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.

Online Safety Bill

Lord Stevenson of Balmacara Excerpts

Committee stage
Thursday 25th May 2023 Lords Chamber

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

As ever, I thank all noble Lords who have spoken. I absolutely take, accept and embrace the point that transparency is wholly critical to what we are trying to achieve with the Bill. Indeed, the chandelier of transparency reports should be our shared aim—a greenhouse maybe. I am grateful for everyone’s contributions to the debate. I agree entirely with the views expressed. Transparency is vital in holding companies to account for keeping their users safe online. As has been pointed out, it is also to the benefit of the platforms themselves. Confident as I am that we share the same objectives, I would like to try to reassure noble Lords on a number of issues that have been raised.

Amendments 160A, 160B and 181A in the name of the noble Lord, Lord Knight of Weymouth, seek to require providers to make their transparency reports publicly available, subject to appropriate redactions, and to allow Ofcom to prevent their publication where it deems that the risks posed by drawing attention to illegal content outweigh the benefit to the public of the transparency report. Let me reassure the noble Lord that the framework, we strongly believe, already achieves the aim of those amendments. As set out in Clause 68, Ofcom will specify a range of requirements in relation to transparency reporting in a notice to categories 1, 2A and 2B. This will include the kind of information that is required in the transparency report and the manner in which it should be published. Given the requirement to publish the information, this already achieves the intention of Amendment 160A.

The specific information requested for inclusion within the transparency report will be determined by Ofcom. Therefore, the regulator will be able to ensure that the information requested is appropriate for publication. Ofcom will take into account any risks arising from making the information public before issuing the transparency notice. Ofcom will have separate information-gathering powers, which will enable the regulator to access information that is not suitable to be published in the public domain. This achieves the intention of Amendment 160B. There is also a risk of reducing trust in transparency reporting if there is a mechanism for Ofcom to prevent providers publishing their transparency reports.

Amendment 181A would require Ofcom to issue guidance on what information should be redacted and how this should be done. However, Ofcom is already required to produce guidance about transparency reports, which may include guidance about what information should be redacted and how to do this. It is important to provide the regulator with the flexibility to develop appropriate guidance.

Amendment 165 seeks to expand the information within the transparency reporting requirements to cover the scope of the terms of service set out by user-to-user providers. I very much agree with the noble Lord that it is important that Ofcom can request information about the scope of terms of service, as well as about their application. Our view is that the Bill already achieves this. Schedule 8 sets out the high-level matters about which information may be required. This includes information about how platforms are complying with their duties. The Bill will place duties on user-to-user providers to ensure that any required terms of service are clear and accessible. This will require platforms to set out what the terms of service cover—or, in other words, the scope. While I hope that this provides reassurance on the matter, if there are still concerns in spite of what I have said, I am very happy to look at this. Any opportunity to strengthen the Bill through that kind of clarity is worth looking at.

[Lord Stevenson of Balmacara (Lab)]

I welcome the Minister’s comments. I am interrupting just because this is my amendment rather than my noble friend Lord Knight’s. The word “scope” caused us some disquiet on this Bench when we were trying to work out what we meant by it. It has been fleshed out in slightly different ways around the Chamber, to advantage.

I go back to the original intention—I am sorry for the extensive introduction, but it is to make sure that I focus the question correctly—which was to make sure that we are not looking historically at the terms of reference that have been issued, and whether they are working in a transparency mode, but addressing the question of what is missing or is perhaps not addressed properly. Does the Minister agree that that would be taken in by the word “scope”?

[Viscount Camrose (Con)]

I think I probably would agree, but I would welcome a chance to discuss it further.

Finally, Amendment 229 intends to probe how Ofcom will review the effectiveness of transparency requirements in the Bill. It would require Ofcom to produce reports reviewing the effectiveness of transparency reports and would give the Secretary of State powers to implement any recommendations made by the regulator. While I of course agree with the sentiment of this amendment, as I have outlined, the transparency reporting power is designed to ensure that Ofcom can continuously review the effectiveness of transparency reports and make adjustments as necessary. This is why the Bill requires Ofcom to set out in annual transparency notices what each provider should include in its reports and the format and manner in which it should be presented, rather than putting prescriptive or static requirements in the Bill. That means that Ofcom will be able to learn, year on year, what will be most effective.

Under Clause 145, Ofcom is required to produce its own annual transparency report, which must include a summary of conclusions drawn from providers’ transparency reports, along with the regulator’s view on industry best practice and other appropriate information—I hope and think that goes to some of the points raised by the noble Lord, Lord Allan of Hallam.

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[Lord Clement-Jones (LD)]

I absolutely take what the noble Lord is saying, and I am not saying that the platforms do not have responsibility. Of course they do: the whole Bill is about the platforms taking responsibility with risk assessment, adhering to their terms of service, transparency about how those terms are operating, et cetera. It is purely on the question of whether they need to be reporting that content when it occurs. They have takedown responsibilities for illegal content or content that may be seen by children and so on, but it is about whether they have the duty to report to the police. It may seem a relatively narrow point, but it is quite important that we go with the framework. Many of us have said many times that we regret the absence of “legal but harmful” but, given where we are, we basically have to go with that architecture.

I very much enjoyed listening to the noble Baroness, Lady Bennett. There is no opportunity lost in the course of the Bill to talk about ChatGPT or GPT-4, and that was no exception. It means that we need to listen to how young people are responding to the way that this legislation operates. I am fully in favour of whatever mechanism it may be. It does not need to be statutory, but I very much hope that we do not treat this just as the end of the process but will see how the Bill works out and will listen and learn from experience, and particularly from young people who are particularly vulnerable to much of the content, and the way that the algorithms on social media work.

[Lord Stevenson of Balmacara (Lab)]

My Lords—

[Lord Clement-Jones (LD)]

I am so sorry. With due respect to the noble Lord, Lord Stevenson, the noble Baroness, Lady Bennett, reminded me that his Amendments 202ZA and 210A, late entrants into the miscellaneous group, go very much with the grain that we are trying to get in within the area of encryption. We had quite a long debate about encryption on Clause 110. As ever, the noble Lord has rather cunningly produced something that I think will get us through the eye of the free speech needle. They are two very cunning amendments.

[Lord Stevenson of Balmacara (Lab)]

I thank the noble Lord for that. Free expression, my Lords, not free speech.

[Lord Clement-Jones (LD)]

Freedom of expression.

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[Lord Stevenson of Balmacara (Lab)]

Yes, freedom of expression. That is right.

I will start where the noble Lord, Lord Clement-Jones, finished, although I want to come back and cover other things. This is a very complicated group. I do not think we can do it quickly, as each issue is important and is worth trying to take forward.

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Let me turn now to the cunning amendments from the noble Lord, Lord Stevenson, which seek to introduce special provisions to apply in cases where a notice issued under Clause 110 would involve the monitoring of journalistic material or material identifying journalistic sources. I appreciate the way he has set those out and I am very happy to have the more detailed discussion with the Bill team that he suggested. Let me just say, though, that the Government are fully committed to protecting the integrity of journalistic material and there is no intention that the technologies required under Clause 110 in relation to private communications would identify anything other than child sexual abuse and exploitation content. These powers are subject to strong safeguards to protect the privacy of all users. Any technologies required on private communications must be accredited by Ofcom as being highly accurate in detecting only child sexual exploitation and abuse content. These minimum standards of accuracy will be approved and published by the Secretary of State following advice from Ofcom and will ensure that it is highly unlikely that journalistic material that is not such content would be erroneously flagged or removed.

[Lord Stevenson of Balmacara (Lab)]

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

[Lord Parkinson of Whitley Bay (Con)]

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

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

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

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

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

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

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

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[Lord Clement-Jones (LD)]

My Lords, I am going to be extremely brief given the extremely compelling way that these amendments have been introduced by the noble Baroness, Lady Morgan, and the noble Lord, Lord Griffiths, and contributed to by the noble Baroness, Lady Bull. I thank her for her comments about my noble friend Lady Parminter. I am sure she would have wanted to be here and would have made a very valuable contribution as she did the other day on exactly this subject.

As the noble Baroness, Lady Fox, has illustrated, we have a very different view of risk across this Committee and we are back, in a sense, into that whole area of risk. I just wanted to say that I think we are again being brought back to the very wise words of the Joint Committee. It may sound like special pleading. We keep coming back to this, and the noble Lord, Lord Stevenson, and I are the last people standing on a Thursday afternoon.

We took a lot of evidence in this particular area. We took the trouble to go to Brussels and had a very useful discussion with the Centre on Regulation in Europe and Dr Sally Broughton Micova. We heard a lot about interconnectedness between some of these smaller services and the impact in terms of amplification across other social media sites.

We heard in the UK from some of the larger services about their concerns about the activities of smaller services. You might say “They would say that, wouldn’t they?” but they were pretty convincing. We heard from HOPE not Hate, the Antisemitism Policy Trust and Stonewall, stressing the role of alternative services.

Of course, we know that these amendments today—some of them sponsored by the Mental Health Foundation, as the noble Lord, Lord Griffiths, said, and Samaritans—have a very important provenance. They recognise that these are big problems. I hope that the Minister will think strongly about this. The injunction from the noble Lord, Lord Allan, to consider how all this is going to work in practice is very important. I very much hope that when we come to consider how this works in practical terms that the Minister will think very seriously about the way in which risk is to the fore— the more nuanced approach that we suggested—and the whole way that profiling by Ofcom will apply. I think that is going to be extremely important as well. I do not think we have yet got to the right place in the Bill which deals with these risky sites. I very much hope that the Minister will consider this in the quite long period between now and when we next get together.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a good little debate with some excellent speeches, which I acknowledge. Like the noble Lord, Lord Clement-Jones, I was looking at the Joint Committee’s report. I concluded that one of the first big issues we discussed was how complicated the categorisation seemed in relation to the task that was being set for Ofcom. We comforted ourselves with the thought that if you believe that this is basically a risk-assessment exercise and that all the work Ofcom will subsequently do is driven by its risk assessments and its constant reviewing of them, then the categorisation is bound to fall down because the risks will reveal the things that need to happen.

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[Lord Parkinson of Whitley Bay (Con)]

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

[Lord Stevenson of Balmacara (Lab)]

May I have a postcard?

[Lord Parkinson of Whitley Bay (Con)]

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

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

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

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

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

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

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

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

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

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

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

[Lord Stevenson of Balmacara (Lab)]

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

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

[Lord Parkinson of Whitley Bay (Con)]

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

Online Safety Bill

Lord Stevenson of Balmacara Excerpts

Thursday 25th May 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, alongside others, I very much welcome government Amendment 135A and how the Minister introduced it. But there is a big “but” as regards much of the rest of what he said. I very much welcome that this will be included as a priority offence, and I join other noble Lords in that—but there is still a view out there that women and girls are being short-changed by the Bill. The other day, we had a debate on the Violence Against Women and Girls Code of Practice, and the same feeling about the cyberflashing offence was very much there, which is why I strongly support Amendments 269 and 270, which would alter the nature of Clause 167.

The equivalence between online and offline was mentioned by my noble friend Lady Burt—I also regret that my noble friend Lady Featherstone has not been with us for some time—and she introduced extremely clearly and well that this kind of cyberflashing offence leads to other and worse offences in both the offline and the online worlds, as we have seen.

Like others, I am in debt to Professor McGlynn for her analysis of the proposed offence. We had evidence from UCL and the Bumble survey, and there is of course also the YouGov survey that shows that nearly half of young women aged 18 to 24 have been sent an unwanted penis image—that is an extraordinary figure. So all of the evidence of this offence is there.

We have heard differing views on the offence—the noble Baronesses, Lady Berridge and Lady Stowell, are on the side of the status quo on the nature of the offence. The fact is that the Government’s proposal covers only some cases of cyberflashing, where motivated by a desire to cause “distress” or for “sexual gratification” with recklessness about causing distress.

