Media Bill

Lord Stevenson of Balmacara Excerpts

2nd reading
Wednesday 28th February 2024 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I declare an interest as a former director of the British Film Institute, and that my younger daughter’s partner has recently joined a media company whose interests are engaged by the Bill.

This Bill, the first media Bill for over 20 years, as many have commented, has been widely welcomed across the industry. However, it is worth bearing in mind that it comes at a time when we have been looking in depth at the social media industries through the Online Safety Act, when we are still considering changes to the rules governing personal data through the DPDI Bill, and when we are looking at the competition powers required by the CMA in relation to digital media under the DMCC Bill. I make that point because it is confusing for all concerned—I guess that even the Minister has some difficulties in working out which day, which Bill, or which speech he should be giving; I certainly feel that.

Until recently, such Bills were all largely under one set of Ministers at the DCMS. The complication that we have now is that this has been lost because of the machinery-of-government changes. I worry that it is causing unnecessary fragmentation of effort in key areas for the UK economy. It also bears on the amendment from the noble Lord, Lord Forsyth, and his frustration at being unable to tackle the mass of material which is going through, and where he may be ruled out of court and out of the Bill. I hope his points are made, thought about and addressed in some way over the next few weeks.

While I am whingeing, I could also say that, like others, I worry that we are not dealing with AI at all. It seems to be a blank in the Bill but also in the briefing notes and material, and the speeches we have heard so far. We all know it is there. It is a problem, but we do not know how to deal with it, and we are just blanking it off.

While we are concerned about that, we could join with the regret of the noble Baroness, Lady Kidron, that we did not use the Bill in a positive sense to try to place a context as a whole around the BBC. We all accept that the BBC is the jewel in the crown that we are talking about, but we never discuss or even consider how to safeguard and future-proof it as it goes forward.

Finally on these whinges, I hope that others will pick up the point made elsewhere about the question of Gaelic and minority cultures. That is so important, as is genre. I hope that will come through, but I do not have time to deal with it myself.

We know, as Ofcom states, that the

“UK’s broadcasting and media landscape is one of the most diverse, creative, and vibrant anywhere in the world”.

It is not an accident. As the noble Lord, Lord Birt, said, UK broadcasting policy has evolved on a broadly bipartisan basis since the founding of the BBC a century ago. There were some rocky passages in policy development in the last few years, but luckily, what we have before us today is, by and large, a continuation of that bipartisan approach, and I fully welcome that.

My noble friend Lord Bassam made a number of good points. His context is the one I want to follow, but freed from my responsibilities on the Front Bench, I do not have to cover everything and will cover only three points. The first is the timing of the DTT and IP switchover. A lot of the lobbying that we have received in the run-up to this debate has focused on the timing and the impact of the TV delivery system changing from DTT to IP. Clearly, further discussions are required, and we know they are going on. However, the key policy questions that we ought to be addressing are absent from the Bill, and I wonder whether that is right. For instance, is it right to push back the changeover until the mid-2030s? Is there any flexibility on that? There will be huge consequences if we miss the optimum timing—the tipping point—and do not bring forward when needed the substantial regulatory changes to drive the scale of industry co-operation which will be required across TV and all other content. Has this been factored into the thinking? What scenarios have been contemplated? Has any assessment been made of the investment required by both the public sector and private investors? The digital switchover plan comes to mind, but I do not see that anywhere in the documentation around this. Could the Minister comment on that?

The need to drive digital inclusion for those living in remote areas must not be forgotten. For those whose skills are not up to the challenges of internet provision, what will we do? Some of the figures are extraordinary. There are 3 million households still without broadband, of which over 2 million comprise mainly older people, who are unlikely to be able get their technical skills up to the level required. Even more worryingly, 1 million households are on low incomes and will not be able to afford to upgrade themselves. These are issues which I do not see in the Bill; I hope that we will be able to come back to them.

There has been a broad welcome for the proposal in the Bill for the reform of PSB prominence. As the Minister said, the current rules, which reflect the technology and usage patterns of the early years, are out of date, but the principles on which they stand need to be brought forward, and it is good to see them in the Bill. As others have said, I worry that the approach seems to be less concerned about radio, which is such an important part of our everyday life. The Bill seems unlikely to resolve some of the concerns raised about voice services and podcasts.

On Section 40, I do not wish to go into detail, because I take it for granted that its elimination will take place. Personally, I regret it slightly—my name was on the original amendment. By some weird quirk of fate, because of the rush to get it through, it happened to be patched into a Bill I was doing—I think it was the higher education Bill. It was nothing to do with it, so that might give some hope to the noble Lord, Lord Forsyth, that you can get these things through if it is necessary.

When he comes to respond to this debate, the Minister owes the House some sense of what is happening under the post-Leveson regulations. I do not want to get into the main issues; we need to know more about what the Government’s thinking is before we can come back to that. Is it true that the Government remain committed to the continued existence of the royal charter on self-regulation of the press? If so, what role do they see for the Press Recognition Panel, established under the royal charter to provide the independent oversight of the system that it does? Have they any concerns about the system, and if so, could they set them out, so that we are aware of the issues that they have on this? What do the Government make of the PRP’s recent annual report comment that:

“Because most publishers remain outside of the recognition system”—


and some do not even have a complaints system—

“complaining about news publishers is not straightforward”?

These are really important issues for those who have been put in a bad place because of the press. I think that we will hear more of that from other speakers. We need answers.

--- Later in debate ---

[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

Lord Stevenson of Balmacara Excerpts

Consideration of Commons amendments
Tuesday 19th September 2023 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I shall contribute briefly from these Benches because it is important for us all to be aware of just how much people outside have been watching the progress of the Bill. Indeed, today in the Public Gallery we have some bereaved parents who have suffered at the hands of things that have come up on the internet. We have been very privileged, all the way through the Bill, to be able to hear from people who have been victims and who have genuinely wanted to improve things for others and avoid other problems. The collaborative nature with which everyone has approached the Bill has, we hope, achieved those goals for everyone.

