to work out how a particular technology would interact with that design system, a skilled person’s report better fits this process by requiring Ofcom to obtain tailored advice rather than general technical advice from an advisory board. The skilled person’s report will be largely focused on the technical side of Ofcom’s assessment: that is to say, how the technology would interact with the service’s design and existing systems. In this way, it offers something similar to but more tailored than a technical advisory board. Ofcom already has a large and expert technology group, whose role it is to advice policy teams on new and existing technologies, to anticipate the impact of technologies and so on. It already has strong links with academia and with external researchers. A technical advisory board would duplicate that function. I hope that reassures my noble friend that the points she raised have been taken into account.

So I hope the noble Lord, Lord Allan, will not feel the need to divide—

[Lord Stevenson of Balmacara (Lab)]

Before the Minister finishes, I posed the question about whether, given the debate and issues raised, he felt completely satisfied that we had arrived at the right solution, and whether there was a case for withdrawing the amendment at this stage and bringing it back at Third Reading, having had further discussions and debate where we could all agree. I take it his answer is “no”.

[Lord Parkinson of Whitley Bay (Con)]

I am afraid it is “no”, and if the noble Lord, Lord Allan, does seek to divide, we will oppose his amendment. I commend the amendments standing in my name in this group to the House.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Report stage
Monday 17th July 2023 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

We think we can rely on Ofcom’s discretion, and point to its current practice. I hope that will reassure my noble friend that it will set out the information she seeks.

[Lord Stevenson of Balmacara (Lab)]

My Lords—

[Lord Parkinson of Whitley Bay (Con)]

I was about to say that I am very happy to write to the noble Lord, Lord Stevenson, about the manner by which consent is given in Clause 53(5)(c), but I think his question is on something else.

[Lord Stevenson of Balmacara (Lab)]

I would be grateful if the Minister could repeat that immediately afterwards, when I will listen much harder.

Just to echo what the noble Baroness was saying, may we take it as an expectation that approaches that are signalled in legislation for broadcasting and communications should apply pari passu to the work of Ofcom in relation to the devolved Administrations?

[Lord Parkinson of Whitley Bay (Con)]

Yes, and we can point to the current actions of Ofcom to show that it is indeed doing this already, even without that legislative stick.

I turn to the amendments in the name of my noble friend Lord Bethell and the noble Lord, Lord Clement-Jones, on researchers’ access to data. Amendment 237ZA would confer on the Secretary of State a power to make provisions about access to information by researchers. As my noble friend knows, we are sympathetic to the importance of this issue, which is why we have tabled our own amendments in relation to it. However, as my noble friend also knows, in such a complex and sensitive area that we think it is premature to endow the Secretary of State with such broad powers to introduce a new framework. As we touched on in Committee, this is a complex and still nascent area, which is why it is different from the other areas to which the noble Lord, Lord Clement-Jones, pointed in his contribution.

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[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a good debate. It is very hard to see where one would want to take it. If it proves anything, it is that the decision to drop the legal but harmful provisions in the Bill was probably taken for the wrong reasons but was the right decision, since this is where we end up—in an impossible moral quandary which no amount of writing, legalistic or otherwise, will get us out of. This should be a systems Bill, not a content Bill.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I start by saying that accurate systems and processes for content moderation are crucial to the workability of this Bill and keeping users safe from harm. Amendment 228 from the noble Lord, Lord Allan of Hallam, seeks to remove the requirement for platforms to treat content as illegal or fraudulent content if reasonable grounds for that inference exist. The noble Lord set out his concerns about platforms over-removing content when assessing illegality.

Under Clause 173(5), platforms will need to have reasonable grounds to determine whether content is illegal or a fraudulent advertisement. Only when a provider has reasonable grounds to infer that said content is illegal or a fraudulent advertisement must it then comply with the relevant requirements set out in the Bill. This would mean removing the content or preventing people from encountering it through risk-based and proportionate systems and processes.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Report stage
Monday 10th July 2023 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a good debate, perhaps unfairly curtailed in terms of the range of voices we have heard, but I am sure the points we wanted to have on the table are there and we can use them in summarising the debate we have had so far.

I welcome the Government’s amendments in this group. They have gone a long way to resolving a number of the difficulties that were left after the Digital Economy Act. As the noble Lord, Lord Clement-Jones, has said, we now have Part 3 and Part 5 hooked together in a consistent and effective way and definitions of “age verification” and “age estimation”. The noble Lord, Lord Grade, is sadly not in his place today—I normally judge the quality of the debate by the angle at which he resides in that top corner there. He is not here to judge it, but I am sure he would be upright and very excited by what we have been hearing so far. His point about the need for companies to be clearly responsible for what they serve up through their services is really important in what we are saying here today.

However, despite the welcome links across to the ICO age-appropriate design code, with the concerns we have been expressing on privacy there are still a number of questions which I think the Minister will want to deal with, either today or in writing. Several noble Lords have raised the question of what “proportionate” means in this area. I have mentioned it in other speeches in other groups. We all want the overall system to be proportionate in the way in which it allocates the powers, duties and responsibilities on the companies providing us with the services they do. But there is an exception for the question of whether children should have access to material which they should not get because of legal constraints, and I hope that “proportionate” is not being used in any sense to evade that.

I say that particularly because the concern has been raised in other debates—and I would be grateful if the Minister could make sure when he comes to respond that this issue is addressed—that smaller companies with less robust track records in terms of their income and expenditures might be able to plead that some of the responsibilities outlined in this section of the Bill do not apply to them because otherwise it would bear on their ability to continue. That would be a complete travesty of where we are trying to get to here, which is an absolute bar on children having access to material that is illegal or in the lists now in the Bill in terms of priority content.

The second worry that people have raised is: will the system that is set up here actually work in practice, particularly if it does not apply to all companies? That relates perhaps to the other half of the coin that I have just mentioned.

The third point, raised by a number of Peers, is: where does all this sit in relation to the review of pornography which was announced recently? A number of questions have been asked about issues which the Minister may be unable to respond to, but I suspect he may also want to write to us on the wider issue of timing and the terms of reference once they are settled.

I think we need to know this as we reach the end of the progress on this Bill, because you cannot expect a system being set up with the powers that are being given to Ofcom to work happily and well if Ofcom knows it is being reviewed at the same time. I hope that some consideration will be given to how we get the system up and running, even if the timescale is now tighter than it was, if at the same time a review rightly positioned to try to look at the wider range of pornography is going to impact on its work.

I want to end on the question raised by a large number of noble Lords: how does all this work sit with privacy? Where information and data are being shared on the basis of assuring access to services, there will be a worry if privacy is not ensured. The amendments tabled by the noble Baroness, Lady Kidron, are very salient to this. I look forward to the Minister’s response to them.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am sorry that the noble Baroness, Lady Benjamin, was unable to be here for the start of the debate on Thursday and therefore that we have not had the benefit of hearing from her today. I am very glad that she was here to hear the richly deserved plaudits from across the House for her years of campaigning on this issue.

I am very glad to have had the opportunity to discuss matters directly with her including, when it was first announced, the review that we have launched. I am pleased that she gave it a conditional thumbs up. Many of her points have been picked up by other noble Lords today. I did not expect anything more than a conditional thumbs up from her, given her commitment to getting this absolutely right. I am glad that she is here to hear some of the answers that I am able to set out, but I know that our discussions would have continued even if she had been able to speak today and that her campaigns on this important issue will not cease; she has been tireless in them. I am very grateful to her, my noble friends Lord Bethell and Lady Harding, the noble Baroness, Lady Kidron, and many others who have been working hard on this.

Let me pick up on their questions and those of the noble Baroness, Lady Ritchie of Downpatrick, and others on the review we announced last week. It will focus on the current regulatory landscape and how to achieve better alignment of online and offline regulation of commercial pornography. It will also look at the effectiveness of the criminal law and the response of the criminal justice system relating to pornography. This would focus primarily on the approach taken by law enforcement agencies and the Crown Prosecution Service, including considering whether changes to the criminal law would address the challenges identified.

The review will be informed by significant expert input from government departments across Whitehall, the Crown Prosecution Service and law enforcement agencies, as well as through consultation with the industry and with civil society organisations and regulators including, as the noble Baroness, Lady Ritchie, rightly says, some of the many NGOs that do important work in this area. It will be a cross-government effort. It will include but not be limited to input from the Ministry of Justice, the Home Office, the Department for Science, Innovation and Technology and my own Department for Culture, Media and Sport. I assure my noble friend Lord Farmer that other government departments will of course be invited to give their thoughts. It is not an exhaustive list.

I detected the enthusiasm for further details from noble Lords across the House. I am very happy to write as soon as I have more details on the review, to keep noble Lords fully informed. I can be clear that we expect the review to be complete within 12 months. The Government are committed to undertaking it in a timely fashion so that any additional safeguards for protecting UK users of online services can be put in place as swiftly as possible.

My noble friend Lord Bethell asked about international alignment and protecting Britain for investment. We continue to lead global discussions and engagement with our international partners to develop common approaches to online safety while delivering on our ambition to make the UK the safest place in the world to be online.

The noble Baroness, Lady Kidron, asked about the new requirements. They apply only to Part 3 providers, which allow pornography or other types of primary priority content on their service. Providers that prohibit this content under their terms of service for all users will not be required to use age verification or age estimation. In practice, we expect services that prohibit this content to use other measures to meet their duties, such as effective content moderation and user reporting. This would protect children from this content instead of requiring measures that would restrict children from seeing content that is not allowed on the service in the first place.

These providers can still use age verification and age estimation to comply with the existing duty to prevent children encountering primary priority content. Ofcom can still recommend age-verification and age-estimation measures in codes of practice for these providers where proportionate. On the noble Baroness’s second amendment, relating to Schedule 4, Ofcom may refer to the age-assurance principles set out in Schedule 4 in its children’s codes of practice.

On the 18-month timetable, I can confirm that 18 months is a backstop and not a target. Our aim is to have the regime in force as quickly as possible while making sure that services understand their new duties. Ofcom has set out in its implementation road map that it intends to publish draft guidance under Part 5 this autumn and draft children’s codes next spring.

The noble Baroness, Lady Ritchie, also asked about implementation timetables. I can confirm that Part 3 and Part 5 duties will be implemented at the same time. Ofcom will publish draft guidance shortly after Royal Assent for Part 5 duties and codes for the illegal content duties in Part 3. Draft codes for Part 3 children’s duties will follow in spring next year. Some Part 3 duties relating to category 1 services will be implemented later, after the categorisation thresholds have been set in secondary legislation.

The noble Lord, Lord Allan of Hallam, asked about interoperability. We have been careful to ensure that the Bill is technology neutral and to allow for innovation across the age-assurance market. We have also included a principle on interoperability in the new list of age-assurance principles in Schedule 4 and the Part 5 guidance.

At the beginning of the debate, on the previous day on Report, I outlined the government amendments in this group. There are some others, which noble Lords have spoken to. Amendments 125 and 217, from the noble Baroness, Lady Kidron, seek to add additional principles on user privacy to the new lists of age-assurance principles for both Part 3 and 5, which are brought in by Amendments 124 and 216. There are already strong safeguards for user privacy in the Bill. Part 3 and 5 providers will need to have regard to the importance of protecting users’ privacy when putting in place measures such as age verification or estimation. Ofcom will be required to set out, in codes of practice for Part 3 providers and in guidance for Part 5 providers, how they can meet these duties relating to privacy. Furthermore, companies that use age-verification or age-estimation solutions will need to comply with the UK’s robust data protection laws or face enforcement action.

Adding the proposed new principles would, we fear, introduce confusion about the nature of the privacy duties set out in the Bill. Courts are likely to assume that the additions are intended to mean something different from the provisions already in the Bill relating to privacy. The new amendments before your Lordships imply that privacy rights are unqualified and that data can never be used for more than one purpose, which is not the case. That would introduce confusion about the nature of—

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[Lord Stevenson of Balmacara (Lab)]

There is always a simple question. We are in a bit of a mess—again. When I said at Second Reading that I thought we should try to work together, as was picked up by the noble Baroness in her powerful speech, to get the best Bill possible out of what we had before us, I really did not know what I was saying. Emotion caught me and I ripped up a brilliant speech which will never see the light of day and decided to wing it. I ended up by saying that I thought we should do the unthinkable in this House—the unthinkable in politics, possibly—and try to work together to get the Bill to come right. As the noble Lord, Lord Clement-Jones, pointed out, I do not think I have ever seen, in my time in this House, so many government amendments setting out a huge number of what we used to call concessions. I am not going to call them concessions—they are improvements to the Bill. We should pay tribute to the Minister, who has guided his extensive team, who are listening anxiously as we speak, in the good work they have been doing for some time, getting questioned quite seriously about where it is taking us.

The noble Lord, Lord Clement-Jones, is quite right to pick up what the pre-legislative scrutiny committee said about this aspect of the work we are doing today and what is in the Bill. We have not really nailed the two big things that social media companies ask: this amplification effect, where a single tweet—or thread, let us call it now—can go spinning around the world and gather support, comment, criticism, complaint, anger and all sorts of things that we probably do not really understand in the short period of time it takes to be read and reacted to. That amplification is not something we see in the real world; we do not really understand it and I am not quite sure we have got to the bottom of where we should be going at this stage.