I am not a criminal lawyer, but, in answer to the noble Baroness, Lady Stowell, you have to show intent beyond reasonable doubt—that is where the onus on the victim arises. There is a very high barrier in a criminal offence. My noble friend made that point clearly, and the analysis of the noble Baroness, Lady Gohir, was absolutely right that, of course, if you make it a criminal offence, where the issue is about consent rather than intent, you can always be more lenient when an offence does not seem so egregious, where there is clear misunderstanding or where there are other mitigating factors—that is what happens under the criminal law.

This is all about proving the motive—that is the real problem; it is technically called mens rea or the intent—so we need a clear message, as my noble friend said. I believe that we are squandering an opportunity here; it could be a real opportunity for the Government to send a much more powerful signal that the Bill is about protecting women and girls, despite the very welcome addition of abuse under Amendment 135A.

The noble Baroness, Lady Berridge, put her point extremely well. She made a very good case for another addition to the armoury of user-empowerment tools. Although I disagree with her about the ambit of the cyberflashing offence, she proposed something which would be extremely useful to add.

We ought to take heed from the noble Baroness, Lady Morgan, given her legal background. She referred to the Law Commission’s rather inconsistent approach. The very welcome proposal to extend the way that revenge porn events will apply seems to be extremely sensible. I am afraid that, in the battle of the professors, I prefer what Professor McGlynn is saying to what Professor Lewis is saying; that is the choice that I have made.

Following the way that the noble Baroness, Lady Gohir, talked about this issue, we need to call men to account. That is something that the Government need to pay heed to.

That is all I want to say on this subject. This is not just a technical aspect—it is not just a question of whether or not we accept the Law Commission’s advice in this particular case—it is about the difficulty that young women, in particular, will find in enforcing this offence, and we need to be very mindful of that.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a very good and well-focused debate. We have focused deeply on the particular issue I will focus on in my speech about why there is a difference in the Government’s approach to what seem to be, on the surface, very similar instances of the evidence we have all been looking at, and are convinced by, that, in some way, the internet, as currently constructed, is gendered against women. Something must be done about that.

I am grateful to the Minister for introducing this group. Amendment 135A is very well-drafted and appropriate for what we are doing. I have very little to comment on it. It is a difficult area, but I am glad that the Government are putting their money where their mouth was on this issue and that we are seeing some action coming forward.

My noble friend Lady Merron would have been speaking to our amendments in this group, but, unfortunately, she has been taken off for some treatment to her leg, which seems to have been slightly twisted. They follow on from the meeting that the Minister mentioned with Professor Lewis from the Law Commission, when she very expertly introduced this whole topic, explaining very carefully, and with great care and concern, the reasons why the Law Commission has proposed, and the Government have accepted, that the new law to be brought in on cyberflashing needs to be different. My problem with that was that it seemed, by the end of it, that the rationale for doing it differently from other offences of a similar nature and type was more to do with the fact that there were good reasons for having the ability to send dick pics—let us call them that, even though it is a horrible term to use.

It is sometimes necessary for pictures to be sent around, and examples of that were given. For example, in a medical situation in which a doctor, perhaps during the Covid epidemic, wanted to know about a patient’s particular problem in the genital area, a picture would be helpful in diagnosis. Sending that should not be made illegal. Other reasons were given. The argument was good, but not sufficient to trump the need to have in place a set of laws relating to the way in which the internet treats women and girls in this dimension that does not come from different directions and is not confusing but complementary.

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

I join all those who have sent our best wishes to the noble Baroness, Lady Featherstone, for a speedy recovery. I am grateful that noble Lords were able to take forward her points in this debate.

As I said at the outset, protecting women and girls online is an objective of this Bill, which is reflected by the number of priority offences we have included that disproportionately affect women and girls. This includes the addition of the controlling or coercive behaviour offence, and I am grateful for the support from across the Committee for that amendment. This, in addition to the new cyberflashing offence and other criminal law reforms, demonstrates our continued commitment to increase the safety of women and girls online.

The amendments tabled by my noble friend Lady Berridge and the noble Baronesses, Lady Featherstone and Lady Gohir, relate to cyberflashing. The new cyberflashing offence, alongside the package of offences in this Bill, will bring significant benefit for women and girls across the UK, too many of whom have been subjected to the distressing behaviour that noble Lords have spoken about in this debate. We share the aim of noble Lords who have spoken in favour of those amendments to ensure that this offence is effective at stopping this behaviour.

Regarding Amendments 269 and 270, I want to reassure your Lordships that the intent-based approach in Clause 167 has been tested extensively both by the Law Commission and subsequently by His Majesty’s Government. The noble Lord, Lord Stevenson, is correct that we do not automatically agree with what it says, but we do take the commission’s expert views very seriously. The Crown Prosecution Service has stated that it has no concerns about using the offence that has been drafted to bring perpetrators to justice. Indeed, it strongly supported the inclusion of the “sexual gratification” element, which would, according to the Crown Prosecution Service, enable it to prosecute this offence more effectively.

The offence will capture many instances of cyberflashing, such as where pictures are sent to strangers via AirDrop in a crowded railway carriage. I agree with the points noble Lords raised about the settings and the simple technological change that, at an operator level, could make a big difference here. We are well aware of the concern set out by the noble Baroness, Lady Burt of Solihull, that an intent-based approach may let perpetrators off the hook if they send images supposedly for a laugh. We do not accept that view. The courts will, in the normal way, consider all the evidence to determine whether the elements of the offence have been made out. It is of course never on the victim to have to prove the perpetrator’s intention; it is for the police to investigate alleged offences and for the Crown Prosecution Service to establish the perpetrator’s intention in court.

I draw noble Lords’ attention to the inclusion of the word “humiliation” in Clause 167. This will catch many supposedly joke motives, since the perverted form of humour in these instances is often derived from the victim’s humiliation, alarm or distress. This offence has been crafted following calls, including by victims’ groups, to include an intention to cause the victim humiliation.

My noble friend Lady Morgan of Cotes said she was unable to attend the briefing we organised with the Law Commission so, for the benefit of those who were not able to join, let me reassure noble Lords that Clause 167 is based on the offence proposed by the Law Commission, which held an extensive public consultation with victims, the police, prosecutors and academics, and was drafted following further engagement with the police and the Crown Prosecution Service.

The Law Commission, as Professor Lewis set out in that briefing for your Lordships, did consider a consent-based approach, and its final report highlights the significant concerns expressed by respondents to its consultation. A consent-based offence, as the commission found, would result in overcriminalisation, capturing behaviour that does not warrant criminal sanction. For example, as Professor Lewis outlined at the meeting, it could capture a patient sending their doctor an image of their genitals for medical reasons. I take the point that the noble Lord, Lord Stevenson, just made interrogating that. The commission found that it would also criminalise misjudged attempts at intimacy where there was, for example, no genuine intention to cause harm or upset. It has looked at these issues.

Requiring a specific intent is not new and is taken in line with other non-contact sexual offences, including “in person” flashing—the offence of exposure. The police and Crown Prosecution Service are very familiar with these offences and with the evidence that is needed in court to prove the required intent. Crucially an offence based on a lack of consent would shift the focus away from the actions and intentions of the perpetrator to the victim and what they may or may not have done. This would be likely to result in a victim’s previous sexual or private behaviour being interrogated in open court. We do not want victims of this behaviour to be put under that sort of pressure. We want the focus to be fully on the perpetrator’s actions and intentions. The provisions in the Bill have been carefully targeted to protect victims from the intrusive and disturbing behaviour that noble Lords have set out, not to subject them to an unnecessary and distressing interrogation of their private lives.

Changing the consent test to reasonable belief that the defendant would have consented, in order to avoid criminalisation, would not work. Applying this test would mean that it would be much easier for genuinely harmful and culpable cyberflashing to escape conviction. For example, it would make it easier for a defendant to make an excuse, such as claiming that they reasonably believed that a person had consented to see a picture because they were on a particular dating app or, as was discussed in the briefing with the Law Commission, claiming that the victim had smiled back at them in a meaningful way on a train. They are not, perhaps, strong defences, but they are not—I am sure—ones that noble Lords would want to encourage through the drafting of this amendment. We are confident that an intent approach is the most appropriate way to frame this offence and that it ensures that the criminal law is workable, so that we can bring perpetrators to justice.

[Lord Stevenson of Balmacara (Lab)]

I am sorry to interrupt the Minister in his flow. Just to go back a little bit, the amendment in the name of the noble Baroness, Lady Featherstone, attempted to resolve the questions about where it was legitimate for material of the nature that he has been describing to be circulated. Would be accept that that approach has some merit? If so, then I go on to ask: is the decision still to go with intent rather than content for reasons other than relating to that particular point?

[Lord Parkinson of Whitley Bay (Con)]

I am sorry, I was slightly distracted by noises off. Would the noble Lord mind repeating his question?

[Lord Stevenson of Balmacara (Lab)]

It is a very narrow point, but it is important in terms of the overall approach that we are taking on this. The Minister very accurately described the reasons that the Law Commission came up with for moving back to an intent-based rather than content-based approach. I wanted to ask him to check whether the wording in the amendment that we signed up to, in the name of the noble Baroness, Lady Featherstone—ably introduced by the noble Baroness, Lady Burt, and spoken to by many people around the Chamber—would cover off those points where there is legitimate reason for this material to be circulated. I used an unfortunate phrase that I will not repeat. Are the Government happy to accept that it is possible to get around that objection by the Law Commission by making legitimate those particular explicit reasons for those pictures being circulated? I make that point only to get an admission at the Dispatch Box that the Government could get round the issue that has been mentioned, but they are still deciding to go for an intent-based approach for other reasons, which the Minister has just adumbrated and which I accept are genuine.

[Lord Clement-Jones (LD)]

It may be helpful to the Minister to just repeat the terms of the amendment itself. If you reverse the point and do not have intent, you would still need to consider

“Whether a belief is reasonable”


which

“is to be determined having regard to all the circumstances, including any steps that A has taken to ascertain whether B consents”.

The noble Lord, Lord Stevenson, has absolutely hit the mark on this. This would not lead to terrible consequences and injustices because of this particular qualification.

[Lord Parkinson of Whitley Bay (Con)]

In brief, we think the Law Commission has it right—

[Lord Stevenson of Balmacara (Lab)]

If the Minister could write to me on the point once he has had advice, or perhaps inspiration from the Box, that would be very helpful.

[Lord Parkinson of Whitley Bay (Con)]

I will certainly do so. It requires flicking through a number of amendments and cross-referencing them with provisions in the Bill. I will certainly do that in slower time and respond.

We think that the Law Commission, which looked at all these issues, including, I think, the questions put by the noble Lord, has done that well. We were satisfied with it. I thought its briefing with Professor Penney Lewis was useful in exploring those issues. We are confident that the offence as drafted is the appropriate one.

My noble friend Lady Morgan and others asked why both the Law Commission and the Government are taking a different approach in relation to intimate image abuse and to cyberflashing. We are taking action to criminalise both, but the Law Commission recommended different approaches in how to criminalise that behaviour to take into account the different actions of the perpetrator in each scenario. Sharing an intimate image of a person without their consent is ipso facto wrongful, as it is a violation of their bodily privacy and sexual autonomy. Sending a genital image is not ipso facto wrongful, as it does not always constitute a sexual intrusion, so greater additional culpability is required for that offence. To give an example, sending a photograph of a naked protestor, even without the consent of the recipient, is not always harmful. Although levels of harm resulting from behaviours may be the same and cause the same levels of stress, the criminal law must consider whether the perpetrator’s behaviour was sufficiently culpable for an offence to have been committed. That is why we think the intent approach is best for cyberflashing but have taken a different approach in relation to intimate image abuse.