We all need to wish the noble Lord, Lord Grade, good luck and all the best as he takes on an incredibly important scrutiny role. I am sure that in years to come we will be looking at post-legislative scrutiny. In the meantime, I shall not name everybody, apart from putting the Minister in prime position; I thank him and everyone for having worked so hard, because I hear from outside that that work is greatly appreciated.

[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

Lord Stevenson of Balmacara Excerpts

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

Lord Stevenson of Balmacara Excerpts

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.

[Baroness Morgan of Cotes (Con)]

My Lords, I will speak briefly to Amendments 272AA and 274AA, only because at the previous stage of the Bill I tabled amendments related to the reporting of illegal content and fraudulent advertisements, both in reporting, and complaints and transparency. I have not re-tabled them here, but I have had conversations with my noble friend the Minister. It is still unclear to those in the House and outside why the provisions relating to that type of reporting would not apply to fraudulent advertisements, particularly given that the more information that can be filed about those types of scams and fraudulent advertisements, the easier it would be for the platforms to gather information, and help users and others to start to crack down on that. I wonder if, when he sums up, my noble friend could say something about the reporting provisions relating to fraudulent advertisements generally, and in particular around general reporting and reporting relating to complaints by users.

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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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Moved by

[Lord Stevenson of Balmacara]

239: After Clause 201, insert the following new Clause—
“Regulations: consultation and impact assessments
(1) This section applies if the Secretary of State seeks to exercise powers under—(a) section 55 (regulations under section 54),(b) section 195 (powers to amend section 35),(c) section 196 (powers to amend or repeal provisions relating to exempt content or services),(d) section 197 (powers to amend Part 2 of Schedule 1),(e) section 198 (powers to amend Schedules 5, 6 and 7), or(f) paragraph 1 of Schedule 11 (regulations specifying threshold conditions for categories of Part 3 services),or where the Secretary of State intends to direct OFCOM under section 39.(2) The Secretary of State may not exercise the powers under the provisions in subsection (1) unless any select committee charged by the relevant House of Parliament with scrutinising such regulations has—(a) completed its consideration of the draft regulations and accompanying impact assessment provided by the Secretary of State; and(b) reported on their deliberation to the relevant House; andthe report of the committee has been debated in that House, or the period of six weeks beginning on the day on which the committee reported has elapsed.”

[Lord Stevenson of Balmacara (Lab)]

My Lords, this amendment would require the Secretary of State, when seeking to exercise certain powers in the Bill, to provide the relevant Select Committees of both Houses with draft regulations and impact assessments, among other things. I should admit up front that this is a blatant attempt to secure an Online Safety Bill version of what I have called the “Grimstone rule”, established in the international trade Bill a few years ago. Saving his blushes, if the ideas enshrined in the amendment are acceptable to the Government, I hope that the earlier precedent of the “Grimstone rule” would ensure that any arrangements agreed under this amendment would be known in future as the “Parkinson rule”. Flattery will get you many things.

The Bill places a specific consultation requirement on the Government for the fee regime, which we were just talking about, categorisation thresholds, regulations about reports to the NCA, statements of strategic priorities, regulations for super-complaints, and a review of the Act after three years—so a wide range of issues need to be put out for consultation. My context here, which is all-important, is a growing feeling that Parliament’s resources are not being deployed to the full in scrutinising and reviewing the work of the Executive on the one hand and feeding knowledge and experience into future policy on the other. There is continuing concern about the effectiveness of the secondary legislation approval procedures, which this amendment would bear on.

Noble Lords have only to read the reports of the Select Committees of both Houses to realise what a fantastic resource they represent. One has only to have served on a Select Committee to realise what potential also exists there. In an area of rapid technical and policy development, such as the digital world, the need to be more aware of future trends and potential problems is absolutely crucial.

The pre-legislative scrutiny committee report is often quoted here, and it drew attention to this issue as well, recommending

“a Joint Committee of both Houses to oversee digital regulation with five primary functions: scrutinising digital regulators and overseeing the regulatory landscape … scrutinising the Secretary of State’s work into digital regulation; reviewing the codes of practice laid by Ofcom under any legislation relevant to digital regulation … considering any relevant new developments such as the creation of new technologies and the publication of independent research … and helping to generate solutions to ongoing issues in digital regulation”—

a pretty full quiver of issues to be looked at.

I hope that when he responds to this debate, the Minister will agree that ongoing parliamentary scrutiny would be helpful in providing reassurances that the implementation of the regime under the Bill is going as intended, and that the Government would also welcome a system under which Parliament, perhaps through the Select Committees, can contribute to the ways suggested by the Joint Committee. I say “perhaps”, because I accept that it is not appropriate for primary legislation to dictate how, or in what form, Parliament might offer advice in the manner that I have suggested; hence the suggestion embedded in the amendment—which I will not be pressing to a Division—which I call the “Parkinson rule”. Under this, the Minister would agree at the Dispatch Box a series of commitments which will provide an opportunity for enhanced cross-party scrutiny of the online safety regime and an opportunity to survey and report on future developments of interest.

The establishment of the new Department for Science, Innovation and Technology and its Select Committee means that there is a new dedicated Select Committee in the Commons. The Lords Communications and Digital Committee will continue, I hope, to play a vital role in the scrutiny of the digital world, as it has with the online safety regime to date. While it would be for the respective committees to decide their priorities, I hope the Government would encourage the committees in both Houses to respond to their required consultation processes and to look closely at the draft codes of practice, the uses of regulation-making powers and the powers of direction contained in the Bill ahead of the formal processes in both Houses. Of course, it could be a specialist committee if that is what the Houses decide, but there is an existing arrangement under which this “Parkinson rule” could be embedded. I have discussed the amendment with the Minister and with the Bill team. I look forward to hearing their response to the ideas behind the amendment. I beg to move the “Parkinson rule”.