The second most important point—the point we are stuck on at the moment; this rock, as it were, in the ocean—is the commercial pressure which, of course, drives the way in which companies operate. They are in it for the money, not the social purpose. They did not create public spaces for people to discuss the world because they think it is a good thing. There is no public service in this—this is a commercial decision to get as much money as possible from as many people as possible and, boy, are they successful.

But commercial pressures can have harms; they create harms in ways that we have discussed, and the Bill reflects many of those. This narrow difference between the way the Bill describes content, which is meant to include many of the things we have been talking about today—the four Cs that have been brought into the debate helpfully in recent months—does not really deal with the commercial pressures under which people are placed because of the way in which they deal with social media. We do not think the Bill is as clear as it could be; nor does it achieve as much as it should in trying to deal with that issue.

That is in part to do with the structure. It is almost beyond doubt that the sensibility of what we are trying to achieve here is in the Bill, but it is there at such a level of opacity that it does not have the clarity of the messages we have heard today from those who have spoken about individuals—Milly and that sort of story—and the impact on people. Even the noble Lord, Lord Bethell, whose swimming exploits we must admire, is an unwitting victim of the drive of commercial pressures that sees him in his underwear at inappropriate moments in order that they should seek the profits from that. I think it is great, but I wonder why.

I want to set the Minister a task: to convince us, now that we are at the bar, that when he says that this matter is still in play, he realises what that must imply and will give us a guarantee that we will be able to gain from the additional time that he seeks to get this to settle. There is a case, which I hope he will agree to, for having in the Bill an overarching statement about the need to separate out the harms that arise from content and the harms that arise from the system discussions and debates we have been having today where content is absent. I suggest that, in going back to Clause 1, the overarching objectives clause, it might well be worth seeing whether that might be strengthened so that it covers this impact, so that the first thing to read in the Bill is a sense that we embrace, understand and will act to improve this question of harm arising absent content. There is a case for putting into Clauses 10, 11, 25 and 82 the wording in Amendments 35, 36, 37A and 240, in the name of the noble Baroness, Lady Kidron, and to use those as a way of making sure that every aspect of the journey through which social media companies must go to fulfil the duties set out in the Bill by Ofcom reflects both the content that is received and the design choices made by those companies in bringing forward those proposals for material content harms and the harms that arise from the design choices. Clauses 208 and 209 also have to provide a better consideration of how one describes harms so that they are not always apparently linked to content.

That is a very high hurdle, particularly because my favourite topic of how this House works will be engaged. We have, technically, already passed Clause 1; an amendment was debated and approved, and now appears in versions of the Bill. We are about to finish with Clauses 10 and 11 today, so we are effectively saying to the Minister that he must accept that there are deficiencies in the amendments that have already been passed or would be, if we were to pass Amendments 35, 36, 37A, 85 and 240 in the name of the noble Baroness, Lady Kidron, and others. It is not impossible, and I understand that it would be perfectly reasonable, for the Government to bring back a series of amendments on Third Reading reflecting on the way in which the previous provisions do not fulfil the aspirations expressed all around the House, and therefore there is a need to change them. Given the series of conversations throughout this debate—my phone is red hot with the exchanges taking place, and we do not have a clear signal as to where that will end up—it is entirely up to the Minister to convince the House whether these discussions are worth it.

To vote on this when we are so close seems ridiculous, because I am sure that if there is time, we can make this work. But time is not always available, and it will be up to the Minister to convince us that we should not vote and up to the noble Baroness to decide whether she wishes to test the opinion of the House. We have a three-line Whip on, and we will support her. I do not think that it is necessary to vote, however—we can make this work. I appeal to the Minister to get over the bar and tell us how we are to do it.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am very grateful for the discussion we have had today and the parallel discussions that have accompanied it, as well as the many conversations we have had, not just over the months we have been debating the Bill but over the past few days.

I will turn in a moment to the amendments which have been the focus of the debate, but let me first say a bit about the amendments in this group that stand in my name. As noble Lords have kindly noted, we have brought forward a number of changes, informed by the discussions we have had in Committee and directly with noble Lords who have taken an interest in the Bill for a long time.

Government Amendments 281C, 281D, 281E and 281G relate to the Bill’s interpretation of “harm”, which is set out in Clause 209. We touched on that briefly in our debate on Thursday. The amendments respond to concerns which I have discussed with many across your Lordships’ House that the Bill does not clearly acknowledge that harm and risk can be cumulative. The amendments change the Bill to make that point explicit. Government Amendment 281D makes it clear that harm may be compounded in instances where content is repeatedly encountered by an individual user. That includes, but is not limited to, instances where content is repeatedly encountered as a result of algorithms or functionalities on a service. Government Amendment 281E addresses instances in which the combination of multiple functionalities on a service cumulatively drives up the risk of harm.

Those amendments go hand in hand with other changes that the Government have made on Report to strengthen protections for children. Government Amendment 1, for instance, which we discussed at the beginning of Report, makes it clear that services must be safe by design and that providers must tackle harms which arise from the design and operation of their service. Government Amendments 171 and 172 set out on the face of the Bill the categories of “primary priority” and “priority” content which is harmful to children to allow the protections for children to be implemented as swiftly as possible following Royal Assent. As these amendments demonstrate, the Government have indeed listened to concerns which have been raised from all corners of your Lordships’ House and made significant changes to strengthen the Bill’s protections for children. I agree that it has been a model of the way in which your Lordships’ House operates, and the Bill has benefited from it.

Let me turn to the amendments in the name of the noble Baroness, Lady Kidron. I am very grateful for her many hours of discussion on these specific points, as well as her years of campaigning which led to them. We have come a long way and made a lot of progress on this issue since the discussion at the start of Committee. The nature of online risk versus harm is one which we have gone over extensively. I certainly accept the points that the noble Baroness makes; I know how heartfelt they are and how they are informed by her experience sitting in courtrooms and in coroners’ inquests and talking to people who have had to be there because of the harms they or their families have encountered online. The Government are firmly of the view that it is indisputable that a platform’s functionalities, features or wider design are often the single biggest factor in determining whether a child will suffer harm. The Bill makes it clear that functions, features and design play a key role in the risk of harm occurring to a child online; I draw noble Lords’ attention to Clause 11(5), which makes it clear that the child safety duties apply across all areas of a service, including the way it is designed, operated and used, as well as content present on the service. That makes a distinction between the design, operation and use, and the content.

In addition, the Bill’s online safety objectives include that regulated services should be designed and operated so as to protect from harm people in the United Kingdom who are users of the service, including with regard to algorithms used by the service, functionalities of the services and other features relating to the operation of the service. There is no reference to content in this section, again underlining that the Bill draws a distinction.

This ensures that the role of functionalities is properly accounted for in the obligations on providers and the regulator, but I accept that noble Lords want this to be set out more clearly. Our primary aim must be to ensure that the regulatory framework can operate as intended, so that it can protect children in the way that they deserve and which we all want to see. Therefore, we cannot accept solutions that, however well meaning, may inadvertently weaken the Bill’s framework or allow providers to exploit legal uncertainty to evade their duties. We have come back to that point repeatedly in our discussions.

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[Lord Stevenson of Balmacara (Lab)]

It is always nice to be nice to the Minister.

I will reference, briefly, the introduction of the amendments in the name of the noble Baroness, Lady Fraser of Craigmaddie, which I signed. They were introduced extremely competently, as you would expect, by my noble and learned kinsman Lord Hope. It is important to get the right words in the right place in Bills such as this. He is absolutely right to point out the need to be sure that we are talking about the right thing when we say “freedom of expression”—that we do mean that and not “freedom of speech”; we should not get them mixed up—and, also, to have a consistent definition that can be referred to, because so much depends on it. Indeed, this group might have run better and more fluently if we had started with this amendment, which would have then led into the speeches from those who had the other amendments in the group.

The noble Baroness is not present today, but not for bad news: for good news. Her daughter is graduating and she wanted to be present at that; it is only right that she should do that. She will be back to pick up other aspects of the devolution issues she has been following very closely, and I will support her at that time.

The debate on freedom of expression was extremely interesting. It raised issues that, perhaps, could have featured more fully had this been timetabled differently, as both noble Lords who introduced amendments on this subject said. I will get my retaliation in first: a lot of what has been asked for will have been done. I am sure that the Minister will say that, if you look at the amendment to Clause 1, the requirement there is that freedom of expression is given priority in the overall approach to the Bill, and therefore, to a large extent, the requirement to replace that at various parts of the Bill may not be necessary. But I will leave him to expand on that; I am sure that he will.

Other than that, the tension I referred to in an earlier discussion, in relation to what we are made to believe about the internet and the social media companies, is that we are seeing a true public square, in which expressions and opinions can be exchanged as freely and openly as they would be in a public space in the real world. But, of course, neither of those places really exists, and no one can take the analogy further than has been done already.

The change, which was picked up by the noble Baroness, Lady Stowell, in relation to losing “legal but harmful”, has precipitated an issue which will be left to social media companies to organise and police—I should have put “policing” in quotation marks. As the noble Baroness, Lady Kidron, said, the remedy for much of this will be an appeals mechanism that works both at the company level and for the issues that need rebalancing in relation to complexity or because they are not being dealt with properly. We will not know that for a couple of years, but at least that has been provided for and we can look forward to it. I look forward to the Minister’s response.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I hope that the noble Baroness, Lady Fox, and my noble friend Lord Moylan do feel that they have been listened to. It was striking, in this debate, that they had support from all corners of your Lordships’ House. I know that, at various points in Committee, they may have felt that they were in a minority, but they have been a very useful and welcome one. This debate shows that many of the arguments that they have made throughout the passage of the Bill have resonated with noble Lords from across the House.

Although I have not signed amendments in the names of the noble Baroness and my noble friend Lord Moylan, in many cases it is not because I disagree with them but because I think that what they do is already covered in the Bill. I hope to reassure them of that in what I say now.

Amendments 77 to 81 from the noble Baroness, Lady Fox, would require services to have particular regard to freedom of expression and privacy when deciding on their terms of service. Services will already need to have particular regard to users’ rights when deciding on safety systems to fulfil their duties. These requirements will be reflected in providers’ terms of service, as a result of providers’ duties to set out their safety measures in their terms of service. The framework will also include a range of measures to allow scrutiny of the formulation, clarity and implementation of category 1 providers’ own terms of service.

However, there are some points on which we disagree. For instance, we do not think that it would be appropriate for all providers to have a general duty to have a particular regard to freedom of expression when deciding on their own terms of service about content. We believe that the Bill achieves the right balance. It requires providers to have regard to freedom of expression when carrying out their safety duties, and it enables public scrutiny of terms of service, while recognising providers’ own freedom of expression rights as private entities to set the terms of service that they want. It is of course up to adults to decide which services to use based on the way those services are drawn up and the way the terms of service set out what is permissible in them.

Nothing in the Bill restricts service providers’ ability to set their own terms and conditions for legal content accessed by adults—that is worth stressing. Ofcom will not set platforms’ terms and conditions, nor will it take decisions on whether individual pieces of content should, or should not, be on a platform. Rather, it will ensure that platforms set clear terms and conditions, so that adults know what to expect online, and ensure that platforms have systems and processes in place to enforce those terms and conditions themselves.

Amendment 226 from the noble Baroness, Lady Fox, would require providers to use all relevant information that is reasonably available to them whenever they make judgments about content under their terms of service. That is, where they have included or drafted those terms of service in compliance with duties in the Bill. Her amendment would be to an existing requirement in Clause 173, which already requires providers to take this approach whenever they implement a system or process to comply, and this system is making judgments about certain content. For example, Clause 173 already covers content judgments made via systems and processes that a category 1 provider implements to fulfil its Clause 65 duties to enforce its own terms of service consistently. So we feel that Clause 173 is already broad enough to achieve the objectives that the noble Baroness, Lady Fox, seeks.

My noble friend Lord Moylan’s amendments seek to require Ofcom to have special regard to the importance of protecting freedom of expression when exercising its enforcement duties and when drafting codes or guidance. As we discussed in Committee, Ofcom has existing obligations to protect freedom of expression, and the Bill will include additional measures in this regard. We are also making additional amendments to underline the importance of freedom of expression. I am grateful to the noble and learned Lord, Lord Hope of Craighead, and my noble friend Lady Fraser of Craigmaddie for their work to define “freedom of expression” in the Bill. The Bill’s new overarching statement at Clause 1, as the noble Lord, Lord Stevenson, rightly pointed out, lists “freedom of expression”, signalling that it is a fundamental part of the Bill. That is a helpful addition.

Amendment 188 in the name of the noble Baroness, Lady Fox, seeks to disapply platforms’ Clause 65 duties when platforms’ terms of service restrict lawful expression, or expression otherwise protected by Article 10 of the European Convention on Human Rights. Her amendment would mean that category 1 providers’ Clause 65 duties to enforce clear, accessible terms of service in a consistent manner would not apply to any of their terms of service, where they are making their own decisions restricting legal content. That would greatly undermine the application of these provisions in the Bill.

Article 10 of the European Convention on Human Rights concerns individuals’ and entities’ rights to receive and impart ideas without undue interference by public authorities, not private entities. As such, it is not clear how a service provider deciding not to allow a certain type of content on its platform would engage the Article 10 rights of a user.