Online Safety Bill

Lord Stevenson of Balmacara Excerpts

Committee stage
Tuesday 23rd May 2023 Lords Chamber

Moved by

[Lord Stevenson of Balmacara]

110: Clause 38, page 38, line 24, leave out subsections (2) to (8) and insert—
“(2) Upon receiving the draft code of practice from OFCOM, the Secretary of State must— (a) make a statement confirming they have received the draft code of practice, and(b) lay the draft code of practice before Parliament.(3) Unless the Secretary of State intends to give a direction to OFCOM under section 39(1) in relation to the draft, regulations giving effect to the code of practice may not be laid before Parliament unless the Secretary of State has—(a) consulted each devolved authority on the content of the draft code of practice;(b) produced an impact assessment including, but not limited to, an assessment of the impact of the proposed regulations on—(i) human rights and equalities,(ii) freedom of expression, and(iii) employment and labour; and(c) produced an assessment of the impact of the proposed regulations on children and vulnerable adults.(4) The Secretary of State may not make regulations under this section until any select committee charged by the relevant House of Parliament with scrutinising regulations made under this section has—(a) completed its consideration of the draft code of practice and the impact assessments referred to in subsection (3)(b) and (c), and(b) reported on its 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.(5) The Secretary of State may not lay regulations under this section until they are satisfied that—(a) issues raised by a devolved authority have been resolved, or(b) if they have not been resolved, the Secretary of State has informed Parliament of the steps they intend to take in response to the issues raised.”Member’s explanatory statement
This amendment, which replaces most of the current Clause 38, would require the Secretary of State to publish draft codes of conduct from OFCOM for consideration by relevant committees of both Houses of Parliament.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I rise to move Amendment 110 in my name and thank the noble Lord, Lord Clement-Jones, for his support. This is a complex group of amendments but they are about very significant powers that are supposed to be granted to the Secretary of State in this Bill. We believe that this part of the Bill must be significantly amended before it leaves this House, and while we await the Government’s response to the amendments in my name and that of the noble Baroness, Lady Stowell, I want to make it clear that if we do not see some significant movement from the Government we will return to these issues on Report. As it looks as though we will be having another long hiatus before Report, there is plenty of time for discussion and agreement.

Two House of Lords committees—the Communications and Digital Committee and the Delegated Powers and Regulatory Reform Committee—have called on the Government to remove or amend a number of the clauses engaged by these amendments, and a third, the Constitution Committee, has noted the concerns raised. I think it fair to say that these issues concern all parties and all groups in the House and urgently need addressing. The noble Baroness, Lady Stowell, in her capacity as chair of the Communications and Digital Committee, has a number of amendments very similar to mine to which I and others have signed up, and which I know she will go through in detail. I support the line she and the committee are taking, although I make some additional suggestions in some areas.

The amendments from the noble Lord, Lord Moylan —who I am sad to see is not in his place and who will not therefore be able to participate in this debate—broadly support the thrust of the amendments in this group. Perhaps they do not go quite as far as ours do, but it is certainly nice to have him on our side—for a change. I do not want to delay the Committee as I know many of us will want to discuss the points which will be raised in detail by the noble Baroness, Lady Stowell, so I think the best thing is for me to talk more generally about where we think the Government need to change approach, and I hope my remarks will open up the debate.

Before I do that, I thank the Carnegie Trust—I know a number of noble Lords have received documentation from it—for its detailed work in this area in particular, but it has covered the Bill comprehensively. It has been invaluable and we have also received support from the All-Party Digital Regulation Group, which has been pushing information around as well.

We have mentioned in the past the difficulty of amending the Bill because of the structures and the different way it treats the various types of company likely to be in scope. But, in essence, my amendments would ensure that Ofcom is able to operate as an independent regulator, delivering what is required of it under the Bill, and is not subject to instruction or direction by the Secretary of State except in exceptional circumstances. We are told that these will be restricted mainly to national security issues or public safety, though precisely what those issues are going to be needs spelling out in the Bill.

The Secretary of State should not be able to give Ofcom direction. In the broadcasting regime, there are no equivalent powers. Our press is not regulated in that way. We believe that the right approach is that the Secretary of State should, if he or she wishes, write to Ofcom with non-binding observations when it is thought necessary to do so. It would be for Ofcom to have regard to such letters, but there should be no requirement to act, provided that it operates within its powers as set out in the Bill. It follows that the powers taken by the Secretary of State in Clause 156 to issue directions to Ofcom in special circumstances, in Clause 157 to issue detailed tactical guidance to Ofcom in the exercise of its functions, and in Clause 153, which allows the Secretary of State to make a statement of strategic priorities relating to online safety, are significant threats to the independence of Ofcom, and we believe that they should be deleted. In addition, Clauses 38 and 39 need to be revised.

The independence of media regulators is important and must be preserved as it is at present. That is the norm in most developed democracies. The UK has signed many international statements in this vein, including, as recently as in April 2022 at the Council of Europe, a statement saying that

“media and communication governance should be independent and impartial to avoid undue influence on policy making, discriminatory treatment and preferential treatment of powerful groups, including those with significant political or economic power”.

I hope that when he comes to respond to the debate, the Minister will confirm that he stands by that international agreement that his Government have signed up to.

My second point deals with the other powers given to the Secretary of State in the Online Safety Bill—for example, to specify in regulations the primary priority content harmful to children and priority content harmful to children in Clause 54; to amend the duties on fraudulent advertising in Clause 191; to change the exemption to the regime in Clause 192; and to amend the list of terrorism offences, CSEA offences and other priority offences in Clause 194. Appropriate procedures for the exercise of these powers—ensuring that they are in line with the approach of this group of amendments —need to be set out in the Bill, because the present drafting is, in our view, inadequate. The reliance on conventional secondary legislation approval mechanisms will not be sufficient given the scale and impact of what is in contemplation.

At Second Reading, the Minister said,

“we remain committed to ensuring that Ofcom maintains its regulatory independence, which is vital to the success of this framework … We intend to bring forward two changes to the existing power: first, replacing the ‘public policy’ wording with a defined list of reasons that a direction can be made; and secondly, making it clear that this element of the power can only be used in exceptional circumstances … the framework ensures that Parliament will always have the final say on codes of practice, and that strong safeguards are in place to ensure that the use of this power is transparent and proportionate”.—[Official Report, 1/2/23; cols. 691-2.]

Those are fine words but, unfortunately, we have not yet seen the draft amendments that would give credence to that statement. Can the Minister give us any hint on the timetable?

My third point is that we are also not convinced that the processes currently specified for the approval of the high volume of secondary legislation pursuant to the Bill, including the codes of practice, engage sufficiently with Parliament. As my noble friend Lady Merron said at Second Reading, in our view the Bill suffers from an imbalance around what role Parliament should have in scrutinising the new regime and how changes to the statutory functions will be accommodated in future years. We can all agree that there will certainly be many more such occasions and more legislation in this area in future years.

This is, of course, a skeleton Bill, requiring significant amounts of secondary legislation before it begins to bite. How should Parliament be involved, both in the necessary scrutiny of those codes of practice, which put the regime into practice and define the way in which the regulated companies are to operate, and in anticipating changes that will be required as technology develops? It is to answer this question that I have put down a number of amendments aimed at carving out a role for the Select Committees of the two Houses—or perhaps a new Joint Committee, if that were to be the decision of Parliament. Indeed, that was a recommendation of the pre-legislative scrutiny committee and the Communications and Digital Committee in previous reports.

My Amendment 290, after Clause 197, tries to gather together the instances of powers exercisable by the Secretary of State and provide an additional parliamentary stage each time those powers are exercised. This would require that:

“The Secretary of State may not exercise the powers”


granted under the Bill unless and until

“any select committee charged by the relevant House of Parliament with scrutinising such regulations has … completed its consideration of the draft regulations and … reported on their deliberation to the relevant House”.

I appreciate that this is a major step. Introducing parliamentary scrutiny of this type may mean it takes more time to achieve results in what is already a complex process. Maybe this should be introduced in stages so as not to delay further the measures in the Bill.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

I am happy to continue to discuss it, and I will say a bit more about the other amendments in this group, but I am not able to say much more at this point. I will happily follow this up in discussion with my noble friend, as I know it is an issue of interest to her and other members of your Lordships’ committee.

The noble Lord, Lord Stevenson, asked about our international obligations. As noble Lords noted, the Government have recognised the importance of regulatory independence in our work with international partners, such as the Council of Europe’s declaration on the independence of regulators. That is why we are bringing forward the amendments previously announced in another place. Ensuring that powers of direction can be issued only in exceptional circumstances and for a set of reasons defined in the Bill will ensure that the operational independence of Ofcom is not put at risk. That said, we must strike a balance between parliamentary oversight and being able to act quickly where necessary.

Regarding the amendment tabled by my noble friend Lady Stowell, which calls for all codes which have been altered by a direction to go through the affirmative procedure, as drafted, the negative procedure is used only if a direction is made to a code of practice relating to terrorism or child sexual exploitation or abuse, for reasons of national security or public safety. It is important that the parliamentary process be proportionate, particularly in cases involving national security or public safety, where a code might need to be amended quickly to protect people from harm. We therefore think that, in these cases, the negative procedure is more appropriate.

On timing, the Government are committed to ensuring that the framework is implemented quickly, and this includes ensuring that the codes of practice are in force. The threshold of exceptional circumstances for the power to direct can lead to a delay only in situations where there would otherwise be significant consequences for national security or public safety, or for the other reasons outlined today.

My noble friend Lord Moylan was not able to be here for the beginning of the debate on this group, but he is here now. Let me say a little about his Amendment 254. Under Clause 153, the Secretary of State can set out a statement of the Government’s strategic priorities in relation to matters of online safety. This power is necessary, as future technological changes are likely to shape online harms, and the Government must be able to state their strategic priorities in relation to them. My noble friend’s amendment would go beyond the existing precedent for the statement of strategic priorities in relation to telecommunications, management of the radio spectrum, and postal services outlined in the Communications Act. The Secretary of State must consult Ofcom and other appropriate persons when preparing this statement. This provides the opportunity for widespread scrutiny of a draft statement before it can be designated through a negative parliamentary procedure. We consider that the negative procedure is appropriate, in line with comparable existing arrangements.

Amendment 257 from the noble Lord, Lord Stevenson, seeks to remove the Secretary of State’s power to issue guidance to Ofcom about the exercise of its online safety functions. Issuing guidance of this kind, with appropriate safeguards, including consultation and limitations on its frequency, is an important part of future-proofing the regime. New information—for example, resulting from parliamentary scrutiny or technological developments—may require the Government to clarify the intent of the legislation.

Amendments 258 to 260 would require the guidance to be subject to the affirmative procedure in Parliament. Currently, Ofcom must be consulted, and any guidance must be laid before Parliament. The Bill does not subject the guidance to a parliamentary procedure because the guidance does not create any statutory requirements, and Ofcom is required only to have had regard to it. We think that remains the right approach.

The noble Lord, Lord Stevenson, has made clear his intention to question Clause 156, which grants the Secretary of State the power to direct Ofcom’s media literacy activity only in special circumstances. This ensures that the regulatory framework is equipped to respond to significant future threats—for example, to the health or safety of the public, or to national security. I have already set out, in relation to other amendments, why we think it is right that the Secretary of State can direct Ofcom in these circumstances.

The delegated powers in the Bill are crucial to ensuring that the regulatory regime keeps pace with changes in this area. Amendment 290 from the noble Lord, Lord Stevenson, would go beyond the existing legislative process for these powers, by potentially providing for additional committees to be, in effect, inserted into the secondary legislative process. Established committees themselves are able to decide whether to scrutinise parts of a regime in more detail, so I do not think they need a Parkinson rule to do that.

Noble Lords have expressed a common desire to see this legislation implemented as swiftly as possible, so I hope they share our wariness of any amendments which could slow that process down. The process as envisaged in this amendment is an open-ended one, which could delay implementation. Of course, however, it is important that Parliament is able to scrutinise the work of the regulator. Like most other regulators, Ofcom is accountable to Parliament on how it exercises its functions. The Secretary of State is required to present its annual report and accounts before both Houses. Ministers from Scotland, Wales and Northern Ireland must also lay a copy of the report before their respective Parliament or Assembly. Moreover, the officers of Ofcom can be required to appear before Select Committees to answer questions about its operations on an annual basis. Parliament will also have a role in approving a number of aspects of the regulatory framework through its scrutiny of both the primary and secondary legislation. This will include the priority categories for harms and Ofcom’s codes of practice.