[Lord Clement-Jones (LD)]

I support the amendment of the noble Lord, Lord Stevenson. Here is an opportunity for the Minister to build a legislative monument. I hope he will take it. The reason I associate myself with it is because the noble Lord, Lord Stevenson—who has been sparing in his quoting of the Joint Committee’s report, compared with mine—referred to it and it all made very good sense.

The amendment stumbles only in the opinion of the Government, it seems, on the basis that parliamentary committees need to be decided on by Parliament, rather than the Executive. But this is a very fine distinction, in my view, given that the Government, in a sense, control the legislature and therefore could will the means to do this, even if it was not by legislation. A nod from the Minister would ensure that this would indeed take place. It is very much needed. It was the Communications and Digital Committee, I think, that introduced the idea that we picked up in the Joint Committee, so it has a very good provenance.

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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.

Amendment 239 withdrawn.

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[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Stowell. My noble friend has spoken very cogently to Amendment 258ZA, and I say in answer to the question posed by the noble Baroness that I do not think this is designed to make big tech companies content. What it is designed to do is bring this out into the open and make it contestable; to see whether or not privacy is being invaded in these circumstances. To that extent it airs the issues and goes quite a long way towards allaying the concerns of those 80 organisations that we have heard from.

I am not going to repeat all the arguments of my noble friend, but many noble Lords, not least on the opposite Benches, have taken us through some of the potential security and privacy concerns which were also raised by my noble friends, and other reasons for us on these Benches putting forward these amendments. We recognise those concerns and indeed we recognise concerns on both sides. We have all received briefs from the NSPCC and the IWF, but I do not believe that essentially what is being proposed here in our amendments, or indeed by the amendments put forward by the noble Lord, Lord Stevenson, are designed in any way to prevent Ofcom doing its duty in relation to child sexual abuse and exploitation material in private messaging. We believe that review by the ICO to ensure that there is no invasion of privacy is a very useful mechanism.

We have all tried to find solutions and the Minister has put forward his stab at this with the skilled persons report. The trouble is, that does not go far enough, as the noble Baroness, Lady Stowell, said. Effectively, Ofcom can choose the skilled person and what the skilled person is asked to advise on. It is not necessarily comprehensive and that is essentially the major flaw.

As regards the amendments put forward by the noble Lord, Lord Stevenson, it is interesting that the Equality and Human Rights Commission itself said:

“We are concerned by the extent and seriousness of CSEA content being shared online. But these proposed measures may be a disproportionate infringement on millions of individuals’ right to privacy where those individuals are not suspected of any wrongdoing”.


It goes on to say:

“We recommend that Ofcom should be required to apply to an independent judicial commissioner—as is the case for mass surveillance under the Investigatory Powers Act”.


I am sure that is the reason why the noble Lord, Lord Stevenson, put forward his amendments; if he put them to a vote, we would follow and support. Otherwise, we will put our own amendments to the House.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been—since we first got sight of the Bill and right the way through—one of the most difficult issues to try to find balance and a solution. I know that people have ridiculed my attempt to try and get people to speak less in earlier amendments. Actually, in part it was so we could have a longer debate here—so the noble Lord, Lord Moylan, should not be so cross with me, and I hope that we can continue to be friends, as we are outside the Chamber, on all points, not just this one.

Talk is not getting us to a solution on this, unfortunately. I say to the Minister: I wonder whether there is a case here for pausing a little bit longer on this, because I still do not think we have got to the bottom of where the balance lies. I want to explain why I say that, because, in a way, I follow the noble Baroness, Lady Stowell, in worrying that there are some deeper questions here that we have not quite got the answers to. Nothing in the current amendments gets us to quite the right place.

I started by thinking that, if only because Ofcom was being seen to be placed in a position of both being a part of the regulatory process, but also having the rights to interpose itself into where this issue about encryption came up, Ofcom needed the safety of an external judicial review along the lines of the current RIPA system. That has led us to my Amendments 256, 257 and 259, which try to distil that sensibility into a workable frame for the Bill and these issues. I will not push it to a vote. It is there because I wanted to have in the discussion a proper look at what the RIPA proposal would look like in practice.

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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

Lord Stevenson of Balmacara Excerpts

Report stage
Monday 17th July 2023 Lords Chamber

The logic is absolutely in favour of this. I very much hope that the Minister will be able to take it on board because it has been seen to be logical right from the word go, particularly by the Joint Committee. I think the Communications and Digital Committee also recommended it, so what is not to like?

[Lord Stevenson of Balmacara (Lab)]

My Lords, as others have said, this has been a very interesting tour d’horizon of some of the points in the Bill that we still need to resolve. I will not go over too much of the detail that has been raised because those points need a response from the Minister when he responds.

I will start with the use of “chairman” in several places throughout the Bill. We do not understand what is going on here. My noble friend Lady Merron wanted to deal with this but she unfortunately is not here, so I have been left holding the issue, and I wish to pursue it vigorously.

It is probably not well known but, in 2007, the Government decided that there ought to be changes in the drafting of our laws to make them gender-neutral as much as possible. Since 2007, it has been customary practice to replace words that could be gender-specific with those which are not. The Drafting Guidance, which is issued and should be followed by the Office of the Parliamentary Counsel, says that gender-neutral drafting requires

“avoiding gender-specific pronouns (such as ‘he’) for a person who is not necessarily of that gender”,

and avoiding gender-specific nouns

“that might appear to assume that a person of a particular gender will do a particular job or perform a particular role (eg ‘chairman’)”.

The guidance provides another bit of extra information:

“The gender-specific noun most likely to be encountered is ‘chairman’. ‘Chair’ is now widely used in primary legislation as a substitute”,


and we should expect to see it. Why do we not see it in this Bill?

[Lord Deben (Con)]

My wife, who is chairman of a number of things, objects to “chair” as “furniturism”. She likes to be referred to as a person and not a thing.