Beyond the legal obligations regarding the treatment of certain kinds of user-generated content imposed by this Bill and by other legislation, platforms are free to decide what content they wish, or do not wish, to have on their services. Provisions in the Bill will set out important duties to ensure that providers’ contractual terms on such matters are clear, accessible and consistently enforced.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Report stage
Thursday 6th July 2023 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, much like the noble Lord, Lord Clement-Jones, I started off being quite certain I knew what to say about these amendments. I even had some notes—unusual for me, I know—but I had to throw them away, which I always do with my notes, because the arguments have been persuasive. That is exactly why we are here in Parliament discussing things: to try to reach common solutions to difficult problems.

We started with a challenge to the Minister to answer questions about scope, exemptions and discretion in relation to a named service—Wikipedia. However, as the debate went on, we came across the uncomfortable feeling that, having got so far into the Bill and agreed a lot of amendments today improving it, we are still coming up against quite stubborn issues that do not fit neatly into the categorisation and structures that we have. We do not seem to have the right tools to answer the difficult questions before us today, let alone the myriad questions that will come up as the technology advances and new services come in. Why have we not already got solutions to the problems raised by Amendments 281, 281A and 281B?

There is also the rather difficult idea we have from the noble Lord, Lord Russell, of dark patterns, which we need to filter into our thinking. Why does that not fit into what we have got? Why is it that we are still worried about Wikipedia, a service for public good, which clearly has risks in it and is sometimes capable of making terrible mistakes but is definitely a good thing that should not be threatened by having to conform with a structure and a system which we think is capable of dealing with some of the biggest and most egregious companies that are pushing stuff at us in the way that we have talked about?

I have a series of questions which I do not have the answers to. I am looking forward to the Minister riding to my aid on a white charger of enormous proportions and great skill which will take us out without having to fall over any fences.

If I may, I suggest to the Minister a couple of things. First, we are stuck on the word “content”. We will come back to that in the future, as we still have an outstanding problem about exactly where the Bill sets it. Time and again in discussions with the Bill team and with Ministers we have been led back to the question of where the content problem lies and where the harms relate to that, but this little debate has shown beyond doubt that harm can occur independent of and separate from content. We must have a solution to that, and I hope it will be quick.

Secondly, when approaching anybody or anything or any business or any charity that is being considered in scope for this Bill, we will not get there if we are looking only at the question of its size and its reach. We have to look at the risks it causes, and we have to drill down hard into what risks we are trying to deal with using our armoury as we approach these companies, because that is what matters to the children, vulnerable people and adults who would suffer otherwise, and not the question of whether or not these companies are big or small. I think there are solutions to that and we will get there, but, when he comes to respond, the Minister needs to demonstrate to us that he is still willing to listen and think again about one or two issues. I look forward to further discussions with him.

[Lord Parkinson of Whitley Bay (Con)]

I am grateful to noble Lords for their contributions during this debate. I am sympathetic to arguments that we must avoid imposing disproportionate burdens on regulated services, and particularly that the Bill should not inhibit services from providing valuable information which is of benefit to the public. However, I want to be clear that that is why the Bill has been designed in the way that it has. It has a broad scope in order to capture a range of services, but it has exemptions and categorisations built into it. The alternative would be a narrow scope, which would be more likely inadvertently to exempt risky sites or to displace harm on to services which we would find are out of scope of the Bill. I will disappoint noble Lords by saying that I cannot accept their amendments in this group but will seek to address the concerns that they have raised through them.

The noble Lord, Lord Allan, asked me helpfully at the outset three questions, to which the answers are yes, no and maybe. Yes, Wikipedia and OpenStreetMap will be in scope of the Bill because they allow users to interact online; no, we do not believe that they would fall under any of the current exemptions in the Bill; and the maybe is that Ofcom does not have the discretion to exempt services but the Secretary of State can create additional exemptions for further categories of services if she sees fit.

I must also say maybe to my noble friend Lord Moylan on his point about Wikipedia—and with good reason. Wikipedia, as I have just explained, is in scope of the Bill and is not subject to any of its exemptions. I cannot say how it will be categorised, because that is based on an assessment made by the independent regulator, but I reassure my noble friend that it is not the regulator but the Secretary of State who will set the categorisation thresholds through secondary legislation; that is to say, a member of the democratically elected Government, accountable to Parliament, through legislation laid before that Parliament. It will then be for Ofcom to designate services based on whether or not they meet those thresholds.

It would be wrong—indeed, nigh on impossible—for me to second-guess that designation process from the Dispatch Box. In many cases it is inherently a complex and nuanced matter since, as my noble friend Lady Harding said, many services change over time. We want to keep the Bill’s provisions flexible as services change what they do and new services are invented.

--- Later in debate ---

[Lord Stevenson of Balmacara (Lab)]

My Lords, like the noble Baroness, Lady Harding, I want to make it very clear that I think the House as a whole welcomes the change of heart by the Government to ensure that we have in the Bill the two sides of the question of content that will be harmful to children. We should not walk away from that. We made a big thing of this in Committee. The Government listened and we have now got it. The fact that we do not like it—or do not like bits of it—is the price we pay for having achieved something which is, probably on balance, good.

The shock comes from trying to work out why it is written the way it is, and how difficult it is to see what it will mean in practice when companies working to Ofcom’s instructions will take this and make this happen in practice. That lies behind, I think I am right in saying, the need for the addition to Amendment 172 from the noble Baroness, Lady Kidron, which I have signed, along with the noble Baroness, Lady Harding, and the right reverend Prelate the Bishop of Oxford. Both of them have spoken well in support of it and I do not need to repeat those points.

Somehow, in getting the good of Amendments 171 and 172, we have lost the flexibility that we think we want as well to try to get that through. The flexibility does exist, because the Government have retained powers to amend and change both primary priority content that is harmful to children and the primary content. Therefore, subject to approval through the secondary legislation process, this House will continue to have a concern about that—indeed, both Houses will.

Somehow, however, that does not get to quite where the concern comes from. The concern should be both the good points made by the noble Lord, Lord Russell—I should have caught him up in the gap and said I had already mentioned the fact that we had been together at the meeting. He found some additional points to make which I hope will also be useful to future discussion. I am glad he has done that. He is making a very good point in relation to cultural context and the work that needs to go on—which we have talked about in earlier debates—in order to make this live: in other words, to make people who are responsible for delivering this through Ofcom, but also those who are delivering it through companies, to understand the wider context. In that sense, clearly we need the misinformation/disinformation side of that stuff. It is part and parcel of the problems we have got. But more important even than that is the need to see about the functionality issues. We have come back to that. This Bill is about risk. The process that we will be going through is about risk assessment and making sure that the risks are understood by those who deliver services, and the penalties that follow the failure of the risk assessment process delivering change that we want to see in society.

However, it is not just about content. We keep saying that, but we do not see the changes around it. The best thing that could happen today would be if the Minister in responding accepted that these clauses are good—“Tick, we like them”—but could we just not finalise them until we have seen the other half of that, which is: what are the other risks to which those users of services that we have referred to and discussed are receiving through the systemic design processes that are designed to take them in different directions? It is only when we see the two together that we will have a proper concern.

I may have got this wrong, but the only person who can tell us is the Minister because he is the only one who really understands what is going on in the Bill. Am I not right in saying—I am going to say I am right; he will say no, I am not, but I am, aren’t I?—that we will get to Clauses 208 and 209, or the clauses that used to be 208 and 209, one of which deals with harms from content and the other deals with functionality? We may need to look at the way in which those are framed in order to come back and understand better how these lie and how they interact with that. I may have got the numbers wrong—the Minister is looking a bit puzzled, so I probably have—but the sense is that this will probably not come up until day 4. While I do not want to hold back the Bill, we may need to look at some of the issues that are hidden in the interstices of this set of amendments in order to make sure that the totality is better for those who have to use it.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this has been a useful debate. As the noble Baroness, Lady Kidron, says, because I spoke first to move the government amendments, in effect I got my response in first to her Amendment 174, the only non-government amendment in the group. That is useful because it allows us to have a deeper debate on it.

The noble Baroness asked about the way that organisations such as the British Board of Film Classification already make assessments of sexualised content. However, the Bill’s requirement on service providers and the process that the BBFC takes to classify content are not really comparable. Services will have far less time and much more content to consider them the BBFC does, so will not be able to take the same approach. The BBFC is able to take an extended time to consider maybe just one scene, one image or one conversation, and therefore can apply nuance to its assessments. That is not possible to do at the scale at which services will have to apply the child safety duties in the Bill. We therefore think there is a real risk that they would excessively apply those duties and adversely affect children’s rights online.

I know the noble Baroness and other noble Lords are rightly concerned with protecting rights to free expression and access to information online for children and for adults. It is important that we strike the right balance, which is what we have tried to do with the government amendments in this group.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Report stage
Thursday 6th July 2023 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been an interesting debate that in a curious way moves us from the debate on the first group, which was about the high level of aspiration for this Bill, for the work of those involved in it and indeed for Parliament as a whole, down to some of the nitty-gritty points that emerge from some of the Bill’s proposals. I am very much looking forward to the Minister’s response.

In a sense, where the noble Lord, Lord Clement-Jones, ends, I want to start. The noble and learned Lord, Lord Garnier, did a good job of introducing the points made previously by his colleague, the noble Baroness, Lady Buscombe, in relation to those unfortunate exercises of public comment on businesses, and indeed individuals, that have no reason to receive them. There does not seem to be a satisfactory sanction for that. In a sense he was drawn by the overarching nature of Clause 1, but I think we have established between us that Clause 1 does not have legal effect in the way that he would like, so we would probably need to move further forward. The Government probably need to pick up his points in relation to some of the issues that are raised further down, because they are in fact not dissimilar and could be dealt with.

The key issue is the one that my noble friend Lady Kennedy ended on, in the sense that the law online and the law offline, as mentioned by the noble Lord, Lord Clement-Jones, seem to be at variance about what you can and cannot do in relation to threats issued, whether or not they are general, to a group or groups in society. This is a complex area that needs further thought of the nature that has been suggested, and may well refer back to the points made by the noble Baroness, Lady Morgan. There is something here that we are not tackling correctly. I look forward to the Government’s response. We would support movement in that area should that agreement be made.

Unfortunately, the noble Lord, Lord Russell, whom I am tempted to call my noble friend because he is a friend, has just moved out of his seat—I do not need to give him a namecheck any more—but he and I went to a meeting yesterday, I think, although I have lost track of time. It was called by Luke Pollard MP and related to the incel movement or, as the meeting concluded, what we should call the alleged incel movement, because by giving it a name we somehow give it a position. I wanted to make that point because a lot of what we are talking about here is in the same territory. It was an informal research-focused meeting to hear all the latest research being done on the group of activities going under the name of the alleged incel movement.

I mention that because it plays into a lot of the discussion here. The way in which those who organise it do so—the name Andrew Tate has already been mentioned—was drawn into the debate in a much broader context by that research, particularly because representatives from the Home Office made the interesting point that the process by which the young men who are involved in this type of activity are groomed to join groups and are told that by doing so they are establishing a position that has been denied to them by society in general, and allegedly by women in particular, is very similar to the methods used by those who are cultivating terrorism activity. That may seem to be a big stretch but it was convincing, and the argument and debate around that certainly said to me that there are things operating within the world of social media, with its ability to reach out to those who often feel alone, even if they are not, and who feel ignored, and to reach them in a way that causes them to overreact in the way they deal with the issues they face.

That point was picked up by others, including my noble friend Lady Kennedy and the noble Baroness, Lady Burt, in relation to the way in which the internet itself is in some way gendered against women. I do not in any sense want to apportion blame anywhere for that; it is a much more complex issue than single words can possibly address, but it needs to be addressed. As was said in the meeting and has been said today, there are cultural, educational and holistic aspects here. We really do not tackle the symptoms or the effects of it, but we should also look at what causes people to act in the way they have because of, or through the agency of, the internet.

Having said that, I support the amendments from the noble Lord, Lord Allan, and I look forward to the Government’s response to them. Amendment 5B raises the issue that it will be detrimental to society if people stop posting and commenting on things because they fear that they will be prosecuted—or not even prosecuted but attacked. The messages that they want to share will be lost as a result, and that is a danger that we do not want to encourage. It will be interesting to hear the Minister’s response to that.

The noble Baroness, Lady Burt, made powerful points about the way in which the offence of cyberflashing is going to be dealt with, and the differences between that and the intimate image abuse that we are coming on to in the next group. It may well be that this is the right way forward, and indeed we support the Government in the way that they are going, but it is important to recognise her point that we need a test of whether it is working. The Government may well review the impact of the Bill in the normal way of things, but this aspect needs particular attention; we need to know whether there are prosecutions and convictions and whether people understand the implication of the change in practice. We need publicity, as has been said, otherwise it will not be effective in any case. These issues, mentioned by the noble Baroness, Lady Burt, and picked up by the noble Baroness, Lady Morgan, are important. We will have other opportunities to discuss them, but at this stage we should at least get a response to that.

If it is true that in Northern Ireland there is now a different standard for the way in which cyberflashing offences are to be undertaken—taking into account the points made very well by the noble Baroness, Lady Fox, and the worry about encouraging more offences for which crimes may not necessarily be appropriate at this stage, particularly the one about recklessness—do the Government not have a slight problem here? In the first case, do we really accept that we want differences between the various regions and nations of our country in these important issues? We support devolution but we also need to have a sense of what the United Kingdom as a whole stands for in its relationship with these types of criminal offence, if they are criminal. If that happens, do we need a better understanding of why one part of the country has moved in a particular way, and is that something that we are missing in picking up action that is perhaps necessary in other areas? As my noble friend Lady Kennedy has also said, some of the work she has been doing in Scotland is ahead of the work that we have been doing in this part of the United Kingdom, and we need to pick up the lessons from that as well.