More broadly, we want to ensure that this ground-breaking legislation has the impact we intend. Ongoing parliamentary scrutiny of it will be crucial to help to ensure that. There is so much expertise in both Houses, and it has already helped to improve this legislation, through the Joint Committee on the draft Bill, the DCMS Select Committee in another place and, of course, your Lordships’ Communications and Digital Committee.

As my noble friend Lady Stowell said, we must guard against fragmentation and duplication, which we are very mindful of. Although we do not intend to legislate for a new committee—as I set out on previous occasions, including at Second Reading and before the Communications and Digital Committee—we remain happy to discuss possible mechanisms for oversight to ensure that we make best use of the expertise in both Houses of Parliament so that the Bill delivers what we want. With that, I hope that Members of the Committee will be happy to continue the discussions in this area and not press their amendments.

[Lord Stevenson of Balmacara (Lab)]

I am grateful to the noble Lord for his comprehensive response and for the welcome change in tone and the openness to further debate and discussions. I thank all those who spoke in the debate. The noble Baroness, Lady Harding, was right: we are getting into a routine where we know roughly where our places are and, if we have contributions to make, we make them in the right order and make them comprehensive. We did our bit quite well, but I am afraid that the Minister’s response made me a bit confused. As I said, I welcome the change of tone, the sense of engagement with some of the issues and the ability to meet to discuss ways forward in some of those areas. But he then systematically and rather depressingly shut off just about everything that I thought we were going to discuss. I may be overstating that, so I will read Hansard carefully to make sure that there are still chinks of light in his hitherto impenetrable armour. I really must stop using these metaphors— I thought that the noble Baroness, Lady Harding, had managed to get me off the hook with her question about whether we were an island of concrete rock, and about whether the boat was going to end up in the stormy sea that we were creating. I decided that I could not follow that, so I will not.

We ought to take forward and address three things, which I will briefly go through in the response. One that we did not nail down was the good point made by the noble Baroness, Lady Kidron, that we had focused on regulatory structures in the form of set bodies relating—or not relating—to parliamentary procedures and to Ministers and their operations. She pointed out that, actually, the whole system has a possible drag effect that we also need to think about. I note that good point because we probably need a bit of time to think about how that would work in the structures that come forward.

The noble Lord, Lord Allan, said that we are trying to look at the changing of the accountability model. I disagree with the word “changing” because we are not trying to change anything; we have a model that works, but the new factor that we are trying to accommodate is the intensity of interaction and, as we said, the amplification that comes from the internet. I worry that this was not being picked up enough in the Minister’s response, but we will pick it up later and see if we can get through it.

The three points I wanted to make sure of were as follows. Following the line taken by the noble Baroness, Lady Stowell, one point is on trying to find a proper balance between the independence of the regulator; the Secretary of State’s right, as an elected leader of this aspect of the Government, to make recommendations and proposals to that regulator on how the system can be better; and Parliament’s ability to find a place in that structure, which is still eluding us a little, so we will need to spend more time on it. There is enough there to be reassured that we will find a way of balancing the independence of the regulator and the role of the Secretary of State. It does not need as many mentions in the legislation as it currently has. There is clearly a need for the Secretary of State to be able to issue direction in cases of national security et cetera—but it is the “et cetera” that I worry about: what are these instances? Until they are nailed down and in the Bill, there has to be a question about that.

--- Later in debate ---

[Baroness Stowell of Beeston (Con)]

My Lords, about half an hour ago I decided I would not speak, but as we have now got to this point, I thought I might as well say what I was going to say after all. I reassure noble Lords that in Committee it is perfectly permissible to speak after the winder, so no one is breaking any procedural convention. That said, I will be very brief.

My first purpose in rising is to honour a commitment I made last week when I spoke against the violence against women and girls code. I said that I would none the less be more sympathetic to and supportive of stronger restrictions preventing child access to pornography, so I want to get my support on the record and honour that commitment in this context.

My noble friend Lady Harding spoke on the last group about bringing our previous experiences to bear when contributing to some of these issues. As I may have said in the context of other amendments earlier in Committee, as a former regulator, I know that one of the important guiding principles is to ensure that you regulate for a reason. It is very easy for regulators to have a set of rules. The noble Baroness, Lady Kidron, referred to rules of the road for the tech companies to follow. It is very easy for regulators to examine whether those rules are being followed and, having decided that they have, to say that they have discharged their responsibility. That is not good enough. There must be a result, an outcome from that. As the noble Lord, Lord Allan, emphasised, this must be about outcomes and intended benefits.

I support making it clear in the Bill that, as my noble friend Lady Harding said, we are trying to prevent, disproportionately, children accessing pornography. We will do all we can to ensure that it happens, and that should be because of the rules being in place. Ofcom should be clear on that. However, I also support a proportionate approach to age assurance in all other contexts, as has been described. Therefore, I support the amendments tabled by the noble Baroness, Lady Kidron, and my noble friend Lord Bethell, and the role my noble friend Lady Harding has played in arriving at a pragmatic solution.

[Lord Stevenson of Balmacara (Lab)]

My Lords, it is a privilege to be in your Lordships’ House, and on some occasions it all comes together and we experience a series of debates and discussions that we perhaps would never have otherwise reached, and at a level which I doubt could be echoed anywhere else in the world. This is one of those days. We take for granted that every now and again, we get one of these rapturous occasions when everything comes together, but we forget the cost of that. I pay tribute, as others have, to the noble Baroness, Lady Kidron. She has worked so hard on this issue and lots of other issues relating to this Bill and has exhausted herself more times than is right for someone of her still youthful age. I am very pleased that she is going off on holiday and will not be with us for a few days; I wish her well. I am joking slightly, but I mean it sincerely when I say that we have had a very high-quality debate. That it has gone on rather later than the Whips would have wanted is tough, because it has been great to hear and be part of. However, I will be brief.

It was such a good debate that I felt a tension, in that everybody wanted to get in and say what they wanted to say be sure they were on the record. That can sometimes be a disaster, because everyone repeats everything, but as the noble Baroness, Lady Harding, said, we know our roles, we know what to say and when to say it, and it has come together very nicely. Again, we should congratulate ourselves on that. However, we must be careful about something which we keep saying to each other but sometimes do not do. This is a Bill about systems, not content. The more that we get into the content issues, the more difficult it is to remember what the Bill can do and what the regulator will be able to do if we get the Bill to the right place. We must be sure about that.

I want to say just a few things about where we need to go with this. As most noble Lords have said, we need certainty: if we want to protect our children, we have to be able to identify them. We should not be in any doubt about that; there is no doubt that we must do it, whatever it takes. The noble Lord, Lord Allan, is right to say that we are in the midst of an emerging set of technologies, and there will be other things coming down the line. The Bill must keep open to that; it must not be technology-specific, but we must be certain of what this part is about, and it must drill down to that. I come back to the idea of proportionality: we want everybody who is 18 or under to be identifiable as such, and we want to be absolutely clear about that. I like the idea that this should be focused on the phones and other equipment we use; if we can get to that level, it will be a step forward, although I doubt whether we are there yet.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

As the noble Baroness, Lady Kidron, set out at the beginning of this debate, the amendments in this group have involved extensive discussions among Members in both Houses of Parliament, who sit on all sides of both Houses. I am very grateful for the way noble Lords and Members in another place have done that. They have had those preliminary discussions so that our discussions in the debate today and in preparation for it could be focused and detailed. I pay particular tribute to the noble Baroness, Lady Kidron, and my noble friends Lord Bethell and Lady Harding, who have been involved in extensive discussions with others and then with us in government. These have been very helpful indeed; they continue, and I am happy to commit to their continuing.

Age-assurance technologies will play an important role in supporting the child safety duties in this Bill. This is why reference is made to them on the face of the Bill—to make it clear that the Government expect these measures to be used for complying with the duties to protect children from harmful content and activity online. Guidance under Clause 48 will already cover pornographic content. While this is not currently set out in the legislation, the Government intend, as noble Lords know, to designate pornographic content as a category of primary priority content which is harmful to children. As I set out to your Lordships’ House during our debate on harms to children, we will amend the Bill on Report to list the categories of primary and primary priority content on the face of the Bill.

I am very grateful to noble Lords for the engagement we have had on some of the points raised in Amendments 142 and 306 in recent weeks. As we have been saying in those discussions, the Government are confident that the Bill already largely achieves the outcomes sought here, either through existing provisions in it or through duties in other legislation, including data protection legislation, the Human Rights Act 1998 and the Equality Act 2010. That is why we think that re-stating duties on providers which are already set out in the Bill, or repeating duties set out in other legislation, risks causing uncertainty, and why we need to be careful about imposing specific timelines on Ofcom by which it must produce age-assurance guidance. It is essential that we protect Ofcom’s ability robustly to fulfil its consultation duties for the codes of practice. If Ofcom is given insufficient time to fulfil these duties, the risk of legal challenge being successful is increased.

I welcome Ofcom’s recent letter to your Lordships, outlining its implementation road map, which I hope provides some reassurance directly from the regulator on this point. Ofcom will prioritise protecting children from pornography and other harmful content. It intends to publish, this autumn, draft guidance for Part 5 pornography duties and draft codes of practice for Part 3 illegal content duties, including for child sexual exploitation and abuse content. Draft codes of practice for children’s safety duties will follow next summer. These elements of the regime are being prioritised ahead of others, such as the category 1 duties, to reflect the critical importance of protecting children.

Although we believe that the Bill already largely achieves the outcomes sought, we acknowledge the importance of ensuring that there are clear principles for Ofcom to apply when recommending or requiring the use of age-assurance technologies. I am happy to reassure noble Lords that the Government will continue to consider this further and are happy to continue our engagement on this issue, although any amendment must be made in a way that sits alongside existing legislation and within the framework of the Bill.

I turn to Amendments 161 and 183. First, I will take the opportunity to address some confusion about the requirements in Parts 3 and 5 of the Bill. The Bill ensures that companies must prevent children accessing online pornography, regardless of whether it is regulated in Part 3 or Part 5. The Government are absolutely clear on this point; anything less would be unacceptable. The most effective approach to achieving this is to focus on the outcome of preventing children accessing harmful content, which is what the Bill does. If providers do not prevent children accessing harmful content, Ofcom will be able to bring enforcement action against them.

I will address the point raised by my noble friend Lord Bethell about introducing a standard of “beyond reasonable doubt” for age verification for pornography. As my noble friend knows, we think this a legally unsuitable test which would require Ofcom to determine the state of mind of the provider, which would be extremely hard to prove and would therefore risk allowing providers to evade their duties. A clear, objective duty is the best way to ensure that Ofcom can enforce compliance effectively. The Bill sets clear outcomes which Ofcom will be able to take action on if these are not achieved by providers. A provider will be compliant only if it puts in place systems and processes which meet the objective requirements of the child safety duties.

The provisions in the Bill on proportionality are important to ensure that the requirements in the child safety duties are tailored to the size and capacity of providers. Smaller providers or providers with less capacity are still required to meet the child safety duties where their services pose a risk to children. They will need to put in place sufficiently stringent systems and processes that reflect the level of risk on their services and will need to make sure these systems and processes achieve the required outcomes of the child safety duties.

The Government expect companies to use age-verification technologies to prevent children accessing services which pose the highest risk of harm to children, such as online pornography. However, companies may use another approach if it is proportionate to the findings of the child safety risk assessment and a provider’s size and capacity. This is an important element to ensure that the regulatory framework remains risk-based and proportionate.

Age verification may not always be the most appropriate or effective approach for user-to-user companies to comply with their duties. For example, if a user-to-user service such as a social medium does not allow—

[Lord Stevenson of Balmacara (Lab)]

I am sorry to interrupt. The Minister said that he would bear in mind proportionality in relation to size and capacity. Is that not exactly the point that the noble Baroness, Lady Harding, was trying to make? In relation to children, why will that be proportionate? A single child being damaged in this way is too much.

