Online Safety Bill

Debate between Lord Russell of Liverpool and Viscount Camrose

Committee stage
Tuesday 16th May 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)]

My Lords, the amendments in this group are concerned with complaints mechanisms. I turn first to Amendment 56 from the noble Lord, Lord Stevenson of Balmacara, which proposes introducing a requirement on Ofcom to produce an annual review of the effectiveness and efficiency of platforms’ complaints procedures. Were this review to find that regulated services were not complying effectively with their complaints procedure duties, the proposed new clause would provide for Ofcom to establish an ombudsman to provide a dispute resolution service in relation to complaints.

While I am of course sympathetic to the aims of this amendment, the Government remain confident that service providers are best placed to respond to individual user complaints, as they will be able to take appropriate action promptly. This could include removing content, sanctioning offending users, reversing wrongful content removal or changing their systems and processes. Accordingly, the Bill imposes a duty on regulated user-to-user and search services to establish and operate an easy-to-use, accessible and transparent complaints procedure. The complaints procedure must provide for appropriate action to be taken by the provider in relation to the complaint.

It is worth reminding ourselves that this duty is an enforceable requirement. Where a provider is failing to comply with its complaints procedure duties, Ofcom will be able to take enforcement action against the regulated service. Ofcom has a range of enforcement powers, including the power to impose significant penalties and confirmation decisions that can require the provider to take such steps as are required for compliance. In addition, the Bill includes strong super-complaints provisions that will allow for concerns about systemic issues to be raised with the regulator, which will be required to publish its response to the complaint. This process will help to ensure that Ofcom is made aware of issues that users are facing.

Separately, individuals will also be able to submit complaints to Ofcom. Given the likelihood of an overwhelming volume of complaints, as we have heard, Ofcom will not be able to investigate or arbitrate on individual cases. However, those complaints will be an essential part of Ofcom’s horizon-scanning, research, supervision and enforcement activity. They will guide Ofcom in deciding where to focus its attention. Ofcom will also have a statutory duty to conduct consumer research about users’ experiences in relation to regulated services and the handling of complaints made by users to providers of those services. Further, Ofcom can require that category 1, 2A and 2B providers set out in their annual transparency reports the measures taken to comply with their duties in relation to complaints. This will further ensure that Ofcom is aware of any issues facing users in relation to complaints processes.

At the same time, I share the desire expressed to ensure that the complaints mechanisms will be reviewed and assessed. That is why the Bill contains provisions for the Secretary of State to undertake a review of the efficacy of the entire regulatory framework. This will take place between two and five years after the Part 3 provisions come into force, which is a more appropriate interval for the efficacy of the duties around complaints procedures to be reviewed, as it will allow time for the regime to bed in and provide a sufficient evidence base to assess whether changes are needed.

Finally, I note that Amendment 56 assumes that the preferred solution following a review will be an ombudsman. There is probably not enough evidence to suggest that an ombudsman service would be effective for the online safety regime. It is unclear how an ombudsman service would function in support of the new online safety regime, because individual user complaints are likely to be complex and time-sensitive—and indeed, in many cases financial compensation would not be appropriate. So I fear that the noble Lord’s proposed new clause pre-empts the findings of a review with a solution that is resource-intensive and may be unsuitable for this sector.

Amendments 250A and 250B, tabled by my noble friend Lady Newlove, require that an independent appeals system is established and that Ofcom produces guidance to support this system. As I have set out, the Government believe that decisions on user redress and complaints are best dealt with by services. Regulated services will be required to operate an easy-to-use, accessible and transparent complaints procedure that enables users to make complaints. If services do not comply with these duties, Ofcom will be able to utilise its extensive enforcement powers to bring them into compliance.

The Government are not opposed to revisiting the approach to complaints once the regime is up and running. Indeed, the Bill provides for the review of the regulatory framework. However, it is important that the new approach, which will radically change the regulatory landscape by proactively requiring services to have effective systems and processes for complaints, has time to bed in before it is reassessed.

Turning specifically to the points made by my noble friend and by the noble Baroness, Lady Kidron, about the impartial out of court dispute resolution procedure in the VSP, the VSP regime and the Online Safety Bill are not directly comparable. The underlying principles of both regimes are of course the same, with the focus on systems regulation and protections for users, especially children. The key differences are regarding the online safety framework’s increased scope. The Bill covers a wider range of harms and introduces online safety duties on a wider range of platforms. Under the online safety regime, Ofcom will also have a more extensive suite of enforcement powers than under the UK’s VSP regime.

On user redress, the Bill goes further than the VSP regime as it will require services to offer an extensive and effective complaints process and will enable Ofcom to take stronger enforcement action where they fail to meet this requirement. That is why the Government have put the onus of the complaints procedure on the provider and set out a more robust approach which requires all in-scope, regulated user to user and search services to offer an effective complaints process that provides for appropriate action to be taken in relation to the complaint. This will be an enforceable duty and will enable Ofcom to utilise its extensive online safety enforcement powers where services are not complying with their statutory duty to provide a usable, accessible and transparent complaints procedure.

At the same time, we want to ensure that the regime can develop and respond to new challenges. That is why we have included a power for the Secretary of State to review the regulatory framework once it is up and running. This will provide the correct mechanism to assess whether complaint handling mechanisms can be further strengthened once the new regulations have had time to bed in.

The Government are confident that the Online Safety Bill represents a significant step forward in keeping users safe online for these reasons.

[Lord Russell of Liverpool (CB)]

My Lords, could I just ask a question? This Bill has been in gestation for about five to six years, during which time the scale of the problems we are talking about has increased exponentially. The Government appear to be suggesting that they will, in three to five years, evaluate whether or not their approach is working effectively.

There was a lot of discussion in this Chamber yesterday about the will of the people and whether the Government were ignoring it. I gently suggest that the very large number of people, who are having all sorts of problems or who are fearful of harm from the online world, will not find in the timescale that the Government are proposing the sort of remedy and speed of action I suspect they were hoping for. Certainly, the rhetoric the Government have used and continue to use at regular points in the Bill when they are slightly on the back foot seems to be designed to try to make the situation seem better than it is.

Will the Minister and the Bill team take on board that there are some very serious concerns that there will be a lot of lashing back at His Majesty’s Government if in three years’ time—which I fear may be the case—we still have a situation where a large body of complaints are not being dealt with? Ofcom is going to suffer from major ombudsman-like constipation trying to deal with this, and the harms will continue. I think I speak for the Committee when I say that the arguments the Minister and the government side are making really do not hold water.

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[Viscount Camrose (Con)]

Considerably more rights are provided than they have today, with the service provider. Indeed, Ofcom would not necessarily deal with individual complaints—

[Lord Russell of Liverpool (CB)]

Where would they go?

[Viscount Camrose (Con)]

They would go to the service provider in the first instance and then—