As I said at the beginning, this is an interesting range of amendments. They are not as similar as the grouping might suggest, but they point in a direction that needs government attention, and I very much look forward to the Minister’s comments on them.

[Lord Parkinson of Whitley Bay (Con)]

I am grateful to my noble friends Lady Buscombe and Lord Leicester and my noble and learned friend Lord Garnier for the amendments that they have tabled, with which we began this helpful debate, as well as for their time earlier this week to discuss them. We had a good debate on this topic in Committee and I had a good discussion with my noble friend Lady Buscombe and my noble and learned friend Lord Garnier on Monday. I will explain why the Government cannot accept the amendments that they have brought forward today.

I understand my noble friends’ concerns about the impact that fake reviews can have on businesses, but the Bill and the criminal offences it contains are not the right place to address this issue. The amendments would broaden the scope of the offences and likely result in overcriminalisation, which I know my noble friends would not want to see.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Committee stage
Thursday 25th May 2023 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

I am sorry to interrupt. The Minister has twice given a positive response, but he limited it to child sexual exploitation; he did not mention terrorism, which is in fact the bigger issue. Could he confirm that it is both?

[Lord Parkinson of Whitley Bay (Con)]

Yes, and as I say, I am happy to talk with the noble Lord about this in greater detail. Under the Bill, category 1 companies will have a new duty to safeguard all journalistic content on their platform, which includes citizen journalism. But I will have to take all these points forward with him in our further discussions.

My noble friend Lord Bethell is not here to move his Amendment 220D, which would allow Ofcom to designate online safety regulatory duties under this legislation to other bodies. We have previously discussed a similar issue relating to the Internet Watch Foundation, so I shall not repeat the points that we have already made.

On the amendments on supposedly gendered language in relation to Ofcom advisory committees in Clauses 139 and 155, I appreciate the intention to make it clear that a person of either sex should be able to perform the role of chairman. The Bill uses the term “chairman” to be consistent with the terminology in the Office of Communications Act 2002, and we are confident that this will have no bearing on Ofcom’s decision-making on who will chair the advisory committees that it must establish, just as, I am sure, the noble Lord’s Amendment 56 does not seek to be restrictive about who might be an “ombudsman”.

I appreciate the intention of Amendment 262 from the noble Baroness, Lady Bennett of Manor Castle. It is indeed vital that the review reflects the experience of young people. Clause 159 provides for a review to be undertaken by the Secretary of State, and published and laid before Parliament, to assess the effectiveness of the regulatory framework. There is nothing in the existing legislation that would preclude seeking the views of young people either as part of an advisory group or in other ways. Moreover, the Secretary of State is required to consult Ofcom and other persons she considers appropriate. In relation to young people specifically, it may be that a number of different approaches will be effective—for example, consulting experts or representative groups on children’s experiences online. That could include people of all ages. The regulatory framework is designed to protect all users online, and it is right that we take into account the full spectrum of views from people who experience harms, whatever their age and background, through a consultation process that balances all their interests.

Amendment 268AA from the noble Lord, Lord Bassam, relates to reporting requirements for online abuse and harassment, including where this is racially motivated—an issue we have discussed in Questions and particularly in relation to sport. His amendment would place an additional requirement on all service providers, even those not in scope of the Bill. The Bill’s scope extends only to user-to-user and search services. It has been designed in this way to tackle the risk of harm to users where it is highest. Bringing additional companies in scope would dilute the efforts of the legislation in this important regard.

Clauses 16 and 26 already require companies to set up systems and processes that allow users easily to report illegal content, including illegal online abuse and harassment. This amendment would therefore duplicate this existing requirement. It also seeks to create an additional requirement for companies to report illegal online abuse and harassment to the Crown Prosecution Service. The Bill does not place requirements on in-scope companies to report their investigations into crimes that occur online, other than child exploitation and abuse. This is because the Bill aims to prevent and reduce the proliferation of illegal material and the resulting harm it causes to so many. Additionally, Ofcom will be able to require companies to report on the incidence of illegal content on their platforms in its transparency reports, as well as the steps they are taking to tackle that content.

I hope that reassures the noble Lord that the Bill intends to address the problems he has outlined and those explored in the exchange with the noble Lord, Lord Clement-Jones. With that, I hope that noble Lords will support the government amendments in this group and be satisfied not to press theirs at this point.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

I am grateful to noble Lords for helping us to reach our target for the first time in this Committee, especially to do so in a way which has given us a good debate on which to send us off into the Whitson Recess. I am off to the Isle of Skye, so I will make a special detour to Balmacara in honour of the noble Lord.

[Lord Stevenson of Balmacara (Lab)]

May I have a postcard?

[Lord Parkinson of Whitley Bay (Con)]

The noble Lord does not believe anything that I say at this Dispatch Box, but I will send a postcard.

As noble Lords are by now well aware, all services in scope of the Bill, regardless of their size, will be required to take action against illegal content and all services likely to be accessed by children must put in place protections for children. Companies designated as category 1 providers have significant additional duties. These include the overarching transparency, accountability and freedom of expression duties, as well as duties on content of democratic importance, news publishers’ content, journalistic content and fraudulent advertising. It is right to put such duties only on the largest platforms with features enabling the greatest reach, as they have the most significant influence over public discourse online.

I turn first to Amendment 192 in the name of my noble friend Lady Morgan of Cotes and Amendment 192A from the noble Lord, Lord Griffiths of Burry Port, which are designed to widen category 1 definitions to include services that pose a risk of harm, regardless of their number of users. Following removal of the legal but harmful provisions in another place, the Bill no longer includes the concept of risk of harm in Category 1 designation. As we set out, it would not be right for the Government to define what legal content it considers harmful to adults, and it follows that it would not be appropriate for the Government to categorise providers and to require them to carry out duties based on this definition.

In addition, requiring all companies to comply with the full range of Category 1 duties would pose a disproportionate burden on services which do not exert the same influence over public discourse online. I appreciate the point made by the noble Baroness, Lady Bull, with regard to regulatory burden. There is a practical element to this as well. Services, particularly smaller ones, have finite resources. Imposing additional duties on them would divert them from complying with their illegal and child safety duties, which address the most serious online harms. We do not want to weaken their ability to tackle criminal activity or to protect children.

As we discussed in detail in a previous debate, the Bill tackles suicide and self-harm content in a number of ways. The most robust protections in the Bill are for children, while those for adults strike a balance between adults being protected from illegal content and given more choice over what legal content they see. The noble Lord, Lord Stevenson, asked why we do not start with the highest risk rather than thinking about the largest services, but we do. We start with the most severe harms—illegal activity and harm to children. We are focusing on the topics of greatest risk and then, for other categories, allowing adults to make decisions about the content with which they interact online.

A number of noble Lords referred to suicide websites and fora. We are concerned about the widespread availability of content online which promotes and advertises methods of suicide and self-harm, which can be easily accessed by young or vulnerable people. Under the Bill, where suicide and self-harm websites host user-generated content, they will be in scope of the legislation. These sites will need proactively to prevent users from being exposed to priority illegal content, including content which encourages or assists suicide under the terms of the Suicide Act 1961. Additionally, it is an offence under Section 4(3) of the Misuse of Drugs Act 1971 for a website to offer to sell controlled drugs to consumers in England and Wales. Posting advice on how to obtain such drugs in England and Wales is also likely to be an offence, regardless of where the person providing the advice is located.

The Bill also limits the availability of such content by placing illegal content duties on search services, including harmful content which affects children or where this content is shared on user-to-user services. This will play a key role in reducing traffic that directs people to websites which encourage or assist suicide, and reduce the likelihood of users encountering such content. The noble Baroness, Lady Bull, asked about starvation. Encouraging people to starve themselves or not to take prescribed medication will be covered.

Amendment 194 tabled by the noble Lord, Lord Stevenson of Balmacara, seeks to ensure that Ofcom can designate companies as category 1, 2A or 2B on a provisional basis, when it considers that they are likely to meet the relevant thresholds. This would mean that the relevant duties can be applied to them, pending a full assessment by Ofcom. The Government recognise the concern highlighted by the noble Lord, Lord Allan, about the rapid pace of change in the technology sector and how that can make it challenging to keep the register of the largest and most influential services up to date. I assure noble Lords that the Bill addresses this with a duty which the Government introduced during the Bill’s recommittal in another place. This duty, at Clause 88, requires Ofcom proactively to identify and publish a list of companies which are close to category 1 thresholds. This will reduce any delays in Ofcom adding additional obligations on companies which grow rapidly, or which introduce new high-risk features. It will also ensure that the regime remains agile and adaptable to emerging threats.

Platforms with the largest reach and greatest influence over public discourse will be designated as category 1. The Bill sets out a clear process for determining category 1 providers, based on thresholds relating to these criteria, which will be set by the Secretary of State in secondary legislation. The process has been designed to ensure that it is transparent and evidence-based. We expect the main social media platforms and possibly some others to be designated as category 1 services, but we do not wish to prejudge the process set out above by indicating which specific services are likely to be designated, as I have set out on previous groups.

The amendment would enable Ofcom to place new duties on companies without due process. Under the approach that we take in the Bill, Ofcom can designate companies as belonging to each category based only on an objective assessment of evidence against thresholds approved by Parliament. The Government’s approach also provides greater certainty for companies, as is proposed in this amendment. We have heard concerns in previous debates about when companies will have the certainty of knowing their category designation. These amendments would introduce continuous uncertainty and subjectivity into the designation process and would give Ofcom significant discretion over which companies should be subject to which duties. That would create a very uncertain operating environment for businesses and could reduce the attractiveness of the UK as a place to do business.

I hope that explains why we are not taken by these amendments but, in the spirit of the Whitsun Recess, I will certainly think about them on the train as I head north. I am very happy to discuss them with noble Lords and others between now and our return.

[Lord Stevenson of Balmacara (Lab)]

Before the Minister sits down, he did let slip that he was going on the sleeper, so I do not think that there will be much thinking going on—although I did not sleep a wink the last time I went, so I am sure that he will have plenty of time.

I am sure that the noble Baroness, Lady Morgan, will want to come in—but could he repeat that again? Risk assessment drives us, but the risk assessment for a company that will not be regarded as a category 1 provider because it does not meet categorisation thresholds means that, even though it is higher risk than perhaps even some of the category 1 companies, it will not be subject to the requirements to pick up the particular issues raised by the noble Baroness and the noble Lord, and their concerns for those issues, which are clearly social harms, will not really be considered on a par.

[Lord Parkinson of Whitley Bay (Con)]

In the response I gave, I said that we are making the risk assessment that the riskiest behaviour is illegal content and content which presents a harm to children. That is the assessment and the approach taken in the Bill. In relation to other content which is legal and for adults to choose how they encounter it, there are protections in the Bill to enforce terms of service and empower users to curate their own experience online, but that assessment is made by adult users within the law.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Thursday 25th May 2023 Lords Chamber

[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?

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Committee stage
Tuesday 23rd May 2023 Lords Chamber

[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.

--- Later in debate ---

[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.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Committee stage
Tuesday 16th May 2023 Lords Chamber

[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

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Committee stage
Tuesday 16th May 2023 Lords Chamber

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Committee stage
Tuesday 9th May 2023 Lords Chamber

[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.

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[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 Stevenson of Balmacara (Lab)]

That is the point I was making.

[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.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Committee stage
Tuesday 9th May 2023 Lords Chamber

[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.

--- Later in debate ---

[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.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Committee stage
Tuesday 2nd May 2023 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

I do not think so, but I will certainly look at it again, and I am very happy to speak to the noble Lord as I do. My point is that it would not be workable or proportionate for a provider to prevent or protect all children from encountering every single instance of the sort of content that I have just outlined, which would be the effect of these amendments. I will happily discuss that with the noble Lord and others between now and Report.

Amendment 27, by the noble Lord, Lord Stevenson, seeks to add a duty to prevent children encountering targeted paid-for advertising. As he knows, the Bill has been designed to tackle harm facilitated through user-generated content. Some advertising, including paid-for posts by influencers, will therefore fall under the scope of the Bill. Companies will need to ensure that systems for targeting such advertising content to children, such as the use of algorithms, protect them from harmful material. Fully addressing the challenges of paid-for advertising is a wider task than is possible through the Bill alone. The Bill is designed to reduce harm on services which host user-generated content, whereas online advertising poses a different set of problems, with different actors. The Government are taking forward work in this area through the online advertising programme, which will consider the full range of actors and sector-appropriate solutions to those problems.

[Lord Stevenson of Balmacara (Lab)]

I understand the Minister’s response, and I accept that there is a parallel stream of work that may well address this. However, we have been waiting for the report from the group that has been looking at that for some time. Rumours—which I never listen to—say that it has been ready for some time. Can the Minister give us a timescale?

[Lord Parkinson of Whitley Bay (Con)]

I cannot give a firm timescale today but I will seek what further information I can provide in writing. I have not seen it yet, but I know that the work continues.