[Lord Parkinson of Whitley Bay (Con)]

The issue was in relation to a provider’s size and capacity; it is an issue of making sure it is effective and enforceable, and proportionate to the size of the service in question. It may also not be the most effective approach for companies to follow to comply with their duties. If there is a company such as a user-to-user service in social media that says it does not allow pornography under its terms of service, measures such as content moderation and user reporting might be more appropriate and effective for protecting children than age verification in those settings. That would allow content to be better detected and taken down, while—

[Lord Stevenson of Balmacara (Lab)]

I understand that, but it is an important point to try to get on the record. It is an outcome-based solution that we are looking for, is it not? We are looking for zero activity where risks to children are there. Clearly, if the risk assessment is that there is no risk that children can be on that site, age verification may not be required— I am extending it to make a point—but, if there is a risk, we need to know that the outcome of that process will be zero. That is my point, and I think we should reflect on that.

[Lord Parkinson of Whitley Bay (Con)]

I am very happy to, and the noble Lord is right that we must be focused on the outcomes here. I am very sympathetic to the desire to make sure that providers are held to the highest standards, to keep children protected from harmful content online.

Online Safety Bill

Lord Stevenson of Balmacara Excerpts

Committee stage
Tuesday 16th May 2023 Lords Chamber

Moved by

[Lord Stevenson of Balmacara]

56: After Clause 17, insert the following new Clause—
“OFCOM reviews of complaints systems
(1) Within the period of one year beginning on the day on which this Act is passed, and annually thereafter, OFCOM must review the workings of the complaints systems set up by regulated companies under section 17 (duties about complaints procedures), as to—(a) their effectiveness;(b) their cost and efficiency; and(c) such other matters as seem appropriate.(2) In undertaking the reviews under subsection (1), OFCOM may take evidence from such bodies and individuals as it considers appropriate.(3) If OFCOM determines from the nature of the complaints being addressed, and the volumes of such complaints, that systems established under section 17 are not functioning as intended, it may establish an online safety ombudsman with the features outlined in subsections (4) to (8), with the costs of this service being met from the levy on regulated companies.(4) The purpose of the online safety ombudsman is to provide an impartial out-of-court procedure for the resolution of any dispute between—(a) a user of a regulated user-to-user service, or a nominated representative for that user, and(b) the regulated service provider,in cases where complaints made under processes which are compliant with section 17 have not, in the view of the user (or their representative), been adequately addressed.(5) The ombudsman must allow for a user (or their representative) who is a party to such a dispute to refer their case to the ombudsman if they are of the view that any feature or conduct of one or more provider of a regulated user-to-user service, which is relevant to that dispute, presents (or has presented) a material risk of—(a) significant or potential harm;(b) contravening a user’s rights, as set out in the Human Rights Act 1998, including freedom of expression; or(c) failure to uphold terms of service.(6) The ombudsman may make special provision for children, including (but not limited to) prioritisation of—(a) relevant provisions under the United Nations Convention on the Rights of the Child; or(b) a child’s physical, emotional or psychological state.(7) The ombudsman must have regard to the desirability of any dispute resolution service provided by the ombudsman being— (a) free;(b) easy to use, including (where relevant) taking into account the needs of vulnerable users and children;(c) effective and timely;(d) fair and flexible, taking into account different forms of technology and the unique needs of different types of user; and(e) transparent.(8) The Secretary of State must ensure that use of any dispute resolution service provided by the ombudsman does not affect the ability of a user (or their representative) to bring a claim in civil proceedings.”Member’s explanatory statement
This new Clause would require Ofcom to conduct regular reviews of the effectiveness of complaints procedures under Clause 17. If Ofcom were of the view that such procedures were not functioning effectively, they would be able to establish an online safety ombudsman with the features outlined in subsections (4) to (8) of the Clause.

[Lord Stevenson of Balmacara (Lab)]

My Lords, Amendment 56 proposes a pathway towards setting up an independent ombudsman for the social media space. It is in my name, and I am grateful to the noble Lord, Lord Clement-Jones, for his support. For reasons I will go into, my amendment is a rather transparent and blatant attempt to bridge a gap with the Government, who have a sceptical position on this issue, and I hope that the amendment in its present form will prove more attractive to them than our original proposal.

At the same time, the noble Baroness, Lady Newlove, has tabled an amendment on this issue, proposing an independent appeals mechanism

“to provide impartial out of court resolutions for individual users of regulated services”.

Given that this is almost exactly what I want to see in place—as was set out in my original amendment, which was subsequently rubbished by the Government—I have also signed the noble Baroness’s amendment, and I very much look forward to her speech. The Government have a choice.

The noble Baroness, Lady Fox, also has amendments in this group, although they are pointing in a slightly different direction. I will not speak to them at this point in the proceedings, although I make it absolutely clear that, while I look forward to hearing her arguments —she is always very persuasive—I support the Bill’s current proposals on super-complaints.

Returning to the question of why we think the Bill should make provision for an independent complaints system or ombudsman, I suppose that, logically, we ought first to hear the noble Baroness, Lady Newlove, then listen to the Government’s response, which presumably will be negative. My compromise amendment could then be considered and, I hope, win the day with support from all around the Committee—in my dreams.

We have heard the Government’s arguments already. As the Minister said in his introduction to the Second Reading debate all those months ago on 1 February 2023, he was unsympathetic. At that time, he said:

“Ombudsman services in other sectors are expensive, often underused and primarily relate to complaints which result in financial compensation. We find it difficult to envisage how an ombudsman service could function in this area, where user complaints are likely to be complex and, in many cases, do not have the impetus of financial compensation behind them”.—[Official Report, 1/2/23; col. 690.]


Talk about getting your retaliation in first.

My proposal is based on the Joint Committee’s unanimous recommendation:

“The role of the Online Safety Ombudsman should be created to consider complaints about actions by higher risk service providers where either moderation or failure to address risks leads to … demonstrable harm (including to freedom of expression) and recourse to other routes of redress have not resulted in a resolution”.


The report goes on to say that there could

“be an option in the Bill to extend the remit of the Ombudsman to lower risk providers. In addition … the Ombudsman would as part of its role i) identify issues in individual companies and make recommendations to improve their complaint handling and ii) identify systemic industry wide issues and make recommendations on regulatory action needed to remedy them. The Ombudsman should have a duty to gather data and information and report it to Ofcom. It should be an ‘eligible entity’ to make super-complaints”

possible. It is a very complicated proposal. Noble Lords will understand from the way the proposal is framed that it would provide a back-up to the primary purpose of complaints, which must be to the individual company and the service it is providing. But it would be based on a way of learning from experience, which it would build up as time went on.

I am sure that the noble Lord, Lord Clement-Jones, will flesh out the Joint Committee’s thinking on this issue when he comes to speak, but I make the point that other countries preparing legislation on online safety are in fact building in independent complaints systems; we are an outlier on this. Australia, Canada and others have already legislated. Another very good example nearer to hand is in Ireland. We are very lucky to have with us today the noble Baroness, Lady Kidron, a member of the expert panel whose advice to the Irish Government to set up such a system in her excellent report in May 2022 has now been implemented. I hope that she will share her thoughts about these amendments later in the debate.

Returning to the Government’s reservations about including an ombudsman service in the Bill, I make the following points based on my proposals in Amendment 56. There need not be any immediate action. The amendment as currently specified requires Ofcom to review complaints systems set up by the companies under Clause 17 as to their effectiveness and efficiency. It asks Ofcom to take other evidence into account and then, and only then, to take the decision of whether to set up an ombudsman system. If there were no evidence of a need for such a service, it would not happen.

As for the other reservations raised by the Minister when he spoke at Second Reading, he said:

“Ombudsman services in other sectors are expensive”.


We agree, but we assume that this would be on a cost recovery model, as other Ofcom services are funded in that way. The primary focus will always be resolving complaints about actions or inactions of particular companies in the companies’ own redress systems, and Ofcom can always keep that under review.

He said that they are “often underused”. Since we do not know at the start what the overall burden will be, we think that the right solution is to build up slowly and let Ofcom decide. There are other reasons why it makes sense to prepare for such a service, and I will come to these in a minute.

He said that other ombudsman services

“primarily relate to complaints which result in financial compensation”.

That is true, but the evidence from other reports, and that we received in the Joint Committee, was that most complainants want non-financial solutions: they want egregious material taken down or to ensure that certain materials are not seen. They are not after the money. Where a company is failing to deliver on those issues in their own complaints system, to deny genuine complainants an appeal to an independent body seems perverse and not in accordance with natural justice.

He said that

“user complaints are likely to be complex”.—[Official Report, 1/2/23; col. 690.]

Yes, they probably are, but that seems to be an argument for an independent appeals body, not against it.

To conclude, we agree that Ofcom should not be the ombudsman and that the right approach is for Ofcom to set up the system as and when it judges that it would be appropriate. We do not want Ofcom to be swamped with complaints from users of regulated services, who, for whatever reason, have not been satisfied by the response of the individual companies or to complex cases, or seek system-wide solutions. But Ofcom needs to know what is happening on the ground, across the sector, as well as in each of the regulated companies, and it needs to be kept aware of how the system as a whole is performing. The relationship between the FCA and the Financial Ombudsman Service is a good model here. Indeed, the fact that some of the responsibilities to be given to Ofcom in the Bill will give rise to complaints to the FOS suggests that there would be good sense in aligning these services right from the start.

We understand that the experience from Australia is that the existence of an independent complaints function can strengthen the regulatory functions. There is also evidence that the very existence of an independent complaints mechanism can provide reassurances to users that their online safety is being properly supported. I beg to move.

[Baroness Newlove (Con)]

My Lords, this is the first time that I have spoken in Committee. I know we have 10 days, but it seems that we will go even further because this is so important. I will speak to Amendments 250A and 250B.

I thank the noble Lords, Lord Russell of Liverpool and Lord Stevenson of Balmacara, and, of course— if I may be permitted to say so—the amazing noble Baroness, Lady Kidron, who is an absolute whizz on this, for placing their names on these amendments, as well as the 5Rights Foundation, the Internet Watch Foundation and the UK Safer Internet Centre for their excellent briefings. I have spoken to these charities, and the work they do is truly amazing. I do not think that the Bill will recognise just how much time and energy they give to support families and individuals. Put quite simply, we can agree that services’ internal complaint mechanisms are failing.

Let me tell your Lordships about Harry. Harry is an autistic teenager who was filmed by a member of the public in a local fast-food establishment when he was dysregulated and engaging in aggressive behaviour. This footage was shared out of context across social media, with much of the response online labelling Harry as a disruptive teenager who was engaging in unacceptable aggression and vandalising public property. This was shared thousands of times over the course of a few weeks. When Harry and his mum reported it to the social media platforms, they were informed that it did not violate community guidelines and that there was a public interest in the footage remaining online. The family, quite rightly, felt powerless. Harry became overwhelmed at the negative response to the footage and the comments made about his behaviour. He became withdrawn and stopped engaging. He then tried to take his own life.

--- Later in debate ---

[Viscount Camrose (Con)]

I stress again that the period in question is two years not three.

[Lord Stevenson of Balmacara (Lab)]

Is it two to five?

--- Later in debate ---

[Viscount Camrose (Con)]

The answer to the noble Lord’s question is that the super-complaint is not a mechanism for individuals to complain on an individual basis and seek redress.

[Lord Stevenson of Balmacara (Lab)]

This is getting worse and worse. I am tempted to suggest that we stop talking about this and try to, in a smaller group, bottom out what we are doing. I really think that the Committee deserves a better response on super-complaints than it has just heard.

As I understood it—I am sure that the noble Baroness, Lady Kidron, is about to make the same point—super-complaints are specifically designed to take away the pressure on vulnerable and younger persons to have responsibility only for themselves in bringing forward the complaint that needs to be resolved. They are a way of sharing that responsibility and taking away the pressure. Is the Minister now saying that that is a misunderstanding?