[Lord Stevenson of Balmacara (Lab)]

I respect the noble Lord’s point. I did not make a specific proposal; I simply asked why the Bill was framed in circumstances that are not those required by the Office of the Parliamentary Counsel.

Moving on, Amendment 288A, which addresses the issue of multiple characteristics, is welcome. I am grateful to the Minister for it. However, it is a rather odd solution to what should be a very straightforward question. We have the amendment—which, as I said, we welcome—because it was pointed out that the new overarching objective for this Bill that has been brought forward by government amendment refers to issues affecting those who have a characteristic. It uses the word “characteristic” without qualification, although I think most of us who have been involved in these debates and discussions realise that this is an oblique reference to the Equality Act 2010 and that, although they are not set out in the Bill, the characteristics concerned are probably those that are protected under the Equality Act. I think the Minister has some problem with the Equality Act, because we have crossed swords on it before, but we will not go back into that.

In referencing “a characteristic”, which is perfectly proper, we did not realise—but it has been pointed out—that under the Interpretation Act it is necessary to recall that in government legislation when the singular is mentioned it includes the plural unless it is specifically excluded. So we can assume that when references are made to “a characteristic”, they do in fact mean “characteristics”. Therefore, by logic, moving forward to the way to which it is referred in the Bill, when a person is referred to as having “a characteristic” it can also be assumed that the reference in the Bill applies to them having more than one characteristic.

However, grateful as I am to the Minister for bringing forward these amendments, which we accept, this is not quite the point that we were trying to get across. I invite the Minister, when he comes to respond, to explain a little more about the logic behind what I will propose. We are fairly convinced—as I think are most people who have been involved in these discussions—that social media companies’ form of operation, providing the materials and service that we want, is gendered. I do not think there is any doubt about that; everybody who has spoken in this debate has at some stage pointed out that, in many cases, those with protected characteristics, and women and girls in particular, are often picked on and singled out. A pile-on—the phrase used to mean the amplification that comes with working on the internet—is a very serious concern. That may change; it may just be a feature of today’s world and one day be something that does not happen. However, at the moment, it is clearly the case that if one is in some way characterised by a protected characteristic, and you have more than one of them, you tend to get more attention, aggravation and difficulty in your social media engagement. The evidence is so clear that we do not need to go into it.

The question we asked in Committee, and which we hoped we would get a response to, was whether we should always try to highlight the fact that where we are talking about people with more than one characteristic, it is the fact that there is a combination, not that it is a plural, that is the matter. Being female and Jewish, which has been discussed several times from the Dispatch Box by my noble friend Lady Merron and others, seems to be the sort of combination of characteristics which causes real difficulties on the internet for the people who have them. I use that only as one example; there are others.

If that is the case then it would have been nice to have seen that specifically picked up, and my original drafting of the amendment did that. However, we have accepted the Government’s amendment to create the new overarching objective, and I do not want to change it at this stage—we are past that debate. But I wonder whether the Minister, when he comes to respond, could perhaps as a grace note explain that he accepts the point that it is the doubling or tripling of the characteristics, not the plurality, that matters.

Moving back to the clauses that have been raised by others speaking in this debate, and who have made points that need to be responded to, I want to pick up on the point made by the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Kidron, about the need for some form of engagement between domestic regulators if we are going to get the best possible solution to how the internet is regulated as we go forward. We have never said that there had to be a new super-regulator and we never intended that there should be powers taken to change the way in which we do this. However, some form of co-operation, other than informal co-operation, is almost certainly going to be necessary. We do not want to subtract from where we are in relation to how our current regulators operate—they seem to be working well—but we worry that the legal powers and support that might be required in order to do that are not yet in place or, if they are in place, are based on somewhat archaic and certainly not modern-day regulatory practice.

Is this something that the committees of the Houses might consider? Perhaps when we come to other amendments around this, that is something we might pick up, because I think it probably needs further consideration away from the Bill in order to get the best possible solution. That is particularly true given, as the noble Lord, Lord Clement-Jones, says, so many of these regulators will now have experience of working together and might be prepared to share that in evidence or in appearances before such a committee.

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My amendments just remind Ofcom that we need this research and evidence by nation. This Bill is so large, so wide-ranging, that Ofcom’s remit and functions are having to expand hugely to deliver this new regime. The noble Baroness, Lady Fox, reminded us last week that what Ofcom does comes from the legislation. It does not do things off its own bat. Ofcom already has a huge challenge on its hands with this Bill, and experience tells us that it is likely to deliver only what is specified—the “must do” bits, not the “nice to do” extras. There may be no differences in the online experiences across the nations of the UK, but the only way we can be sure is if we have the data for each nation, the transparency and all the research reporting. I urge the Minister to take my amendment seriously.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I think that was a very good speech from the noble Baroness, partly because I signed her amendment and support it and also because I want to refer back to the points made earlier by the noble Lord, Lord Bethell, about research. I am speaking from the Back Benches here because some of what I say may not have been cleared fully with my colleagues, but I am hoping that they will indulge me slightly. If I speak from this elevated position, perhaps they will not hear me so well.

To deal with noble Lords in the order in which they spoke, I support the amendments tabled by the noble Lord, Lord Bethell, in relation to having a bit more activity in relation to the area where we have very good change of government policy in relation to access by researchers to data, and I am very grateful to the Minister for doing that. The noble Lord, Lord Bethell, made the point that there is perhaps a bigger question and a bigger story than can be done just by simply bringing forward the time of the report and changing “may” to “must”, although I always think “may” to “must” changes are important because they reflect a complete change of approach and I hope action will follow. The question about access by those who need data in order to complete their research is crucial to the future success of these regimes. That plays back to what the noble Baroness, Lady Fraser, was saying, which is that we need to have this not just in aggregate form but broken down and stratified so that we can really interrogate where this information is showing the gaps, the opportunities, the changes that are needed and the successes, if there are any, in the way in which we are working.