Amendments 28 and 82, in the name of the noble Lord, Lord Russell, seek to remove the size and capacity of a service provider as a relevant factor when determining what is proportionate for services in meeting their child safety duties. This provision is important to ensure that the requirements in the child safety duties are appropriately tailored to the size of the provider. The Bill regulates a large number of service providers, which range from some of the biggest companies in the world to small voluntary organisations. This provision recognises that what it is proportionate to require of providers at either end of that scale will be different.

Removing this provision would risk setting a lowest common denominator. For instance, a large multinational company could argue that it is required only to take the same steps to comply as a smaller provider.

Amendment 32A from the noble Lord, Lord Knight of Weymouth, would require services to have regard to the potential use of virtual private networks and similar tools to circumvent age-restriction measures. He raised the use of VPNs earlier in this Committee when we considered privacy and encryption. As outlined then, service providers are already required to think about how safety measures could be circumvented and take steps to prevent that. This is set out clearly in the children’s risk assessment and safety duties. Under the duty at Clause 10(6)(f), all services must consider the different ways in which the service is used and the impact of such use on the level of risk. The use of VPNs is one factor that could affect risk levels. Service providers must ensure that they are effectively mitigating and managing risks that they identify, as set out in Clause 11(2). The noble Lord is correct in his interpretation of the Bill vis-à-vis VPNs.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Committee stage
Thursday 27th April 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)]

My Lords, I am grateful for this short and focused debate, which has been helpful, and for the points made by the noble Lords, Lord Stevenson and Lord Allan, and the noble Baroness, Lady Kidron. I think we all share the same objective: ensuring that terms of service promote accountability and transparency, and empower users.

One of the Bill’s key objectives is to ensure that the terms of service of user-to-user platforms are suitable and effective. Under the Bill, companies will be required both to set out clearly how they will tackle illegal content and protect children and to ensure that their terms of service are properly enforced. The additional transparency and accountability duties on category 1 services will further ensure that users know what to expect on the largest platforms. This will put an end to these services arbitrarily removing content or, conversely, failing to remove content that they profess to prohibit.

The Bill will also ensure that search services are clear to their users about how they are complying with their adult and child safety duties under this new law. Given the very different way in which search services operate, however, this will be achieved through a publicly available statement rather than through terms of service. The two are meant distinctly.

Noble Lords are right to point to the question of intelligibility. It struck me that, if it takes 10 days to read terms of service, perhaps we should have a race during the 10 days allotted to this Committee stage to see which is quicker—but I take the point. The noble Lord, Lord Allan, is also right that the further requirements imposed through this Bill will only add to that.

The noble Baroness, Lady Kidron, asked a fair question about what “accessibility” means. The Bill requires all platforms’ terms of service for illegal content and child safety duties to be clear and accessible. Ofcom will provide guidance on what that means, including ensuring that they are suitably prominent. The same applies to terms of service for category 1 services relating to content moderation.

I will focus first on Amendments 16, 21, 66DA, 75 and 197, which seek to ensure that both Ofcom and platforms consider the risks associated with platforms’ terms of service with regard to the illegal content and child safety duties in the Bill. We do not think that these amendments are needed. User-to-user services will already be required to assess the risks regarding their terms of service for illegal content. Clause 8 requires companies to assess the “design and operation” of a service in relation to illegal content. As terms of service are integral to how a service operates, they would be covered by this provision. Similarly, Clause 10 sets out that companies likely to be accessed by children will be required to assess the “design and operation” of a service as part of their child risk assessments, which would include the extent to which their terms of service may reduce or increase the risk of harm to children.

In addition to those risk assessment duties, the safety duties will require companies to take proportionate measures effectively to manage and mitigate the risk of harm to people whom they have identified through risk assessments. This will include making changes to their terms of service, if appropriate. The Bill does not impose duties on search services relating to terms of service, as search services’ terms of service play a less important role in determining how users can engage on a platform. I will explain this point further when responding to specific amendments relating to search services but I can assure the noble Lord, Lord Stevenson, that search services will have comprehensive duties to understand and mitigate how the design and operation of their service affects risk.

Amendment 197 would require Ofcom to assess how platforms’ terms of service affect the risk of harm to people that the sector presents. While I agree that this is an important risk factor which Ofcom must consider, it is already provided for in Clause 89, which requires Ofcom to undertake an assessment of risk across regulated services. That requires Ofcom to consider which characteristics of regulated services give rise to harm. Given how integral terms of service are to how many technology companies function, Ofcom will necessarily consider the risk associated with terms of service when undertaking that risk assessment.

However, elevating terms of service above other systems and processes, as mentioned in Clause 89, would imply that Ofcom needs to take account of the risk of harm on the regulated service, more than it needs to do so for other safety-by-design systems and processes or for content moderation processes, for instance. That may not be suitable, particularly as the service delivery methods will inevitably change over time. Instead, Clause 89 has been written to give Ofcom scope to organise its risk assessment, risk register and risk profiles as it thinks suitable. That is appropriate, given that it is best placed to develop detailed knowledge of the matters in question as they evolve over time.

Amendments 70, 71, 72, 79, 80, 81, 174 and 302 seek to replace the Bill’s references to publicly available statements, in relation to search services, with terms of service. This would mean that search services would have to publish how they are complying with their illegal content and child protection duties in terms of service rather than in publicly available statements. I appreciate the spirit in which the noble Lord has tabled and introduced these amendments. However, they do not consider the very different ways in which search services operate.

User-to-user services’ terms of service fulfil a very specific purpose. They govern a user’s behaviour on the service and set rules on what a user is allowed to post and how they can interact with others. If a user breaks these terms, a service can block his or her access or remove his or her content. Under the status quo, users have very few mechanisms by which to hold user-to-user platforms accountable to these terms, meaning that users can arbitrarily see their content removed with few or no avenues for redress. Equally, a user may choose to use a service because its terms and conditions lead them to believe that certain types of content are prohibited while in practice the company does not enforce the relevant terms.

The Bill’s duties relating to user-to-user services’ terms of service seek to redress this imbalance. They will ensure that people know what to expect on a platform and enable them to hold platforms accountable. In contrast, users of search services do not create content or interact with other users. Users can search for anything without restriction from the search service provider, although a search term may not always return results. It is therefore not necessary to provide detailed information on what a user can and cannot do on a search service. The existing duties on such services will ensure that search engines are clear to users about how they are complying with their safety duties. The Bill will require search services to set out how they are fulfilling them, in publicly available statements. Their actions must meet the standards set by Ofcom. Using these statements will ensure that search services are as transparent as user-to-user services about how they are complying with their safety duties.

The noble Lord’s Amendment 174 also seeks to expand the transparency reporting requirements to cover the scope and application of the terms of service set out by search service providers. This too is unnecessary because, via Schedule 8, the Bill already ensures transparency about the scope and application of the provisions that search services must make publicly available. I hope that gives the noble Lord some reassurance that the concerns he has raised are already covered. With that, I invite him to withdraw Amendment 16.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I am very grateful to the Minister for that very detailed response, which I will have to read very carefully because it was quite complicated. That is the answer to my question. Terms of service will not be very easy to identify because to answer my questions he has had to pray in aid issues that Ofcom will necessarily have to assess—terms of services—to get at whether the companies are performing the duties that the Bill requires of them.

I will not go further on that. We know that there will be enough there to answer the main questions I had about this. I take the point about search being distinctively different in this area, although a tidy mind like mine likes to see all these things in one place and understand all the words. Every time I see “publicly available statement”, I do not know why but I think about people being hanged in public rather than a term of service or a contract.

--- Later in debate ---

[Lord Stevenson of Balmacara (Lab)]

My Lords, we seem to have done it again—a very long list of amendments in a rather ill-conceived group has generated a very interesting discussion. We are getting quite good at this, exchanging views across the table, across the Committee, even within the Benches—Members who perhaps have not often talked together are sharing ideas and thoughts, and that is a wonderful feeling.

I want to start with an apology. I think I may be the person who got the noble Baroness, Lady Kidron, shopped by the former leader—once a leader, always a leader. What I thought I was being asked was whether the Committee would be interested in hearing the views of the noble Viscount who could not be present, and I was very keen, because when he does speak it is from a point of view that we do not often hear. I did not know that it was a transgression of the rules—but of course it is not, really, because we got round it. Nevertheless, I apologise for anything that might have upset the noble Baroness’s blood pressure—it did not stop her making a very good contribution later.

We have covered so much ground that I do not want to try and summarise it in one piece, because you cannot do that. The problem with the group as it stands is that the right reverend Prelate the Bishop of Derby and myself must have some secret connection, because we managed to put down almost the same amendments. They were on issues that then got overtaken by the Minister, who finally got round to—I mean, who put down a nice series of amendments which exactly covered the points we made, so we can lose all those. But this did not stop the right reverend Prelate the Bishop of Guildford making some very good additional points which I think we all benefited from.

I welcome back the noble Baroness, Lady Buscombe, after her illness; she gave us a glimpse of what is to come from her and her colleagues, but I will leave the particular issue that she raised for the Minister to respond to. It raises an issue that I am not competent on, but it is a very important one—we need to get the right balance between what is causing the alarm and difficulty outside in relation to what is happening on the internet, and I think we all agree with her that we should not put any barrier in the way of dealing with that.

Indeed, that was the theme of a number of the points that have been raised on the question of what is or can constitute illegal content, and how we judge it. It is useful to hear again from the master about how you do it in practice. I cannot imagine being in a room of French lawyers and experts and retaining my sanity, let alone making decisions that affect the ability of people to carry on, but the noble Lord did it; he is still here and lives to tell the tale—bearded or otherwise.

The later amendments, particularly from the noble Lord, Lord Clement-Jones, are taking us round in a circle towards the process by which Ofcom will exercise the powers that it is going to get in this area. These are probably worth another debate on their own, and maybe it will come up in a different form, because—I think the noble Baroness, Lady Stowell, made this point as well—there is a problem in having an independent regulator that is also the go-to function for getting advice on how others have to make decisions that are theirs to rule on at the end if they go wrong. That is a complicated way of saying that we may be overloading Ofcom if we also expect it to provide a reservoir of advice on how you deal with the issues that the Bill puts firmly on the companies—I agree that this is a problem that we do not really have an answer to.

My amendments were largely overtaken by the Government’s amendments, but the main one I want to talk about was Amendment 272. I am sorry that the noble Baroness, Lady Morgan, is not here, because her expertise is in an area that I want to talk about, which is fraud—cyber fraud in particular—and how that is going to be brought into the Bill. The issue, which I think has been raised by Which?, but a number of other people have also written to us about it, is that the Bill in Clauses 170 and 171 is trying to establish how a platform should identify illegal content in relation to fraud—but it is quite prescriptive. In particular, it goes into some detail which I will leave for the Minister to respond to, but uniquely it sets out a specific way for gathering information to determine whether content is illegal in this area, although it may have applicability in other areas.

One of the points that have to be taken into account is whether the platform is using human moderators, automated systems or a combination of the two. I am not quite sure why that is there in the Bill; that is really the basis for the tabling of our amendments. Clearly, one would hope that the end result is whether or not illegality has taken place, not how that information has been gathered. If one must make concessions to the process of law because a judgment is made that, because it is automated, it is in some way not as valid as if it had been done by a human moderator, there seems to be a whole world there that we should not be going into. I certainly hope that that is not going to be the case if we are talking about illegality concerning children or other vulnerable people, but that is how the Bill reads at present; I wonder whether the Minister can comment on that.

There is a risk of consumers being harmed here. The figures on fraud in the United Kingdom are extraordinary; the fact that it is not the top priority for everybody, let alone the Government, is extraordinary. It is something like the equivalent of consumers being scammed at the rate of around £7.5 billion per year. A number of awful types of scamming have emerged only because of the internet and social media. They create huge problems of anxiety and emotional distress, with lots of medical care and other things tied in if you want to work out the total bill. So we have a real problem here that we need to settle. It is great that it is in the Bill, but it would be a pity if the movement towards trying to resolve it is in any way infringed on by there being imperfect instructions in the Bill. I wonder whether the Minister would be prepared to respond to that; I would be happy to discuss it with him later, if that is possible.

As a whole, this is an interesting question as we move away from what a crime is towards how people judge how to deal with what they think is a crime but may not be. The noble Lord, Lord Allan, commented on how to do it in practice but one hopes that any initial problems will be overcome as we move forward and people become more experienced with this.

When the Joint Committee considered this issue, we spent a long time talking about why we were concerned about having certainty on the legal prescription in the Bill; that is why we were very much against the idea of “legal but harmful” because it seemed too subjective and too subject to difficulties. Out of that came another thought, which answers the point made by the noble Baroness, Lady Stowell: so much of this is about fine judgments on certain things that are there in stone and that you can work to but you then have to interpret them.

There is a role for Parliament here, I think; we will come on to this in later amendments but, if there is a debate to be had on this, let us not forget the points that have been made here today. If we are going to think again about Ofcom’s activity in practice, that is the sort of thing that either a Joint Committee or Select Committees of the two Houses could easily take on board as an issue that needs to be reflected on, with advice given to Parliament about how it might be taken forward. This might be the answer in the medium term.

In the short term, let us work to the Bill and make sure that it works. Let us learn from the experience but let us then take time out to reflect on it; that would be my recommendation but, obviously, that will be subject to the situation after we finish the Bill. I look forward to hearing the Minister’s response.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, as well as throwing up some interesting questions of law, this debate has provoked some interesting tongue-twisters. The noble Lord, Lord Allan of Hallam, offered a prize to the first person to pronounce the Netzwerkdurchsetzungsgesetz; I shall claim my prize in our debate on a later group when inviting him to withdraw his amendment.