[Viscount Camrose (Con)]

I have offered a meeting; I am very happy to host the meeting to bottom out these complaints.

[Viscount Camrose (Con)]

As I said, I am very happy to hold the meeting. We are giving users greater protection through the Bill, and, as agreed, we can discuss individual routes to recourse.

I hope that, on the basis of what I have said and the future meeting, noble Lords have some reassurance that the Bill’s complaint mechanisms will, eventually, be effective and proportionate, and feel able not to press their amendments.

[Lord Stevenson of Balmacara (Lab)]

I am very sorry that I did not realise that the Minister was responding to this group of amendments; I should have welcomed him to his first appearance in Committee. I hope he will come back—although he may have to spend a bit of time in hospital, having received a pass to speak on this issue from his noble friend.

This is a very complicated Bill. The Minister and I have actually talked about that over tea, and he is now learning the hard lessons of what he took as a light badinage before coming to the Chamber today. However, we are in a bit of a mess here. I was genuinely trying to get an amendment that would encourage the department to move forward on this issue, because it is quite clear from the mood around the Committee that something needs to be resolved here. The way the Government are approaching this is by heading towards a brick wall, and I do not think it is the right way forward.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, this is unfamiliar territory for me, but the comprehensive introduction of the noble Baroness, Lady Fraser, has clarified the issue. I am only disappointed that we had such a short speech from the noble Lord, Lord Foulkes—uncharacteristic, perhaps I could say—but it was good to hear from the noble and learned Lord, Lord Hope, on this subject as well. The noble Baroness’s phrase “devolution deficit” is very useful shorthand for some of these issues. She has raised a number of questions about the Secretary of State’s powers under Clause 53(5)(c): the process, the method of consultation and whether there is a role for Ofcom’s national advisory committees. Greater transparency in order to understand which offences overlap in all this would be very useful. She deliberately did not go for one solution or another, but issues clearly arise where the thresholds are different. It would be good to hear how the Government are going to resolve this issue.

[Lord Stevenson of Balmacara (Lab)]

My Lords, it is a pity that we have not had the benefit of hearing from the Minister, because a lot of his amendments in this group seem to bear on some of the more generic points made in the very good speech by the noble Baroness, Lady Fraser. I assume he will cover them, but I wonder whether he would at least be prepared to answer any questions people might come back with—not in any aggressive sense; we are not trying to scare the pants off him before he starts. For example, the points made by the noble Lord, Lord Clement-Jones, intrigue me.

I used to have responsibility for devolved issues when I worked at No. 10 for a short period. It was a bit of a joke, really. Whenever anything Welsh happened, I was immediately summoned down to Cardiff and hauled over the coals. You knew when you were in trouble when they all stopped speaking English and started speaking Welsh; then, you knew there really was an issue, whereas before I just had to listen, go back and report. In Scotland, nobody came to me anyway, because they knew that the then Prime Minister was a much more interesting person to talk to about these things. They just went to him instead, so I did not really learn very much.

I noticed some issues in the Marshalled List that I had not picked up on when I worked on this before. I do not know whether the Minister wishes to address this—I do not want to delay the Committee too much—but are we saying that to apply a provision in the Bill to the Bailiwick of Guernsey or the Isle of Man, an Order in Council is required to bypass Parliament? Is that a common way of proceeding in these places? I suspect that the noble and learned Lord, Lord Hope, knows much more about this than I do—he shakes his head—but this is a new one on me. Does it mean that this Parliament has no responsibility for how its laws are applied in those territories, or are there other procedures of which we are unaware?

My second point again picks up what the noble Lord, Lord Clement-Jones, was saying. Could the Minister go through in some detail the process by which a devolved authority would apply to the Secretary of State—presumably for DSIT—to seek consent for a devolved offence to be included in the Online Safety Bill regime? If this is correct, who grants to what? Does this come to the House as a statutory instrument? Is just the Secretary of State involved, or does it go to the Privy Council? Are there other ways that we are yet to know about? It would be interesting to know.

To echo the noble Lord, Lord Clement-Jones, we probably do need a letter from the Minister, if he ever gets this cleared, setting out exactly how the variation in powers would operate across the four territories. If there are variations, we would like to know about them.

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

My Lords, I am very grateful to my noble friend Lady Fraser of Craigmaddie for her vigilance in this area and for the discussion she had with the Bill team, which they and I found useful. Given the tenor of this short but important debate, I think it may be helpful if we have a meeting for other noble Lords who also want to benefit from discussing some of these things in detail, and particularly to talk about some of the issues the noble Lord, Lord Stevenson of Balmacara, just raised. It would be useful for us to talk in detail about general questions on the operation of the law before we look at this again on Report.

In a moment, I will say a bit about the government amendments which stand in my name. I am sure that noble Lords will not be shy in taking the opportunity to interject if questions arise, as they have not been shy on previous groups.

I will start with the amendments tabled by my noble friend Lady Fraser. Her Amendment 58 seeks to add reference to the Human Rights Act 1998 to Clause 18. That Act places obligations on public authorities to act compatibly with the European Convention on Human Rights. It does not place obligations on private individuals and companies, so it would not make sense for such a duty on internet services to refer to the Human Rights Act.

Under that Act, Ofcom has obligations to act in accordance with the right to freedom of expression under Article 10 of the European Convention on Human Rights. As a result, the codes that Ofcom draws up will need to comply with the Article 10 right to freedom of expression. Schedule 4 to the Bill requires Ofcom to ensure that measures which it describes in a code of practice are designed in light of the importance of protecting the right of users’

“freedom of expression within the law”.

Clauses 44(2) and (3) provide that platforms will be treated as complying with their freedom of expression duty if they take the recommended measures that Ofcom sets out in the codes. Platforms will therefore be guided by Ofcom in taking measures to comply with its duties, including safeguards for freedom of expression through codes of practice.

My noble friend’s Amendment 136 seeks to add offences under the Hate Crime and Public Order (Scotland) Act 2021 to Schedule 7. Public order offences are already listed in Schedule 7 to the Bill, which will apply across the whole United Kingdom. This means that all services in scope will need proactively to tackle content that amounts to an offence under the Public Order Act 1986, regardless of where the content originates or where in the UK it can be accessed.

The priority offences list has been developed with the devolved Administrations, and Clause 194 outlines the parliamentary procedures for updating it. The requirements for consent will be set out in the specific subordinate legislation that may apply to the particular offence being made by the devolved authorities—that is to say, they will be laid down by the enabling statutes that Parliament will have approved.

Amendment 228 seeks to require the inclusion of separate analyses of users’ online experiences in England, Wales, Scotland and Northern Ireland in Ofcom’s transparency reports. These transparency reports are based on the information requested from category 1, 2A and 2B service providers through transparency reporting. I assure my noble friend that Ofcom is already able to request country-specific information from providers in its transparency reports. The legislation sets out high-level categories of information that category 1, 2A and 2B services may be required to include in their transparency reports. The regulator will set out in a notice the information to be requested from the provider, the format of that information and the manner in which it should be published. If appropriate, Ofcom may request specific information in relation to each country in the UK, such as the number of users encountering illegal content and the incidence of such content.

Ofcom is also required to undertake consultation before producing guidance about transparency reporting. In order to ensure that the framework is proportionate and future-proofed, however, it is vital to allow the regulator sufficient flexibility to request the types of information that it sees as relevant, and for that information to be presented by providers in a manner that Ofcom has deemed to be appropriate.

Similarly, Amendment 225A would require separate analyses of users’ online experiences in England, Wales, Scotland and Northern Ireland in Ofcom’s research about users’ experiences of regulated services. Clause 141 requires that Ofcom make arrangements to undertake consumer research to ascertain public opinion and the experiences of UK users of regulated services. Ofcom will already be able to undertake this research on a country-specific basis. Indeed, in undertaking its research and reporting duties, as my noble friend alluded to, Ofcom has previously adopted such an approach. For instance, it is required by the Communications Act 2003 to undertake consumer research. While the legislation does not mandate that Ofcom conduct and publish nation-specific research, Ofcom has done so, for instance through its publications Media Nations and Connected Nations. I hope that gives noble Lords some reassurance of its approach in this regard. Ensuring that Ofcom has flexibility in carrying out its research functions will enable us to future-proof the regulatory framework, and will mean that its research activity is efficient, relevant and appropriate.

I will now say a bit about the government amendments standing in my name. I should, in doing so, highlight that I have withdrawn Amendments 304C and 304D, previously in the Marshalled List, which will be replaced with new amendments to ensure that all the communications offences, including the new self-harm offence, have the appropriate territorial extent when they are brought forward. They will be brought forward as soon as possible once the self-harm offence has been tabled.

Amendments 267A, 267B, 267C, 268A, 268B to 268G, 271A to 271D, 304A, 304B and 304E are amendments to Clauses 160, 162, 164 to 166, 168 and 210 and Schedule 14, relating to the extension of the false and threatening communications offences and the associated liability of corporate officers in Clause 166 to Northern Ireland.

This group also includes some technical and consequential amendments to the false and threatening communications offences and technical changes to the Malicious Communications (Northern Ireland) Order 1988 and Section 127 of the Communications Act 2003. This will minimise overlap between these existing laws and the new false and threatening communications offences in this Bill. Importantly, they mirror the approach taken for England and Wales, providing consistency in the criminal law.

This group also contains technical amendments to update the extent of the epilepsy trolling offence to reflect that it applies to England, Wales and Northern Ireland.

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With the offer of a broader meeting to give other noble Lords the benefit of the discussions with the Bill team that my noble friend has had—I extend that invitation to her, of course, to continue the conversation with us—I hope that provides information about the government amendments in this group and some reassurance on the points that my noble friend has made. I hope that she will be willing to withdraw her amendment and that noble Lords will accept the government amendments.

[Lord Stevenson of Balmacara (Lab)]

I suggested that we might see a table, independent of the meetings, although I am sure they could coincide. Would it be possible to have a table of all the criminal offences that the Minister listed and how they apply in each of the territories? Without that, we are a bit at sea as to exactly how they apply.

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The establishment of a specific unit within Ofcom, which was the subject of the Private Member’s Bill of the noble Baroness, Lady Finlay, is potentially a very useful addition to the Bill. I very much hope that the Minister takes that on board as well.

[Lord Stevenson of Balmacara (Lab)]

This has been a very good debate indeed. I have good days and bad days in Committee. Good days are when I feel that the Bill is going to make a difference and things are going to improve and the sun will shine. Bad days are a bit like today, where we have had a couple of groups, and this is one of them, where I am a bit worried about where we are and whether we have enough—I was going to use that terrible word “ammunition” but I do not mean that—of the powers that are necessary in the right place and with the right focus to get us through some of the very difficult questions that come in. I know that bad cases make bad law, but they can also illustrate why the law is not good enough. As the noble Baroness, Lady Kidron, was saying, this is possibly one of the areas we are in.

The speeches in the debate have made the case well and I do not need to go back over it. We have got ourselves into a situation where we want to reduce harm that we see around but do not want to impact freedom of expression. Both of those are so important and we have to hold on to them, but we find ourselves struggling. What do we do about that? We think through what we will end up with this Bill on the statute book and the codes of practice through it. This looks as though it is heading towards the question of whether the terms of service that will be in place will be sufficient and able to restrict the harms we will see affecting people who should not be affected by them. But I recognise that the freedom of expression arguments have won the day and we have to live with that.

The noble Baroness, Lady Kidron, mentioned the riskiness of the smaller sites—categories 2A and 2B and the ones that are not even going to be categorised as high as that. Why are we leaving those to cause the damage that they are? There is something not working here in the structure of the Bill and I hope the Minister will be able to provide some information on that when he comes to speak.

Obviously, if we could find a way of expressing the issues that are raised by the measures in these amendments as being illegal in the real world, they would be illegal online as well. That would at least be a solution that we could rely on. Whether it could be policed and serviced is another matter, but it certainly would be there. But we are probably not going to get there, are we? I am not looking at the Minister in any hope but he has a slight downward turn to his lips. I am not sure about this.