I support the amendments tabled by the noble Lord, Lord Bethell, because I think this is not so much a question of regulation or lawmaking in this Bill but of trying to engender a change of culture about the way in which social media companies operate. It will need all of us, not just the Government or the regulatory bodies, to continue to press this because this is a major sea change in what they have been doing until now. They are quite rightly protective of their business interests and business secrets, but that is not the same when the currency is data and our data is being used to create change and opportunity and their profits are based on exploiting our resources.

I go back to the points made by the noble Lord, Lord Moylan, in his opening amendment today about why consumer rights do not apply when monetary considerations are not being taken into account. Bartering our data in order to obtain benefits from social media companies is not the same as purchasing over the counter at the local shop—we accept that—but times have changed and we are living in a different world. Everything is being bought and sold electronically. Why is consumer law not being moved forward to take account of that so that the rights that are important to that, because they are the same, are being exploited? I leave that for the Minister to come back to if he wishes to do so from the Dispatch Box.

Moving on to the Scottish issues, the amendment, as introduced by the noble Baroness, is about transparency and data, but I think it hides a bigger question which I am afraid affects much of the legislation that comes through this House, which is that very often the devolution impact of changes in the law and new laws that are brought forward is always the last to be thought about and is always tacked on at the end in ways that are often very obscure.

I have one particularly obscure question which I want to leave with the Minister, completely unreasonably, but I think it just about follows on from the amendment we are discussing. It is that, towards the end of the Bill, Clause 53(5)(c) refers to the consent of the Secretary of State or other Minister of the Crown to crimes in Scottish or Northern Irish legislation when they enter the Online Safety Bill regime. This is because, as has been made clear, laws are changing and are already different in Scotland, Wales and Northern Ireland from some of the criminal laws in England and Wales. While that is to be welcomed, as the noble Baroness said, the devolved Administrations should have the right to make sure, in the areas of their control, that they have the laws that are appropriate for the time, but if they are different, we are going to have to live with those across the country in a way that is a bit patchwork. There need to be rules about how they will apply. I think the noble Baroness said that it would be right and proper that a crime committed in one territory is treated within the rules that apply in that territory, but if they are significantly different, we ought at least to understand why that is the case and how that has come about.

As I understand it—I have a note provided by Carnegie UK and it is always pretty accurate about these matters—the Secretary of State can consent to a devolved authority which wants to bring forward a devolved offence and include it in the online safety regime. However, it is not quite clear how that happens. What is a consent? Is it an Order in Council, a regulation, affirmative or negative procedure or primary legislation? We are not told that; we are just told that consent arrangements apply and consent can be given. Normally consents involve legislative authority—in its words, one Parliament speaking to another—and we are all becoming quite aware of the fact that the legislative consent required from Scotland, Northern Ireland or Wales is often not given, yet the UK Parliament continues to make legislation and it applies, so the process works, but obviously it would be much better if the devolved structures were involved and agreed to what was being done. This is different from the normal top-down approach. Where we already have a change in the law or the law is about to be changed in one of the devolved Administrations, how does that become part of the Online Safety Bill regime? I look forward to the Minister’s response. I did not warn him that I was giving him a very difficult question, and he can write if he cannot give the detail today, but we would like to see on the record how this happens.

If we are getting Statements to Parliament from the Secretary of State about provisional changes to the way in which the law applies in the devolved Administrations, are they going to be subject to due process? Will there be engagement with committees? What will happen if a new code is required or a variation in the code is required? Does that require secondary legislation and, if so, will that be done with the consent of the devolved Administration or by this Parliament after a process we are yet to see?

There is a lot here that has not been fleshed out. There are few very easy answers, but it would be useful if we could get that going. I will not go into more detail on the noble Baroness’s point that laws change, but I know that the Law Society of Scotland has briefed that at least one major piece of legislation, the Hate Crime and Public Order (Scotland) Act 2021, does not appear in Schedule 7 as expected. Again, I ask the Minister if he would write to us explaining the background to that.

These are very important issues and they do not often get discussed in the full process of our Bills, so I am glad that the noble Baroness raised them. She cloaked them in what sounded like a very general and modest request, but they reveal quite considerable difficulties behind them.

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[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 Clement-Jones (LD)]

My Lords, this has been a very interesting debate. Beyond peradventure my noble friend Lord Allan and the noble Viscount, Lord Colville, and the noble Baroness, Lady Fox, have demonstrated powerfully the perils of this clause. “Lawyers’ caution” is one of my noble friend’s messages to take away, as is the complexities in making these judgments. It was interesting when he mentioned the sharing for awareness’s sake of certain forms of content and the judgments that must be taken by platforms. His phrase “If in doubt, take it out” is pretty chilling in free speech terms—I think that will come back to haunt us. As the noble Baroness, Lady Fox, said, the wrong message is being delivered by this clause. It is important to have some element of discretion here and not, as the noble Baroness, Lady Kidron, said, a cliff edge. We need a gentler landing. I very much hope that the Minister will land more gently.

[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

Lord Stevenson of Balmacara Excerpts

Report stage
Wednesday 12th July 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, we have heard some very well-rehearsed lines during the debate today, with the usual protagonists. Nevertheless, the truth of the matter is that the Press Recognition Panel is as frustrated as many of us on these Benches and other Benches at the failure to implement a post-Leveson scheme of press regulation. Despite many efforts, it has never been fully put into effect.

I do not think I need to repeat a great deal of what has been said today. For instance, the record of IPSO, which the noble Lord, Lord Faulks, talked about, has been very well tracked by Hacked Off. This is not a proposal for state regulation—which is so often, if you like, the canard placed on it.

If not this Bill, which Bill? The media Bill is not going to tackle issues such as this, as my noble friend Lord McNally said. As the noble Lord, Lord Stevenson, has pointed out, this Bill has been a series of conversations —extremely fruitful conversations—but in this particular direction it has borne no fruit at all.