[Lord Stevenson of Balmacara (Lab)]

A clean shirt, perhaps?

[Lord Parkinson of Whitley Bay (Con)]

Yes, that would be welcome.

--- Later in debate ---

[Lord Stevenson of Balmacara (Lab)]

My Lords, over the last few hours I have praised us for having developed a style of discussion and debate that is certainly relatively new and not often seen in the House, where we have tried to reach out to each other and find common ground. That was not a problem in this last group of just over an hour; I think we are united around the themes that were so brilliantly introduced in a very concise and well-balanced speech by the noble Baroness, Lady Kidron, who has been a leading and inspirational force behind this activity for so long.

Although different voices have come in at different times and asked questions that still need to be answered, I sense that we have reached a point in our thinking, if not in our actual debates, where we need a plan. I too reached this point; that was exactly the motivation I had in tabling Amendment 1, which was discussed on the first day. Fine as the Bill is—it is a very impressive piece of work in every way—it lacks what we need as a Parliament to convince others that we have understood the issues and have the answers to their questions about what this Government, or this country as a whole, are going to do about this tsunami of difference, which has arrived in the wake of the social media companies and search engines, in the way we do our business and live our lives these days. There is consensus, but it is slightly different to the consensus we had in earlier debates, where we were reassuring ourselves about the issues we were talking about but were not reaching out to the Government to change anything so much as being happy that we were speaking the same language and that they were in the same place as we are gradually coming to as a group, in a way.

Just before we came back in after the lunch break, I happened to talk to the noble Lord, Lord Grade, who is the chair of Ofcom and is listening to most of our debates and discussions when his other duties allow. I asked him what he thought about it, and he said that it was fascinating for him to recognise the level of expertise and knowledge that was growing up in the House, and that it would be a useful resource for Ofcom in the future. He was very impressed by the way in which everyone was engaging and not getting stuck in the niceties of the legislation, which he admitted he was experiencing himself. I say that softly; I do not want to embarrass him in any way because he is an honourable man. However, the point he makes is really important.

I say to the Minister that I do not think we are very far apart on this. He knows that, because we have discussed it at some length over the last six to eight weeks. What I think he should take away from this debate is that this is a point where a decision has to be taken about whether the Government are going to go with the consensus view being expressed here and put deliberately into the Bill a repetitive statement, but one that is clear and unambiguous, about the intention behind the Government’s reason for bringing forward the Bill and for us, the Opposition and other Members of this House, supporting it, which is that we want a safe internet for our children. The way we are going to do that is by having in place, up front and clearly in one place, the things that matter when the regulatory structure sits in place and has to deal with the world as it is, of companies with business plans and business models that are at variance with what we think should be happening and that we know are destroying the lives of people we love and the future of our country—our children—in a way that is quite unacceptable when you analyse it down to its last detail.

It is not a question of saying back to us across the Dispatch Box—I know he wants to but I hope he will not—“Everything that you have said is in the Bill; we don’t need to go down this route, we don’t need another piece of writing that says it all”. I want him to forget that and say that actually it will be worth it, because we will have written something very special for the world to look at and admire. It is probably not in its perfect form yet, but that is what the Government can do: take a rough and ready potential diamond, polish it, chamfer it, and bring it back and set it in a diadem we would all be proud to wear—Coronations excepted—so that we can say, “Look, we have done the dirty work here. We’ve been right down to the bottom and thought about it. We’ve looked at stuff that we never thought in our lives we would ever want to see and survived”.

I shake at some of the material we were shown that Molly Russell was looking at. But I never want to be in a situation where I will have to say to my children and grandchildren, “We had the chance to get this right and we relied on a wonderful piece of work called the Online Safety Act 2023; you will find it in there, but it is going to take you several weeks and a lot of mental harm and difficulty to understand what it means”.

So, let us make it right. Let us not just say “It’ll be alright on the night”. Let us have it there. It is almost right but, as my noble friend Lord Knight said, it needs to be patched back into what is already in the Bill. Somebody needs to look at it and say, “What, out of that, will work as a statement to the world that we care about our kids in a way that will really make a difference?” I warn the Minister that, although I said at Second Reading that I wanted to see this Bill on the statute book as quickly as possible, I will not accept a situation where we do not have more on this issue.

[Lord Parkinson of Whitley Bay (Con)]

I am grateful to all noble Lords who have spoken on this group and for the clarity with which the noble Lord, Lord Stevenson, has concluded his remarks.

Amendments 20, 74, 93 and 123, tabled by the noble Baroness, Lady Kidron, would mean a significant revising of the Bill’s approach to content that is harmful to children. It would set a new schedule of harmful content and risk to children—the 4 Cs—on the face of the Bill and revise the criteria for user-to-user and search services carrying out child safety risk assessments.

I start by thanking the noble Baroness publicly—I have done so privately in our discussions—for her extensive engagement with the Government on these issues over recent weeks, along with my noble friends Lord Bethell and Lady Harding of Winscombe. I apologise that it has involved the noble Baroness, Lady Harding, missing her stop on the train. A previous discussion we had also very nearly delayed her mounting a horse, so I can tell your Lordships how she has devoted hours to this—as they all have over recent weeks. I would like to acknowledge their campaigning and the work of all organisations that the noble Baroness, Lady Kidron, listed at the start of her speech, as well as the families of people such as Olly Stephens and the many others that the right reverend Prelate the Bishop of Oxford mentioned.

I also reassure your Lordships that, in developing this legislation, the Government carried out extensive research and engagement with a wide range of interested parties. That included reviewing international best practice. We want this to be world-leading legislation, including the four Cs framework on the online risks of harm to children. The Government share the objectives that all noble Lords have echoed in making sure that children are protected from harm online. I was grateful to the noble Baroness, Lady Benjamin, for echoing the remarks I made earlier in Committee on this. I am glad we are on the same page, even if we are still looking at points of detail, as we should be.

As the noble Baroness, Lady Kidron, knows, it is the Government’s considered opinion that the Bill’s provisions already deliver these objectives. I know that she remains to be convinced, but I am grateful to her for our continuing discussions on that point, and for continuing to kick the tyres on this to make sure that this is indeed legislation of which we can be proud.

It is also clear that there is broad agreement across the House that the Bill should tackle harmful content to children such as content that promotes eating disorders, illegal behaviour such as grooming and risk factors for harm such as the method by which content is disseminated, and the frequency of alerts. I am pleased to be able to put on record that the Bill as drafted already does this in the Government’s opinion, and reflects the principles of the four Cs framework, covering each of those: content, conduct, contact and commercial or contract risks to children.

First, it is important to understand how the Bill defines content, because that question of definition has been a confusing factor in some of the discussions hitherto. When we talk in general terms about content, we mean the substance of a message. This has been the source of some confusion. The Bill defines “content”, for the purposes of this legislation, in Clause 207 extremely broadly as

“anything communicated by means of an internet service”.

Under this definition, in essence, all user communication and activity, including recommendations by an algorithm, interactions in the metaverse, live streams, and so on, is facilitated by “content”. So, for example, unwanted and inappropriate contact from an adult to a child would be treated by the Bill as content harm. The distinctions that the four Cs make between content, conduct and contact risks is therefore not necessary. For the purposes of the Bill, they are all content risks.

Secondly, I know that there have been concerns about whether the specific risks highlighted in the new schedule will be addressed by the Bill.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Committee stage
Thursday 27th April 2023 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

All the phrases used in the Bill are subject to the usual scrutiny through the judicial process—that is why we debate them now and think about their implications—but of course they can, and I am sure will, be tested in the usual legal ways. Once a company has developed a new technology that meets minimum standards of accuracy, Ofcom may require its use but not before considering matters including the impact on user privacy, as I have set out. The Bill does not specify which tools are likely to be required, as we cannot pre-empt Ofcom’s evidence-based and case-by-case assessment.

Amendment 285 intends to clarify that social media platforms will not be required to undertake general monitoring of the activity of their users. I agree that the protection of privacy is of utmost importance. I want to reassure noble Lords, in particular my noble friend Lady Stowell of Beeston, who asked about it, that the Bill does not require general monitoring of all content. The clear and strong safeguards for privacy will ensure that users’ rights are protected.

Setting out clear and specific safeguards will be more effective in protecting users’ privacy than adopting the approach set out in Amendment 285. Ofcom must consider a number of matters, including privacy, before it can require the use of proactive technology. The government amendments in this group, Amendments 290A to 290G, further clarify that technology which identifies words, phrases or images that indicate harm is subject to all of these restrictions. General monitoring is not a clearly defined concept—a point made just now by my noble friend Lord Kamall. It is used in EU law but is not defined clearly in that, and it is not a concept in UK law. This lack of clarity could create uncertainty that some technology companies might attempt to exploit in order to avoid taking necessary and proportionate steps to protect their users. That is why we resist Amendment 285.

[Lord Stevenson of Balmacara (Lab)]

I understand the point the Minister is making, but it is absolutely crystal clear that, whatever phrase is used, the sensibility is quite clear that the Government are saying on record, at the Dispatch Box, that the Bill can in no way be read as requiring anybody to provide a view into private messaging or encrypted messaging unless there is good legal cause to suspect criminality. That is a point that the noble Baroness, Lady Stowell, made very clearly. One may not like the phrasing used in other legislatures, but could we find a form of words that will make it clear that those who are operating in this legal territory are absolutely certain about where they stand on that?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I want to give clear reassurance that the Bill does not require general monitoring of all content. We have clear and strong safeguards for privacy in the Bill to ensure that users’ rights are protected. I set out the concerns about use of the phrase “general monitoring”. I hope that provides clarity, but I may have missed the noble Lord’s point. The brief answer to the question I think he was asking is yes.

[Lord Stevenson of Balmacara (Lab)]

Let the record stand clear: yes. It was the slight equivocation around how the Minister approached and left that point that I was worried about, and that people might seek to use that later. Words from the Dispatch Box are never absolute and they are never meant to be, but the fact that they have been said is important. I am sure that everybody understands that point, and the Minister did say “yes” to my question.

[Lord Parkinson of Whitley Bay (Con)]

I did, and I am happy to say it again: yes.

[Lord Parkinson of Whitley Bay (Con)]

The points the noble Baroness has just made bring me neatly to what I was about to say in relation to the question raised earlier by the noble Lord, Lord Knight of Weymouth. But first, I would say that Ofcom as a public body is subject to public law principles already, so those apply in this case.

The noble Lord, Lord Knight, asked about virtual private networks and the risk of displacing people on to VPNs or other similar alternatives. That is a point worth noting, not just in this group but as we consider all these amendments, particularly when we talk later on about age verification, pornography and so on. Services will need to think about how safety measures could be circumvented and take steps to prevent that, because they need to mitigate risk effectively. There may also be a role in enforcement action, too; Ofcom will be able to apply to the courts to require these services where appropriate to apply business disruption measures. We should certainly be mindful of the incentives for people to do that, and the example the noble Lord, Lord Knight, gave earlier is a useful lesson in the old adage “Caveat emptor” when looking at some of these providers.

I want to say a little bit about Amendments 205A and 290H in my name. Given the scale of child sexual abuse and exploitation that takes place online, and the reprehensible nature of these crimes, it is important that Ofcom has effective powers to require companies to tackle it. This brings me to these government amendments, which make small changes to the powers in Clause 110 to ensure that they are effective. I will focus particularly, in the first instance, on Amendment 290H, which ensures that Ofcom considers whether a service has features that allow content to be shared widely via another service when deciding whether content has been communicated publicly or privately, including for the purposes of issuing a notice. This addresses an issue highlighted by the Independent Reviewer of Terrorism Legislation, Jonathan Hall, and Professor Stuart Macdonald in a recent paper. The separate, technical amendment, Amendment 205A, clarifies that Clause 110(7) refers only to a notice on a user-to-user service.

Amendment 190 in the name of the noble Lord, Lord Clement-Jones, seeks to introduce a new privacy duty on Ofcom when considering whether to use any of its powers. The extensive privacy safeguards that I have already set out, along with Ofcom’s human rights obligations, would make this amendment unnecessary. Ofcom must also explicitly consult persons whom it considers to have expertise in the enforcement of the criminal law and the protection of national security, which is relevant to online safety matters in the course of preparing its draft codes. This may include the integrity and security of internet services where relevant.

Amendments 202 and 206, in the name of the noble Lord, Lord Stevenson of Balmacara, and Amendments 207, 208, 244, 246, 247, 248, 249 and 250 in the name of the noble Lord, Lord Clement-Jones, all seek to deliver privacy safeguards to notices issued under Clause 110 through additional review and appeals processes. There are already strong safeguards concerning this power. As part of the warning notice process, companies will be able to make representations to Ofcom which it is bound to consider before issuing a notice. Ofcom must also review any notice before the end of the period for which it has effect.