How can we approach a legal but harmful issue with the sort of sensitivity that does not make us feel that we have reduced people’s ability to cope with these issues and to engage with them in an adult way? I do not have an answer to that.

Is this another amplification issue or is it deeper and worse than that? Is this just the internet because of its ability to focus on things to keep people engaged, to make people stay online when they should not, to make them reach out and receive material that they ought not to get in a properly regulated world? Is it something that we can deal with because we have a sense of what is moral and appropriate and want to act because society wants us to do it? I do not have a solution to that, and I am interested to hear what the Minister will say, but I think it is something we will need to come back to.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, like everyone who spoke, I and the Government recognise the tragic consequences of suicide and self-harm, and how so many lives and families have been devastated by it. I am grateful to the noble Baroness and all noble Lords, as well as the bereaved families who campaigned so bravely and for so long to spare others that heartache and to create a safer online environment for everyone. I am grateful to the noble Baroness, Lady Finlay of Llandaff, who raised these issues in her Private Member’s Bill, on which we had exchanges. My noble friend Lady Morgan is right to raise the case of Frankie Thomas and her parents, and to call that to mind as we debate these issues.

Amendments 96 and 296, tabled by the noble Baroness, Lady Finlay, would, in effect, reintroduce the former adult safety duties whereby category 1 companies were required to assess the risk of harm associated with legal content accessed by adults, and to set and enforce terms of service in relation to it. As noble Lords will know, those duties were removed in another place after extensive consideration. Those provisions risked creating incentives for the excessive removal of legal content, which would unduly interfere with adults’ free expression.

However, the new transparency, accountability and freedom of expression duties in Part 4, combined with the illegal and child safety duties in Part 3, will provide a robust approach that will hold companies to account for the way they deal with this content. Under the Part 4 duties, category 1 services will need to have appropriate systems and processes in place to deal with content or activity that is banned or restricted by their terms of service.

Many platforms—such as Twitter, Facebook and TikTok, which the noble Baroness raised—say in their terms of service that they restrict suicide and self-harm content, but they do not always enforce these policies effectively. The Bill will require category 1 companies—the largest platforms—fully to enforce their terms of service for this content, which will be a significant improvement for users’ safety. Where companies allow this content, the user-empowerment duties will give adults tools to limit their exposure to it, if they wish to do so.

The noble Baroness is right to raise the issue of algorithms. As the noble Lord, Lord Stevenson, said, amplification lies at the heart of many cases. The Bill will require providers specifically to consider as part of their risk assessments how algorithms could affect children’s and adults’ exposure to illegal content, and content that is harmful to children, on their services. Providers will need to take steps to mitigate and effectively manage any risks, and to consider the design of functionalities, algorithms and other features to meet the illegal content and child safety duties in the Bill.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

Yes, they are—with the addition of what I am coming to. In addition to the duty for companies to consider the role of algorithms, which I talked about, Ofcom will have a range of powers at its disposal to help it assess whether providers are fulfilling their duties, including the power to require information from providers about the operation of their algorithms. The regulator will be able to hold senior executives criminally liable if they fail to ensure that their company is providing Ofcom with the information it requests.

However, we must not restrict users’ right to see legal content and speech. These amendments would prescribe specific approaches for companies’ treatment of legal content accessed by adults, which would give the Government undue influence in choosing, on adult users’ behalf, what content they see—

[Lord Stevenson of Balmacara (Lab)]

I wanted to give the Minister time to get on to this. Can we now drill down a little on the terms of service issue? If the noble Baroness, Lady Kidron, is right, are we talking about terms of service having the sort of power the Government suggest in cases where they are category 1 and category 2A but not search? There will be a limit, but an awful lot of other bodies about which we are concerned will not fall into that situation.

Also, I thought we had established, much to our regret, that the terms of service were what they were, and that Ofcom’s powers—I paraphrase to make the point—were those of exposure and transparency, not setting minimum standards. But even if we are talking only about the very large and far-reaching companies, should there not be a power somewhere to engage with that, with a view getting that redress, if the terms of service do not specify it?

[Lord Parkinson of Whitley Bay (Con)]

The Bill will ensure that companies adhere to their terms of service. If they choose to allow content that is legal but harmful on their services and they tell people that beforehand—and adults are able and empowered to decide what they see online, with the protections of the triple shield—we think that that strikes the right balance. This is at the heart of the whole “legal but harmful” debate in another place, and it is clearly reflected throughout the approach in the Bill and in my responses to all of these groups of amendments. But there are duties to tackle illegal content and to make sure that people know the terms of service for the sites they choose to interact with. If they feel that they are not being adhered to—as they currently are not in relation to suicide and self-harm content on many of the services—users will have the recourse of the regulator to turn to.

Online Safety Bill

Lord Stevenson of Balmacara Excerpts

Committee stage
Tuesday 16th May 2023 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, I have held back from contributing to this group, because it is not really my group and I have not really engaged in the topic at all. I have been waiting to see whether somebody who is engaged in it would raise this point.

The one factual piece of information that has not been raised in the debate is the fact that the IWF, of which I too am a huge admirer—I have huge respect for the work that it does; it does some fantastic work—is a registered charity. That may lead to some very proper questions about what its role should be in any kind of formal relationship with a statutory regulator. I noticed that no one is proposing in any of these amendments that it be put on the face of the Bill, which, searching back into my previous roles and experience, I think I am right to say would not be proper anyway. But even in the context of whatever role it might have along with Ofcom, I genuinely urge the DCMS and/or Ofcom to ensure that they consult the Charity Commission, not just the IWF, on what is being proposed so that it is compatible with its other legal obligations as a charity.

[Lord Stevenson of Balmacara (Lab)]

If I might follow up that comment, I agree entirely with what the noble Baroness has just said. It is very tricky for an independent charity to have the sort of relationship addressed in some of the language in this debate. Before the Minister completes his comments and sits down again, I ask him: if Ofcom were to negotiate a contracted set of duties with the IWF—indeed, with many other charities or others who are interested in assisting with this important work—could that be done directly by Ofcom, with powers that it already has? I think I am right to say that it would not require parliamentary approval. It is only if we are talking about co-regulation, which again raises other issues, that we would go through a process that requires what sounded like the affirmative procedure—the one that was used, for example, with the Advertising Standards Authority. Is that right?

[Lord Parkinson of Whitley Bay (Con)]

Yes, I think it is. I am happy to confirm that in writing. I am grateful to my noble friend Lady Stowell, who of course is a former chairman of the Charity Commission, for making the point about the charitable status of the foundation. I should clarify that officials from the Department for Science, Innovation and Technology and the Home Office are in touch with the IWF about its role.

Speedily moving on, Ofcom is in discussion with the foundation about a memorandum of understanding. I hope that reassures the noble Lord, Lord Clement-Jones, that they are in reciprocal contact. Obviously, I cannot pre-empt where their discussions are taking them in relation to that MoU, but it is between Ofcom and the foundation. Careful consideration of governance, funding and issues of charity, as my noble friend raised, would have to be thought about if co-designation were being considered.

Online Safety Bill

Lord Stevenson of Balmacara Excerpts

Committee stage
Thursday 11th May 2023 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I thank the Minister for his very clear and precise introduction of these amendments. As the noble Lord, Lord Clement-Jones, said, we will return to some of the underlying issues in future debates. It may be that this is just an aperitif to give us a chance to get our minds around these things, as the noble Baroness, Lady Stowell, said.

It is sometimes a bit difficult to understand exactly what issue is being addressed by some of these amendments. Even trying to say them got us into a bit of trouble. I think I follow the logic of where we are in the amendments that deal with the difference between adult material and children’s material, but it would benefit us all if the Minister could repeat it, perhaps a little slower this time, and we will see if we can agree that that is the way forward.

Broadly speaking, we accept the arrangements. They clarify the issues under which the takedown and appeal mechanisms will work. They are interfacing with the question of how the Bill deals with legal but harmful material, particularly for those persons who might wish not to see material and will not be warned about it under any process currently in the Bill but will have a toggle to turn to. It safeguards children who would not otherwise be covered by that. That is a fair balance to be struck.

Having said that, we will be returning to this. The noble Lord, Lord Clement-Jones, made the good point that we have a rather ironic situation where a press regulation structure set up and agreed by Parliament is not in operation across the whole of the press, but we do not seem to make any accommodation for that. This is perhaps something we should return to at a later date.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I want very briefly to probe something. I may have got the wrong end of the stick, but I want to just ask about the recognised news publishers. The Minister’s explanation about what these amendments are trying to do was very clear, but I have some concerns.

I want to know how this will affect how we understand what a recognised news publisher is in a world in which we have many citizen journalists, blogs and online publications. One of the democratising effects of the internet has been in opening up spaces for marginalised voices, campaign journalism and so on. I am worried that we may inadvertently put them into a category of being not recognised; maybe the Minister can just explain that.

I am also concerned that, because this is an area of some contention, this could be a recipe for all sorts of litigious disputes with platforms about content removal, what constitutes those carve-outs and what is a recognised news, journalism or publishing outlet.

I know we will come on to this, but for now I am opposed to Amendment 127 in this group—or certainly concerned that it is an attempt to coerce publishers into a post-Leveson regulatory structure by denying them the protections that the Bill will give news publishers, unless they sign up in certain ways. I see that as blackmail and bullying, which I am concerned about. Much of the national press and many publishers have refused to join that kind of regulatory regime post Leveson, as is their right; I support them in the name of press freedom. Any comments or clarifications would be helpful.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, this has been an interesting short debate and the noble Baroness, Lady Morgan, made a very simple proposition. I am very grateful to her for introducing this so clearly and comprehensively. Of course, it is all about the way that platforms will identify illegal, fraudulent advertising and attempt to align it with other user-to-user content in terms of transparency, reporting, user reporting and user complaints. It is a very straightforward proposition.

First of all, however, we should thank the Government for acceding to what the Joint Committee suggested, which was that fraudulent advertising should be brought within the scope of the Bill. But, as ever, we want more. That is what it is all about and it is a very straightforward proposition which I very much hope the Minister will accede to.

We have heard from around the Committee about the growing problem and I will be very interested to read the report that the noble Baroness, Lady Kidron, was talking about, in terms of the introduction of fraud into children’s lives—that is really important. The noble Baroness, Lady Morgan, mentioned some of the statistics from Clean Up the Internet, Action Fraud and so on, as did the noble Viscount, Lord Colville. And, of course, it is now digital. Some 80% of fraud, as he said, is cyber-enabled, and 23% of all reported frauds are initiated on social media—so this is bang in the area of the Bill.

It has been very interesting to see how some of the trade organisations, the ABI and others, have talked about the impact of fraud, including digital fraud. The ABI said:

“Consumers’ confidence is being eroded by the ongoing proliferation of online financial scams, including those predicated on impersonation of financial service providers and facilitated through online advertising. Both the insurance and long-term savings sectors are impacted by financial scams perpetrated via online paid-for advertisements, which can deprive vulnerable consumers of their life savings and leave deep emotional scars”.


So, this is very much a cross-industry concern and very visible to the insurance industry and no doubt to other sectors as well.

I congratulate the noble Baroness, Lady Morgan, on her chairing of the fraud committee and on the way it came to its conclusions and scrutinised the Bill. Paragraphs 559, 560 and 561 all set out where the Bill needs to be aligned to the other content that it covers. As she described, there are two areas where the Bill can be improved. If they are not cured, they will substantially undermine its ability to tackle online fraud effectively.

This has the backing of Which? As the Minister will notice, it is very much a cross-industry and consumer body set of amendments, supporting transparency reporting and making sure that those platforms with more fraudulent advertising make proportionately larger changes to their systems. That is why there is transparency reporting for all illegal harms that platforms are obliged to prevent. There is no reason why advertising should be exempt. On user reporting and complaints, it is currently unclear whether this applies only to illegal user-generated content and unpaid search content or if it also applies to illegal fraudulent advertisements. At the very least, I hope the Minister will clarify that today.