I must admit that, throughout my looking at the draft Bill and continuing to look through its various versions, this opt-out for news publishers has remained a puzzle. The below-the-line opt-out for the mainstream news media always strikes me as strange, because there is no qualification that there should be any curation of that below-the-line, user-generated content. That is peculiar, and it is rather like somebody in the last chance saloon being rewarded with a bouquet. It seems a rather extraordinary provision.

My noble friend Lord Allan rightly pointed to some of the dangers in the new provisions, and indeed in the provisions generally, for these services. I hope the Minister has at least some answers to give to the questions he raised. Progress on this and the scheme that the PRP was set up to oversee, which is still not in place, remain a source of great division across the parties and within them. There is still hope; it may be that under a different Government we would see a different result.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I was unfortunately unable to attend round 1 of this debate—I had to leave. My noble friend Lord Knight has absented himself from hearing what I am going to say about his remarks, so he must fear that he had got his lines wrong. I apologised to him for leaving him a bit exposed, because we had not quite anticipated how the conversation would go, but I think he did as well as he could, and I repeat the lines he said: this is not the right Bill to rerun the arguments about the Leveson report. I still believe that. The noble Lord, Lord Clement-Jones, does not think the media Bill is; maybe it is not, but at least we can make sure that the debate is properly argued.

It is interesting that, although we clearly have well-defined positions and antipathies present in the debate, a number of things have been said today that will be helpful, if we manage to get a little closer, in trying to resolve some of the issues outstanding. If I am still around and involved in it, I will approach this by trying to see what we can do together rather than the rights and wrongs of positions we have adopted before. It has worked for this Bill: we have achieved huge changes to the Bill because we decided from the start that we would try to see what was the best that could come out of it. That is the instinct I have as we go forward to any future debate and discussion, whether or not it is on the media Bill.

The puzzling thing here is why this is such a continuing concern that it needs to be brought into to any opportunity we have to discuss these areas. The sense we had in the pre-legislative scrutiny committee, which discussed this to some extent but not in quite the same range as we have tonight, or even in Committee, was that the issues raised in this Bill were really about protecting freedom of expression. At that stage, the Bill still had the legal but harmful clauses in it so perhaps had had less exposure to those issues in the debate we had. I still think it is primarily about that. I still have real concerns about it, as have been raised by one or two people already in our discussion. I do not think the recognised news provider definition is a good one; I do not think the definition of a journalist is a good one. The pre-legislative scrutiny committee wanted an objective test of material based around public interest, but the Government would not accept that, so we are where we are. We must try to ensure that what works is what we have in the Bill in relation to the topics before it.

The primary purpose must be to ensure material that will inform and enhance our knowledge about democracy, current affairs and issues that need to be debated in the public space, so it is clearly right that that which is published by recognised journalists—quality journalists is another phrase that has been used—should be protected, perhaps more than other material, but at the fringes there are still doubts as to whether the Bill does that.

I had taken it that in the amendments I signed up to, government Amendments 158 and 161, the material we were talking about was from recognised news publishers, not material self-generated in social media. I am looking hard at the Minister hoping he will be able to come to my aid when he comes to respond. The issue here is about making sure that material that was not originally broadcast but is still provided by a recognised news publisher is protected from being taken down, and it would not have been if those amendments were not made. I hope that is the right interpretation. That was the basis on which I signed up for them; I do not know quite where it leaves me if that is wrong.

[Lord Allan of Hallam (LD)]

As I opened up that question, just to be clear, I was saying that it is exactly right that an individual user would not be covered, but I was trying to suggest that a social media-only news service that does not exist as a publication or a broadcaster outside social media, if it meets the Clause 50 test to be a recognised news publisher, should be given extra scope under the amendments.

[Lord Stevenson of Balmacara (Lab)]

I hope they do not, and I think the Minister has to answer that question quite directly. The issue here is about quality material that would otherwise be taken down being kept in place so that we can all as a society be informed by that. That does not mean it needs to be from particular sources that we know to be egregious or running material which is certainly not in the public interest. Again, I make the point that that would have been a better way of approaching this in the legislation, but I take the point made by the noble Lord, Lord Allan, who knows his stuff—I often think we ought to bottle him and carry it around so we can take a whiff of his expertise and knowledge every time we get stuck on a problem, but I am not quite sure how we manage that.

Online Safety Bill

Lord Stevenson of Balmacara Excerpts

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 Clement-Jones (LD)]

My Lords, we are dangerously on the same page this evening. I absolutely agree with the noble Baroness, Lady Kidron, about demonstrating the need for an independent complaints mechanism. The noble Baroness, Lady Stowell, captured quite a lot of the need to keep the freedom of expression aspect under close review, as we go through the Bill. The noble Baroness, Lady Fox, and the noble Lord, Lord Moylan, have raised an important and useful debate, and there are some crucial issues here. My noble friend captured it when he talked about the justifiable limitations and the context in which limitations are made. Some of the points made about the Public Order Act offences are extremely valuable.

I turn to one thing that surprised me. It was interesting that the noble Lord, Lord Moylan, quoted the Equality and Human Rights Commission, which said it had reservations about the protection of freedom of expression in the Bill. As we go through the Bill, it is easy to keep our eyes on the ground and not to look too closely at the overall impact. In its briefing, which is pretty comprehensive, paragraph 2.14 says:

“In a few cases, it may be clear that the content breaches the law. However, in most cases decisions about illegality will be complex and far from clear. Guidance from Ofcom could never sufficiently capture the full range or complexity of these offences to support service providers comprehensively in such judgements, which are quasi-judicial”.


I am rather more optimistic than that, but we need further assurance on how that will operate. Its life would probably be easier if we did not have the Public Order Act offences in Schedule 7.

I am interested to hear what the Minister says. I am sure that there are pressures on him, from his own Benches, to look again at these issues to see whether more can be done. The EHRC says:

“Our recommendation is to create a duty to protect freedom of expression to provide an effective counterbalance to the duties”.