Amendment 202 proposes mirroring the safeguards of the investigatory powers Act when issuing notices to encrypted messaging services under this power. First, this would be inappropriate, because the powers in the investigatory powers Act serve different purposes from those in this Bill. The different legal safeguards in the investigatory powers Act reflect the potential intrusion by the state into an individual’s private communications; that is not the case with this Bill, which does not grant investigatory powers to state bodies, such as the ability to intercept private communications. Secondly, making a reference to encryption would be—

[Lord Stevenson of Balmacara (Lab)]

Is that right? I do not need a yes or no answer. It was rhetorical; I am just trying to frame the right question. The Minister is making a very strong point about the difference between RIPA requirements and those that might be brought in under this Bill. But it does not really get to the bottom of the questions we were asking. In this situation, whatever the exact analogy between the two systems is, it is clear that Ofcom is marking its own homework—which is fair enough, as there are representations, but it is not getting external advice or seeking judicial approval.

The Minister’s point was that that was okay because it was private companies involved. But we are saying here that these would be criminal offences taking place and therefore there is bound to be interest from the police and other agencies, including anti-terrorism agencies. It is clearly similar to the RIPA arrangements, so he could he just revisit that?

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Committee stage
Tuesday 25th April 2023 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

The Minister just said something that was material to this debate. He said that Ofcom has existing powers to prevent app stores from providing material that would have caused problems for the services to which they allow access. Can he confirm that?

[Lord Parkinson of Whitley Bay (Con)]

Perhaps the noble Lord could clarify his question; I was too busy finishing my answer to the noble Lord, Lord Knight.

[Lord Stevenson of Balmacara (Lab)]

It is a continuation of the point raised by the noble Baroness, Lady Harding, and it seems that it will go part of the way towards resolving the differences that remain between the Minister and the noble Baroness, which I hope can be bridged. Let me put it this way: is it the case that Ofcom either now has powers or will have powers, as a result of the Bill, to require app stores to stop supplying children with material that is deemed in breach of the law? That may be the basis for understanding how you can get through this. Is that right?

[Lord Parkinson of Whitley Bay (Con)]

Services already have to comply with their duties to keep children safe. If they do not comply, Ofcom has powers of enforcement set out, which require app stores to remove applications that are harmful to children. We think this already addresses the point, but I am happy to continue discussing it offline with the noble Lord, my noble friend and others who want to explore how. As I say, we think this is already covered. A more general duty here would risk distracting from Ofcom’s existing priorities.

--- Later in debate ---

[Lord Stevenson of Balmacara (Lab)]

Like others, I had prepared quite extensive notes to respond to what I thought the noble Lord was going to say about his amendments in this group, and I have not been able to find anything left that I can use, so I am going to have to extemporise slightly. I think it is very helpful to have a little non-focused discussion about what we are about to talk about in terms of age, because there is a snare and a delusion in quite a lot of it. I was put in mind of that in the discussions on the Digital Economy Act, which of course precedes the Minister but is certainly still alive in our thinking: in fact, we were talking about it earlier today.

The problem I see is that we have to find a way of squaring two quite different approaches. One is to prevent those who should not be able to see material, because it is illegal for them to see it. The other is to find a way of ensuring that we do not end up with an age-gated internet, which I am grateful to find that we are all, I think, agreed about: that is very good to know.

Age is very tricky, as we have heard, and it is not the only consideration we have to bear in mind in wondering whether people should be able to gain access to areas of the internet which we know will be bad and difficult for them. That leads us, of course, to the question about legal but harmful, now resolved—or is it? We are going to have this debate about age assurance and what it is. What is age verification? How do they differ? How does it matter? Is 18 a fixed and final point at which we are going to say that childhood ends and adulthood begins, and therefore one is open for everything? It is exactly the point made earlier about how to care for those who should not be exposed to material which, although legal for them by a number called age, is not appropriate for them in any of the circumstances which, clinically, we might want to bring to bear.

I do not think we are going to resolve these issues today—I hope not. We are going to talk about them for ever, but at this stage I think we still need a bit of thinking outside a box which says that age is the answer to a lot of the problems we have. I do not think it is, but whether the Bill is going to carry that forward I have my doubts. How we get that to the next stage, I do not know, but I am looking forward to hearing the Minister’s comments on it.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I agree that this has been a rather unfortunate grouping and has led to a slightly strange debate. I apologise if it is the result of advice given to my noble friend. I know there has been some degrouping as well, which has led to slightly odd combinations today. However, as promised, I shall say a bit more about Wikipedia in relation to my noble friend’s Amendments 10 and 11.

The effect of these amendments would be that moderation actions carried out by users—in other words, community moderation of user-to-user and search services —would not be in scope of the Bill. The Government support the use of effective user or community moderation by services where this is appropriate for the service in question. As I said on the previous group, as demonstrated by services such as Wikipedia, this can be a valuable and effective means of moderating content and sharing information. That is why the Bill does not impose a one-size-fits-all requirement on services, but instead allows services to adopt their own approaches to compliance, so long as these are effective. The noble Lord, Lord Allan of Hallam, dwelt on this. I should be clear that duties will not be imposed on individual community moderators; the duties are on platforms to tackle illegal content and protect children. Platforms can achieve this through, among other things, centralised or community moderation. Ultimately, however, it is they who are responsible for ensuring compliance and it is platforms, not community moderators, who will face enforcement action if they fail to do so.

Online Safety Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Committee stage
Wednesday 19th April 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)]

My Lords, let me start by saying how saying how pleased I, too, am that we are now in Committee. I thank all noble Lords for giving up their time to attend the technical briefings that officials in my department and I have held since Second Reading and for the collaborative and constructive nature of their contributions in those discussions.

In particular, not least because today is his birthday, I pay tribute to the noble Lord, Lord Stevenson of Balmacara, for his tireless work on the Bill—from his involvement in its pre-legislative scrutiny to his recall to the Front Bench in order to see the job through. We are grateful for his diligence and, if I may say so, the constructive and collaborative way in which he has gone about it. He was right to pay tribute both to my noble friend Lord Gilbert of Panteg, who chaired the Joint Committee, and to the committee’s other members, including all the other signatories to this amendment. The Bill is a better one for their work, and I repeat my thanks to them for it. In that spirit, I am grateful to the noble Lord for bringing forward this philosophical opening amendment. As noble Lords have said, it is a helpful place for us to start and refocus our thoughts as we begin our line-by-line scrutiny of this Bill.

Although I agree with the noble Lord’s broad description of his amendment’s objectives, I am happy to respond to the challenge that lies behind it and put the objectives of this important legislation clearly on the record at the outset of our scrutiny. The Online Safety Bill seeks to bring about a significant change in online safety. The main purposes of the Bill are: to give the highest levels of protection to children; to protect users of all ages from being exposed to illegal content; to ensure that companies’ approach focuses on proactive risk management and safety by design; to protect people who face disproportionate harm online including, for instance, because of their sex or their ethnicity or because they are disabled; to maintain robust protections for freedom of expression and privacy; and to ensure that services are transparent and accountable.

The Bill will require companies to take stringent measures to tackle illegal content and protect children, with the highest protections in the Bill devoted to protecting children; as the noble Baroness, Lady Benjamin, my noble friend Lord Cormack and others have again reminded us today, that is paramount. Children’s safety is prioritised throughout this Bill. Not only will children be protected from illegal content through its illegal content duties but its child safety duties add an additional layer of protection so that children are protected from harmful or inappropriate content such as grooming, pornography and bullying. I look forward to contributions from the noble Baroness, Lady Kidron, and others who will, I know, make sure that our debates are properly focused on that.

Through their duties of care, all platforms will be required proactively to identify and manage risk factors associated with their services in order to ensure both that users do not encounter illegal content and that children are protected from harmful content. To achieve this, they will need to design their services to reduce the risk of harmful content or activity occurring and take swift action if it does.

Regulated services will need to prioritise responding to online content and activity that present the highest risk of harm to users, including where this is linked to something classified as a protected characteristic under the terms of the Equality Act 2010. This will ensure that platforms protect users who are disproportionately affected by online abuse—for example, women and girls. When undertaking child safety and illegal content risk assessments, providers must consider whether certain people face a greater risk of harm online and ensure that those risks are addressed and mitigated.

The Bill will place duties relating to freedom of expression and privacy on both Ofcom and all in-scope companies. Those companies will have to consider and implement safeguards for freedom of expression when fulfilling their duties. Ofcom will need to carry out its new duties in a way that protects freedom of expression. The largest services will also have specific duties to protect democratic and journalistic content.

Ensuring that services are transparent about the risks on their services and the actions they are taking to address them is integral to this Bill. User-to-user services must set out in their terms of service how they are complying with their illegal and child safety duties. Search services must do the same in public statements. In addition, government amendments that we tabled yesterday will require the biggest platforms to publish summaries of their illegal and their child safety risk assessments, increasing transparency and accountability, and Ofcom will have a power to require information from companies to assess their compliance with providers’ duties.

Finally, the Bill will also increase transparency and accountability relating to platforms with the greatest influence over public discourse. They will be required to ensure that their terms of service are clear and properly enforced. Users will be able to hold platforms accountable if they fail to enforce those terms.

The noble Baroness, Lady Kidron, asked me to say which of the proposed new paragraphs (a) to (g), to be inserted by Amendment 1, are not the objectives of this Bill. Paragraph (a) sets out that the Bill must ensure that services

“do not endanger public health or national security”.

The Bill will certainly have a positive impact on national security, and a core objective of the Bill is to ensure that platforms are not used to facilitate terrorism. Ofcom will issue a stand-alone code on terrorism, setting out how companies can reduce the risk of their services being used to facilitate terrorist offences, and remove such content swiftly if it appears. Companies will also need to tackle the new foreign interference offence as a priority offence. This will ensure that the Bill captures state-sponsored disinformation, which is of most concern—that is, attempts by foreign state actors to manipulate information to interfere in our society and undermine our democratic, political and legal processes.

The Bill will also have a positive impact on public health but I must respectfully say that that is not a primary objective of the legislation. In circumstances where there is a significant threat to public health, the Bill already provides powers for the Secretary of State both to require Ofcom to prioritise specified objectives when carrying out its media literacy activity and to require companies to report on the action they are taking to address the threat. Although the Bill may lead to additional improvements—I am sure that we all want to see them—for instance, by increasing transparency about platforms’ terms of service relating to public health issues, making this a primary objective on a par with the others mentioned in the noble Lord’s amendment risks making the Bill much broader and more unmanageable. It is also extremely challenging to prohibit such content, where it is viewed by adults, without inadvertently capturing useful health advice or legitimate debate and undermining the fundamental objective of protecting freedom of expression online—a point to which I am sure we will return.

The noble Lord’s amendment therefore reiterates many objectives that are interwoven throughout the legislation. I am happy to say again on the record that I agree with the general aims it proposes, but I must say that accepting it would be more difficult than the noble Lord and others who have spoken to it have set out. Accepting this amendment, or one like it, would create legal uncertainty. I have discussed with the officials sitting in the Box—the noble Baroness, Lady Chakrabarti, rightly paid tribute to them—the ways in which such a purposive statement, as the noble Lord suggests, could be made; we discussed it between Second Reading and now.

I appreciate the care and thought with which the noble Lord has gone about this—mindful of international good practice in legislation and through discussion with the Public Bill Office and others, to whom he rightly paid tribute—but any deviation from the substantive provisions of the Bill and the injection of new terminology risk creating uncertainty about the proper interpretation and application of those provisions. We have heard that again today; for example, the noble Baroness, Lady Fox, said that she was not clear what the meaning of certain words may be while my noble friend Lady Stowell made a plea for simplicity in legislation. The noble Lord, Lord Griffiths, also gave an eloquent exposition of the lexicographical befuddlement that can ensue when new words are added. All pointed to some confusion; indeed, there have been areas of disagreement even in what I am sure the noble Lord, Lord Stevenson, thinks was a very consensual summary of the purposes of the Bill.

That legal uncertainty could provide the basis for an increased number of judicial reviews or challenges to the decisions taken under the Bill and its framework, creating significant obstacles to the swift and effective implementation of the new regulatory framework, which I know is not something that he or other noble Lords would want. As noble Lords have noted, this is a complicated Bill, but adding further statements and new terminology to it, for however laudable a reason, risks adding to that complication, which can only benefit those with, as the noble Baroness, Lady Kidron, put it, the deepest pockets.

However, lest he think that I and the Government have not listened to his pleas or those of the Joint Committee, I highlight, as my noble friend Lady Stowell did, that the Joint Committee’s original recommendation was that these objectives

“should be for Ofcom”.

The Government took that up in Schedule 4 to the Bill, and in Clause 82(4), which set out objectives for the codes and for Ofcom respectively. At Clause 82(4) the noble Lord will see the reference to

“the risk of harm to citizens presented by content on regulated services”

and

“the need for a higher level of protection for children than for adults”.

I agree with the noble Baroness, Lady Chakrabarti, that it is not impossible to add purposive statements to Bills and nor is it unprecedented. I echo her tribute to the officials and lawyers in government who have worked on this Bill and given considerable thought to it. She has had the benefit of sharing their experience and the difficulties of writing tightly worded legislation. In different moments of her career, she has also had the benefit of picking at the loose threads in legislation and poking at the holes in it. That is the purpose of lawyers who question the thoroughness with which we have all done our work. I will not call them “pesky lawyers”, as she did—but I did hear her say it. I understand the point that she was making in anticipation but reassure her that she has not pre-empted the points that I was going to make.