The noble Lord, Lord Moylan, cited this. There is a lot of reference in the Bill but not to the Ofcom duties. So this could be a late contender to settle the horses, so to speak.

This is a difficult Bill; we all know that so much nuance is involved. We really hope that there is not too much difficulty in interpretation when it is put into practice through the codes. That kind of clarity is what we are trying to achieve, and, if the Minister can help to deliver that, he will deserve a monument.

[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

Lord Stevenson of Balmacara Excerpts

Report stage
Thursday 6th July 2023 Lords Chamber

[The Lord Bishop of Oxford]

My Lords, I warmly welcome this group of amendments. I am very grateful to the Government for a number of amendments that they are bringing forward at this stage. I want to support this group of amendments, which are clearly all about navigating forward and future-proofing the Bill in the context of the very rapid development of artificial intelligence and other technologies. In responding to this group of amendments, will the Minister say whether he is now content that the Bill is sufficiently future-proofed, given the hugely rapid development of technology, and whether he believes that Ofcom now has sufficient powers to risk assess for the future and respond, supposing that there were further parallel developments in generative AI such as we have seen over the past year?

[Lord Stevenson of Balmacara (Lab)]

My Lords, this is a quick-fire debate on matters where most of us probably cannot even understand the words, let alone the purpose and particularity of the amendments. I want to raise points already raised by others: it seems that the Government’s intention is to ensure that the Bill is future-proofed. Why then are they restricting this group to Part 5 only? It follows that, since Part 5 is about pornography, it has to be about only pornography—but it is rather odd that we are not looking at the wider context under which harm may occur, involving things other than simply pornography. While the Bill may well be currently able to deal with the issues that are raised in Part 3 services, does it not need to be extended to that as well? I shall leave it at that. The other services that we have are probably unlikely to raise the sorts of issues of concern that are raised by this group. None the less, it is a point that we need reassurance on.

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[Lord Clement-Jones (LD)]

My Lords, this has been a very interesting debate, as it is a real contrast. We have one set of amendments which say that the net is too wide and another which say that the net is not wide enough, and I agree with both of them. After all, we are trying to fine-tune the Bill to get it to deal with the proper risks—the word “risk” has come up quite a lot in this debate—that it should. Whether or not we make a specific exemption for public interest services, public information services, limited functionality services or non-commercial services, we need to find some way to deal with the issue raised by my noble friend and the noble Lord, Lord Moylan, in their amendments. All of us are Wikipedia users; we all value the service. I particularly appreciated what was said by the noble Baroness, Lady Kidron: Wikipedia does not push its content at us—it is not algorithmically based.

What the noble Lord, Lord Russell, said, resonated with me, because I think he has found a thundering great hole in the Bill. This infinite scrolling and autoplay is where the addiction of so much of social media lies, and the Bill absolutely needs systemically and functionally to deal with it. So, on the one hand, we have a service which does not rely on that infinite scrolling and algorithmic type of pushing of content and, on the other hand, we are trying to identify services which have that quality.

I very much hope the Minister is taking all this on board, because on each side we have identified real issues. Whether or not, when we come to the light at the end of the tunnel of Amendment 245 from the noble Baroness, Lady Morgan, it will solve all our problems, I do not know. All I can say is that I very much hope that the Minister will consider both sets of amendments and find a way through this that is satisfactory to all sides.

[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.

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[Lord Clement-Jones (LD)]

I shall be brief, my Lords, because I know we have a Statement to follow. It is a pleasure to follow the noble Lord, Lord Russell. I certainly share his concern about the rise of incel culture, and this is a very appropriate point to raise it.

This is all about choices and the Minister, in putting forward his amendments, in response not only to the Joint Committee but the overwhelming view in Committee on the Bill that this was the right thing to do, has done the right thing. I thank him for that, with the qualification that we must make sure that the red and amber lights are used—just as my noble friend Lord Allan and the noble Baroness, Lady Stowell, qualified their support for what the Minister has done. At the same time, I make absolutely clear that I very much support the noble Baroness, Lady Kidron. I was a bit too late to get my name down to her amendment, but it would be there otherwise.

I very much took to what the right reverend Prelate had to say about the ethics of the online world and nowhere more should they apply than in respect of children and young people. That is the place where we should apply these ethics, as strongly as we can. With some knowledge of artificial intelligence, how it operates and how it is increasingly operating, I say that what the noble Baroness wants to add to the Minister’s amendment seems to be entirely appropriate. Given the way in which algorithms are operating and the amount of misinformation and disinformation that is pouring into our inboxes, our apps and our social media, this is a very proportionate addition. It is the future. It is already here, in fact. So I very strongly support Amendment 174 from the noble Baroness and I very much hope that after some discussion the Minister will accept it.

[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

Lord Stevenson of Balmacara Excerpts

Report stage
Thursday 6th July 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I too must declare my interests on the register—I think that is the quickest way of doing it to save time. We still have time, and I very much hope that the Minister will listen to this debate and consider it. Although we are considering clauses that, by and large, come at the end of the Bill, there is still time procedurally—if the Minister so decides—to come forward with an amendment later on Report or at Third Reading.

We have heard some very convincing arguments today. My noble friend explained that the Minister did not like the DPP solution. I have looked back again at the Law Commission report, and I cannot for the life of me see the distinction between what was proposed for the offence in its report and what is proposed by the Government. There is a cigarette paper, if we are still allowed to use that analogy, between them, but the DPP is recommended—perhaps not on a personal basis, although I do not know quite what distinction is made there by the Law Commission, but certainly the Minister clearly did not like that. My noble friend has come back with some specifics, and I very much hope that the Minister will put on the record that, in those circumstances, there would not be a prosecution. As we heard in Committee, 130 different organisations had strong concerns, and I hope that the Minister will respond to those concerns.

As regards my other noble friend’s amendment, again creatively she has come back with a proposal for including reckless behaviour. The big problem here is that many people believe that, unless you include “reckless” or “consent”, the “for a laugh” defence operates. As the Minister knows, quite expert advice has been had on this subject. I hope the Minister continues his discussions. I very much support my noble friend in this respect. I hope he will respond to her in respect of timing and monitoring—the noble Baroness, Lady Morgan, mentioned the need for the issue to be kept under review—even if at the end of the day he does not respond positively with an amendment.

Everybody believes that we need a change of culture—even the noble Baroness, Lady Fox, clearly recognises that—but the big difference is whether or not we believe that these particular amendments should be made. We very much welcome what the Law Commission proposed and what the Government have put into effect, but the question at the end of day is whether we truly are making illegal online what is illegal offline. That has always been the Government’s test. We must be mindful of that in trying to equate online behaviour with offline behaviour. I do not believe that we are there yet, however much moral leadership we are exhorted to display. I very much take the point of the noble Baroness, Lady Morgan, about the violence against women and girls amendment that the Government are coming forward with. I hope that will have a cultural change impact as well.

As regards the amendments of the noble Baroness, Lady Kennedy, I very much take the point she made, both at Committee and on Report. She was very specific, as the noble Baroness, Lady Kidron, said, and was very clear about the impact, which as men we severely underestimate if we do not listen to what she said. I was slightly surprised that the noble Baroness, Lady Fox, really underestimates the impact of that kind of abuse—particularly that kind of indirect abuse.

I was interested in what the Minister had to say in Committee:

“In relation to the noble Baroness’s Amendment 268, the intentional encouragement or assistance of a criminal offence is already captured under Sections 44 to 46 of the Serious Crime Act 2007”.—[Official Report, 22/6/23; col. 424.]


Is that still the Government's position? Has that been explained to the noble Baroness, Lady Kennedy, who I would have thought was pretty expert in the 2007 Act? If she does not agree with the Minister, that is a matter of some concern.

Finally, I agree that we need to consider the points raised at the outset by the noble and learned Lord, Lord Garnier, and I very much hope that the Government will keep that under review.

[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

Lord Stevenson of Balmacara Excerpts

Report stage
Thursday 6th July 2023 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

Is he not outrageous, trying to make appeals to one’s good humour and good sense? But I support him.

I will say only three things about this brief but very useful debate. First, I welcome the toggle-on, toggle-off resolution: that is a good move. It makes sure that people make a choice and that it is made at an appropriate time, when they are using the service. That seems to be the right way forward, so I am glad that that has come through.

Secondly, I still worry that terms of service, even though there are improved transparency measures in these amendments, will eventually need some form of power for Ofcom to set de minimis standards. So much depends on the ability of the terms of service to carry people’s engagement with the social media companies, including the decisions about what to see and not to see, and about whether they want to stay on or keep off. Without some power behind that, I do not think that the transparency will take it. However, we will leave it as it is; it is better than it was before.

Thirdly, user ID is another issue that will come back. I agree entirely with what the noble Lord, Lord Clement-Jones, said: this is at the heart of so much of what is wrong with what we see and perceive as happening on the internet. To reduce scams, to be more aware of trolls and to be aware of misinformation and disinformation, you need some sense of who you are talking to, or who is talking to you. There is a case for having that information verified, whether or not it is done on a limited basis, because we need to protect those who need to have their identities concealed for very good reason—we know all about that. As the noble Lord said, it is popular to think that you would be a safer person on the internet if you were able to identify who you were talking to. I look forward to hearing the Minister’s response.

[Baroness Morgan of Cotes (Con)]

My Lords, I will speak very briefly to Amendments 55 and 182. We are now at the stage of completely taking the lead from the Minister and the noble Lords opposite—the noble Lords, Lord Stevenson and Lord Clement-Jones—that we have to accept these amendments, because we need now to see how this will work in practice. That is why we all think that we will be back here talking about these issues in the not too distant future.

My noble friend the Minister rightly said that, as we debated in Committee, the Government made a choice in taking out “legal but harmful”. Many of us disagree with that, but that is the choice that has been made. So I welcome the changes that have been made by the Government in these amendments to at least allow there to be more empowerment of users, particularly in relation to the most harmful content and, as we debated, in relation to adult users who are more vulnerable.

It is worth reminding the House that we heard very powerful testimony during the previous stage from noble Lords with personal experience of family members who struggle with eating disorders, and how difficult these people would find it to self-regulate the content they were looking at.

In Committee, I proposed an amendment about “toggle on”. Anyone listening to this debate outside who does not know what we are talking about will think we have gone mad, talking about toggle on and toggle off, but I proposed an amendment for toggle on by default. Again, I take the Government’s point, and I know my noble friend has put a lot of work into this, with Ministers and others, in trying to come up with a sensible compromise.

I draw attention to Amendment 55. I wonder if my noble friend the Minister is able say anything about whether users will be able to have specific empowerment in relation to specific types of content, where they are perhaps more vulnerable if they see it. For example, the needs of a user might be quite different between those relating to self-harm and those relating to eating disorder content or other types of content that we would deem harmful.

On Amendment 182, my noble friend leapt immediately to abusive content coming from unverified users, but, as we have heard, and as I know, having led the House’s inquiry into fraud and digital fraud last year, there will be, and already is, a prevalence of scams. The Bill is cracking down on fraudulent advertisements but, as an anti-fraud measure, being able to see whether an account has been verified would be extremely useful. The view now is that, if this Bill is successful—and we hope it is—in cracking down on fraudulent advertising, then there will be even more reliance on what is called organic reach, which is the use of fake accounts, where verification therefore becomes more important. We have heard from opinion polling that the public want to see which accounts are or are not verified. We have also heard that Amendment 182 is about giving users choice, in making clear whether their accounts are verified; it is not about compelling people to say whether they are verified or not.

As we have heard, this is a direction of travel. I understand that the Government will not want to accept these amendments at this stage, but it is useful to have this debate to see where we are going and what Ofcom will be looking at in relation to these matters. I look forward to hearing what my noble friend the Minister has to say about these amendments.