To the layperson, legislation is difficult to understand, which is why we publish Explanatory Notes, on which the noble Baroness and others may have had experience of working before. I encourage noble Lords, not just today but as we go through our deliberations, to consult those as well. I hope that noble Lords will agree that they are more easily understood, but if they do not do what they say and provide explanation, I will be very willing to listen to their thoughts on it.

So, while I am not going to give the noble Lord, Lord Stevenson, the birthday present of accepting his amendment, I hope that the clear statement that I gave at the outset from this Dispatch Box, which is purposive as well, about the objectives of the Bill, and my outline of how it tries to achieve them, is a sufficient public statement of our intent, and that it achieves what I hope he was intending to get on the record today. I invite him to withdraw his amendment.

[Lord Stevenson of Balmacara (Lab)]

Well, my Lords, it has been a very good debate, and we should be grateful for that. In some senses, I should bank that; we have got ourselves off to a good start for the subsequent debates and discussions that we will have on the nearly 310 amendments that we must get through before the end of the process that we have set out on.

However, let us pause for a second. I very much appreciated the response, not least because it was very sharp and very focused on the amendment. It would have been tempting to go wider and wider, and I am sure that the Minister had that in mind at some point, but he has not done that. The first substantial point that he made seemed to be a one-pager about what this Bill is about. Suitably edited and brought down to manageable size, it would fit quite well into the Bill. I am therefore a bit puzzled as to why he cannot make the jump, intellectually or otherwise, from having that written for him and presumably working on it late at night with candles so that it was perfect—because it was pretty good; I will read it very carefully in Hansard, but it seemed to say everything that I wanted to say and covered most of the points that everybody else thought of to say, in a way that would provide clarity for those seeking it.

The issue we are left with was touched on by the noble Baroness, Lady Stowell, in her very perceptive remarks. Have we got this pointing in the right direction? We should think about it as a way for the Government to get out of this slightly ridiculous shorthand of the safest place to be online, to a statement to themselves about what they are trying to do, rather than an instruction to Ofcom—because that is where it gets difficult and causes problems with the later stages. This is really Parliament and government agreeing to say this, in print, rather than just through reading Hansard. That then reaches back to where my noble friend Lady Chakrabarti is, and it helps the noble Baroness, Lady Harding, with her very good point, that this will not work if people do not even bother to get through the first page.

Channel 4

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Wednesday 11th January 2023 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, we wholeheartedly welcome the Secretary of State’s decision not to privatise Channel 4. The British public service broadcasting ecosystem is unique and has been built up over many decades. At a time when the market in which it operates has been changing radically and is continuing to change, we should be very careful indeed about making major, radical adjustments that would threaten our successful cultural economy.

I have three questions for the Minister. Can he explain what aspects of the evidence that led the former Secretary of State to the original decision have turned out to be so flaky on review as to engender such an extraordinary policy U-turn? The Statement refers to introducing “updated governance structures” for Channel 4. Given that there is to be no change to the ownership of Channel 4, can he say whether that refers to the role that government currently plays, the board, the executive structure or all of the above? Can he confirm that the proposals will require changes to primary legislation? Finally, does he agree that changing the publisher broadcaster status, enshrined as it is in statute, would be a major change not only for the channel but for the independent production sector and would materially affect the public broadcasting sector ecosystem? I look forward to his comments.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)]

I welcome the noble Lord back to his position on the Opposition Front Bench and wish noble Lords a happy new year. My right honourable friend set out in another place the rationale for her decision: as she said, she looked at the business case and the evidence for doing so. She was very clear, however, that, while not pursuing at this time the opportunity of a sale of Channel 4, doing nothing was not an option either. As the noble Lord rightly said, it operates in a rapidly changing media landscape and, as part of our in-depth analysis, we have established that its long-term sustainability must be addressed. Channel 4 itself has acknowledged that in its own strategy document The Next Episode. The package that my right honourable friend set out addresses that, including through some legislative change which we will be taking forward in the media Bill.

On the publisher broadcaster restriction, the Government will make changes via the Bill to give Channel 4 the freedom to make and own some of its own content—a freedom it does not currently have. That will open up a range of options for it to grow its income, which is important for its sustainability. As we have seen, Channel 4 has done a fantastic job over the last four decades in doing what it was set up to do by the Conservative Government in the 1980s: to stimulate independent production. The cost of that is going up because of a number of competitors, and I am sure we are all interested in ensuring that it has the resources it needs to do that.

Channel 4: Annual Report

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Thursday 21st July 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My noble friend is right. I have been looking through the annual reports of many arm’s-length bodies that it is my responsibility to lay before Parliament. The Government are entitled to make representations to Channel 4 as its current owner. Of course, if it were privately owned, we would not have that role. We cannot force it to change things but we are perfectly entitled to disagree. In this instance, Channel 4 laid the annual report it had originally drafted.

[Lord Stevenson of Balmacara (Lab)]

My Lords, Parliament was involved in the setting up of Channel 4. Indeed, it was an Act of Parliament that created it. In that sense, we in this House and the other House have an interest in the arrangements under which Channel 4 is supervised. The Minister did not give a very explicit Answer to the original Question from my noble friend. Could he sketch out for us, very briefly and perhaps later in writing, what the points were that the Government wished to raise with Channel 4, so that we are better informed about the debate?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am happy to say that we wrote to Channel 4 on 9 June, three weeks, I believe, after receiving the draft copy of the report, outlining our concerns relating to some of the language in the report, which we believed to be at odds with commitments, given to the department at official and ministerial level, to work collaboratively on this issue of its future ownership. As I say, we may have disagreements with some figures at Channel 4 about that, but the Government’s intention is to ensure that Channel 4 has a secure future and the access to capital it needs to continue to entertain and inform audiences in the decades to come.

Channel 4 Privatisation

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Tuesday 5th April 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the Government recognise the huge success that Channel 4 has been over the last 40 years. We want to make sure that it is fit for the future. Sometimes people who are close to organisations can be restricted in their thinking because of it. A responsible Government are looking to the next 40 years and the rapidly changing media landscape to ensure that Channel 4 has access to private capital to borrow, invest and continue to do what it is rightly renowned for.

[Lord Stevenson of Balmacara (Lab)]

My Lords, the Minister mentioned a long-awaited and much-needed White Paper. This is a very complicated and difficult issue which he has attempted to unscramble, but we will need a White Paper to see behind what he is trying to tell us today. Will the sale proceeds—which are highly contingent on a number of very key policy decisions that are yet to be taken—be dealt with in the White Paper? This is so that we will know about the new licence required for Channel 4, the prominence issues affecting its online and offline support, and the question of advertising he mentioned—which is buoyant beyond all measure at the moment. It is very difficult to see why it needs to suddenly be brought forward. These matters all need to be considered in the context of what the Government plan to do with the BBC and what they plan for other areas. We need a White Paper. Can he give us some timings?

[Lord Parkinson of Whitley Bay (Con)]

The noble Lord is absolutely right; there are many issues of detail which of course we cannot cover in a 15-minute exchange on a Private Notice Question. The White Paper will set out more detail and legislation will be brought forward to enable both Houses to have their say on all those points of detail. It is our intention to publish the White Paper in the coming weeks.

Young Audiences Content Fund: Replacement

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Thursday 17th March 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the Young Audiences Content Fund was a pilot. It is still open. It closes at the end of this month, at the end of its three-year period. It was a pilot to test a new way of financing public service television. At the end of the pilot, a full evaluation will take place to determine its impact. The noble Baroness has anticipated some of the things that might emerge from that evaluation, but I hope she will agree that it is important that it be evaluated. She mentions the tax relief that we introduced. That was aimed specifically at children’s TV, and since 2015 has directly supported 543 projects, delivering over £623 million of expenditure in children’s television production.

[Lord Stevenson of Balmacara (Lab)]

My Lords, the points made by the noble Baroness are well made and we support them wholeheartedly. I am grateful for the comments that the Minister has made but they do not really go far enough. More worryingly, this seems to be part of a pattern of activity and policy at DCMS—a pattern that I am sure this House will have noticed—including the issues of the future of Channel 4, the delay in securing provenance for programmes on widespread release, the BBC licence fee and charter arrangements, and regional news and journalism. The issues all seem to come up, suddenly get an announcement and then are withdrawn. Do we not need a White Paper looking more broadly at the wider context of the media, how we want it to progress in this country and the need for it to mesh more closely with a modern version of public service broadcasting?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, we are looking at that wider context. The Government have committed to ensuring that viewers and listeners benefit from a modern system of public service broadcasting that remains relevant and which continues to meet the needs of audiences, now and in the future. That is why we announced the strategic review of public service broadcasting so that we can do that. The evaluation of this fund will feed into that wider strategic review so that we can see the best way of delivering what everyone wants.

Universities: Compulsory Redundancies

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Monday 21st June 2021 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

I know that the noble Baroness’s noble friend, the noble Baroness, Lady Jones, is an archaeology graduate. As a history graduate myself, I certainly recognise the importance of the study of the past. The Government have been providing help to institutions through the ways that I have outlined a number of times and through the SURE fund for research—so we are assisting universities, particularly in light of the challenging circumstances of the past few months.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, we have a dual funding system, and, while the Minister is right to say that the institutions are notionally independent, the truth is that they can do only what they are funded for, in what has effectively become a market economy. Have the Government considered one part of the dual funding system—the payments that will need to be made to support the redundancies and closures in relation to research—and has the Minister talked to UKRI about that? In respect of the AHRC, can the Minister confirm that the funding for the important creative clusters programme is secure?

[Lord Parkinson of Whitley Bay (Con)]

During the last year, we provided support through the SURE fund to address the impact of the Covid pandemic. It will continue to be an important consideration in the next spending review and in our plans significantly to boost R&D funding. Through the Office for Students, we continue to monitor the financial stability of research in higher education, which is an important factor in the consideration of the balance of the dual funding that the noble Lord referred to.

Telecommunications Infrastructure (Leasehold Property) Bill

Debate between Lord Parkinson of Whitley Bay and Lord Stevenson of Balmacara

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 19th May 2020 Lords Chamber

[Lord Stevenson of Balmacara]

I will be brief as well—the Committee has heard enough from us already. As the noble Lord, Lord Clement-Jones, said, this is a probing amendment to see where the Government’s ambitions point. There does not seem to be any logic in the current drafting and the amendment is a good way to try to extend it, but there are other ways. If the Government, either now or at later stages, accept amendments that mean that all legal occupiers of a property and the operators themselves can also initiate Part 4A orders, we will not need this amendment.

I will use this time to ask a question that was raised in the discussion on an earlier amendment, as I did not get the answer from the Minister at the time it was raised. She may not have that information to hand and, if she does not, I will be happy for her to write. I think that we are all conscious that not everything in this Bill will achieve the promised land of the gigabit-compliant internet that we are all looking for, so other things need to happen, but they will not be addressed in other places. Perhaps the Minister could give us a tour d’horizon of them, if necessary in writing. How and when will we get the legislation for all new homes to have open-access fibre connections? Will there be a harmonised UK-wide regime for permitting street works to lay fibre? How will we ensure that fibre-builders can make use of the utilities infrastructure—for gas, water and electricity—to facilitate access? We need to know that these things are happening if we are to be confident that the Bill will achieve what it aims to do, so can the Minister write to me about them?

[Lord Parkinson of Whitley Bay]

I thank noble Lords for their brevity in outlining the purpose of this probing amendment. I shall try to be similarly brief in response.

I certainly welcome the intention behind this amendment—namely, to clarify which premises other than multiple-dwelling buildings such as blocks of flats might be in scope of the Bill and why. The decision initially to include only multiple-dwelling buildings is deliberate. It was informed by careful consideration of the evidence that was made available to us, not least through the consultation that was held before the Bill was drawn up and introduced. That evidence indicated that specifically this type of premises—multiple-dwelling buildings—most needed the sort of targeted intervention that is proposed in the Bill. We were not, by contrast, presented with compelling evidence for other types of property at this stage and certainly not enough to justify legislating at this point. However, we recognise that such evidence might emerge in time and we are mindful that office blocks or business parks, which the noble Lord, Lord Clement Jones, mentioned, could face similar issues. We continue to engage with providers and others about this.

The noble Lord, Lord Clement-Jones, asked how far our ambition stretches: as far as the evidence suggests. This is why we have included a clear power in the Bill for the Secretary of State to make regulations, should they be needed, to widen the scope of the Bill and make it apply to other premises of a specified description. That will allow the Secretary of State to legislate in a flexible and proportionate way, led by the evidence. This approach will allow the Government to continue to engage with interested parties, as well as to consider and balance the evidence that becomes available to us. Crucially, it will also help to guard against any unintended consequences that could arise from widening the scope of the Bill too quickly, before there is sufficient evidence to support doing so.

The noble Lord raised a point about new-build developments. The Government have set out plans to ensure that new-build homes in England are built with gigabit broadband by amending the 2010 building regulations to require developers of new-builds to install the infrastructure necessary to make them gigabit-capable. As we set out in our consultation response published on 17 March this year, the Building Act 1984 contains the necessary primary powers that would mandate the installation of gigabit broadband in new build developments. To include the new-build developments in the Bill in the way proposed by this amendment is therefore unnecessary, and could hamper the simple and proportionate approach we have set out in the consultation response.

I should add that, as housing is a devolved matter, the Government are also working closely with the devolved Administrations on this. I hope that I have been able to demonstrate that we have firm proposals in place to address the issues raised, and that the noble Lord will feel able to withdraw his amendment.