Elsewhere, the Bill requires platforms to allow users to complain if the platform fails to comply with its duties to protect users from illegal content and with regard to the content-reporting process. I very much hope the Minister will accede to including that as well.

Some very simple requests are being made in this group. I very much hope that the Minister will take them on board.

[Lord Stevenson of Balmacara (Lab)]

It is the simple requests that always seem to evade the easy solutions. I will not go back over the very good introductory speech from the noble Baroness, which said it all; the figures are appalling and the range of fraud-inspired criminality is extraordinary. It plays back to a point we have been hammering today: if this Bill is about anything, it is the way the internet amplifies that which would be unpleasant anyway but will now reach epidemic proportions.

I wonder whether that is the clue to the problem the noble Baroness was commenting on—I think more in hope than in having any way to resolve it. It is great news that three Bills are doing all the stuff we want. We have talked a bit about three-legged stools; this is another one that might crash over. If we are not careful, it will slip through the cracks. I am mixing my metaphors again.

If the Minister would not mind a bit of advice, it seems to me that this Bill could do certain things and do them well. It should not hold back and wait for the others to catch up or do things differently. The noble Baroness made the point about the extraordinarily difficult to understand gap, in that what is happening to priority illegal content elsewhere in the Bill does not apply to this, even though it is clearly illegal activity. I understand that there is a logical line that it is not quite the same thing—that the Bill is primarily about certain restricted types of activity on social media and not the generality of fraud—but surely the scale of the problem and our difficulty in cracking down on it, by whatever routes and whatever size of stool we choose, suggest that we should do what we can in this Bill and do it hard, deeply and properly.

Secondly, we have amendments later in Committee on the role of the regulators and the possibility recommended by the Communications and Digital Committee that we should seek statutory backing for regulation in this area. Here is a classic example of more than two regulators working to achieve the same end that will probably bump into each other on the way. There is no doubt that the FCA has primary responsibility in this area, but the reality is that the damage is being done by the amplification effect within the social media companies.

Online Safety Bill

Lord Stevenson of Balmacara Excerpts

Committee stage
Tuesday 9th May 2023 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

We will come to talk about algorithms and their risks later on. There is an important balance to strike here that we have debated, rightly, in this group. I remind noble Lords that there are a range of measures that providers can put in place—

[Lord Stevenson of Balmacara (Lab)]

Because of the importance of that point in relation to what the Minister is about to say, we should be clear about this point: is he ruling out the ability to prioritise the needs and requirements of those who are effectively unable to take the decisions themselves in favour of a broader consideration of freedom of expression? It would be helpful for the future of this debate to be clear on that point.

[Lord Parkinson of Whitley Bay (Con)]

We will come in a moment to the provisions that are in the Bill to make sure that decisions can be taken by adults, including vulnerable adults, easily and clearly. If the noble Lord will allow, I will cover that point.

I was in the middle of reminding noble Lords that there are a range of measures that providers can put in place under these duties, some of which might have an impact on a user’s experience if they were required to be switched on by default. That may include, for example, restricting a user’s news feed to content from connected users, adding to the echo chamber and silos of social media, which I know many noble Lords would join me in decrying. We think it is right that that decision is for individual users to make.

The Bill sets out that the user empowerment content tools must be offered to all adult users and must be easy to access—to go the point raised just now as well as by my noble friend Lady Harding, and the noble Baroness, Lady Burt, and, as noble Lords were right to remind us, pushed by the noble Baroness, Lady Campbell of Surbiton, who I am pleased to say I have been able to have discussions with separately from this Committee.

Providers will also be required to have clear and accessible terms of service about what tools are offered on their service and how users might take advantage of them. Ofcom will be able to require category 1 services to report on user empowerment tools in use through transparency reports. Ofcom is also bound by the Communications Act 2003 and the public sector equality duty, so it will need to take into account the ways that people with certain characteristics, including people with disabilities, may be affected when performing its duties, such as writing the codes of practice for the user empowerment duties.

--- Later in debate ---

[Lord Stevenson of Balmacara (Lab)]

Several times in the Bill—but this is a clear example—the drafters have chosen to impose a different sequence of words from that which exists in statute. The obvious one here is the Equality Act, which we have touched on before. The noble Baroness, Lady Buscombe, made a number of serious points about that. Why have the Government chosen to list, separately and distinctively, the characteristics which we have also heard, through a different route, the regulator will be required to uphold in respect of the statute, while the companies will be looking to the text of the Bill, when enacted? Is that not just going to cause chaos?

[Lord Parkinson of Whitley Bay (Con)]

The discrepancy comes from the point we touched on earlier. Ofcom, as a public body, is subject to the public sector equality duty and therefore the list set out in the Equality Act 2010. The list at Clause 12(11) relates to content which is abusive, and is therefore for providers to look at. While the Equality Act has established an understanding of characteristics which should be given special protection in law, it is not necessarily desirable to transpose those across. They too are susceptible to the point made by my noble friend Lady Buscombe about lists set out in statute. If I remember rightly, the Equality Act was part of a wash-up at the end of that Parliament, and whether Parliament debated that Bill as thoroughly as it is debating this one is a moot point.

[Lord Stevenson of Balmacara (Lab)]

The noble Lord made that point before, and I was going to pick him up on it. It really is not right to classify our legislation by whether it came through in a short or long period. We are spending an awfully long time on this but that is not going to make it any better. I was involved in the Equality Act, and I have the scars on my back to prove it. It is jolly good legislation and has stood the test of time. I do not think the point is answered properly by simply saying that this is a better way of doing it. The Minister said that Clause 12(11) was about abuse targets, but Clause 12(12) is about “hatred against people” and Clause 12(13) is a series of explanatory points. These provisions are all grist to the lawyers. They are not trying to clarify the way we operate this legislation, in my view, to the best benefit of those affected by it.

[Lord Parkinson of Whitley Bay (Con)]

The content which we have added to Clause 12 is a targeted approach. It reflects input from a wide range of interested parties, with whom we have discussed this, on the areas of content that users are most concerned about. The other protected characteristics that do not appear are, for instance, somebody’s marriage or civil partnership status or whether they are pregnant. We have focused on the areas where there is the greatest need for users to be offered the choice about reducing their exposure to types of content because of the abuse they may get from it. This recognises the importance of clear, enforceable and technically feasible duties. As I said a moment ago in relation to the point made by my noble friend Lady Buscombe, we will keep it under review but it is right that these provisions be debated at length—greater length than I think the Equality Bill was, but that was long before my time in your Lordships’ House, so I defer to the noble Lord’s experience and I am grateful that we are debating them thoroughly today.

I will move now, if I may, to discuss Amendments 43 and 283ZA, tabled by the noble Baroness, Lady Fox of Buckley. Amendment 43 aims to ensure that the user empowerment content features do not capture legitimate debate and discussion, specifically relating to the characteristics set out in subsections (11) and (12). Similarly, her Amendment 283ZA aims to ensure that category 1 services apply the features to content only when they have reasonable grounds to infer that it is user empowerment content.

With regard to both amendments, I can reassure the noble Baroness that upholding users’ rights to free expression is an integral principle of the Bill and it has been accounted for in drafting these duties. We have taken steps to ensure that legitimate online discussion or criticism will not be affected, and that companies make an appropriate judgment on the nature of the content in question. We have done this by setting high thresholds for inclusion in the content categories and through further clarification in the Bill’s Explanatory Notes, which I know she has consulted as well. However, the definition here deliberately sets a high threshold. By targeting only abuse and incitement to hatred, it will avoid capturing content which is merely challenging or robust discussion on controversial topics. Further clarity on definitions will be provided by Ofcom through regulatory guidance, on which it will be required to consult. That will sit alongside Ofcom’s code of practice, which will set out the steps companies can take to fulfil their duties.

Online Safety Bill

Lord Stevenson of Balmacara Excerpts

Committee stage
Tuesday 9th May 2023 Lords Chamber

Moved by

[Lord Stevenson of Balmacara]

40: Clause 12, page 12, line 27, after “to” insert “effectively”
Member’s explanatory statement
This amendment would bring this subsection into line with subsection (3) by requiring that the systems or processes available to users for the purposes described in subsections (7)(a) and (7)(b) should be effective.

--- Later in debate ---

I will make one final point before I sit down. Freedom of speech is also a critical element of the Digital Markets, Competition and Consumers Bill. That is why I have been so concerned that it was introduced alongside online safety. I am glad that it has finally arrived in Parliament and that we will get to examine it before too long. But that is for another day—for now, I beg to move.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I have slightly abused my position because, as the noble Baroness has just said, this is a rather oddly constructed group. My amendments, which carve great chunks out of the Bill—or would do if I get away with it—do not quite point in the same direction as the very good speech the noble Baroness made, representing of course the view of the committee that she chairs so brilliantly. She also picked out one or two points of her own, which we also want to debate. It therefore might be easier if I just explain what I was trying to do in my amendments; then I will sit down and let the debate go, and maybe come back to pick up one or two threads at the end.

In previous Bills—and I have seen a lot of them—people who stand up and move clause stand part debates usually have a deeper and more worrying purpose behind the proposition. Either they have not read the Bill and are just trying to wing it, or they have a plan that is so complex and deep that it would probably need another whole Bill to sort it out. This is neither of those approaches; it is done because I want to represent the views mainly of the Joint Committee. We had quite a lot of debate in that committee about this area, beginning with the question about why the Bill—or the White Paper or draft Bill, at that stage—used the term “democratic importance” when many people would have used the parallel term “public interest” to try to reflect the need to ensure that matters which are of public good take place as a result of publication, or discussion and debate, or on online platforms. I am very grateful that the noble Lord, Lord Black, is able to be with us today. I am sure he will recall those debates, and hopefully he will make a comment on some of the work—and other members of the committee are also present.

To be clear, the question of whether Clauses 13, 14, 15 and 18 should stand part of the Bills is meant to release space for a new clause in Amendment 48. It is basically designed to try to focus the actions that are going to be taken by the Bill, and subsequently by the regulator, to ensure that the social media companies that are affected by, or in scope of, the Bill use, as a focus, some of the issues mainly related to “not taking down” and providing an appeal mechanism for journalistic material, whether that is provided by recognised news publishers or some other form of words that we can use, or it is done by recognised journalists. “Contentious” is an overused word, but all these terms are difficult to square away and be happy with, and therefore we should have the debate and perhaps reflect on that later when we come back to it.

The committee spent quite a lot of time on this, and there are two things that exercised our minds when we were working on this area. First, if one uses “content of democratic importance”, although it is in many ways quite a clever use of words to reflect a sensibility that you want to have an open and well-founded debate about matters which affect the health of our democracy, it can be read as being quite limiting. It is very hard to express—I am arguing against myself here—in the words of a piece of legislation what it is we are trying to get down to, but, during the committee’s recommendations, we received evidence that the definition of content of democratic importance was wider, or more capable of being interpreted as wider, than the scope the Government seem to have indicated. So there is both a good side and a bad side to this. If we are talking about content which is, or appears to be, specifically intended to contribute to the democratic political debate of the United Kingdom, or a part or area of the United Kingdom, we have got to ask the Minister to put on the record that this also inclusive of matters which perhaps initially do not appear necessarily to be part of it, but include public health, crime, justice, the environment, professional malpractice, the activities of large corporations and the hypocrisy of public figures when that occurs. I am not suggesting this is what we should be doing all the time, but these are things we often read about in our papers, and much the better off we are for it. However, if these things are not inclusive and not well rooted in the phrase “content of democratic importance”, it is up to the Government to come forward with a better way of expressing that, or perhaps in debate we can find it together.

I have some narrow questions. Are we agreed that what is currently in the Bill is intended specifically to contribute to democratic political debate, and is anything more needed to be said or done in order to make sure that happens? Secondly, the breadth of democratic political debate is obviously important; are there any issues here that are going to trip us up later when the Government come back and say, “Well, that wasn’t what we meant at all, and that doesn’t get covered, and therefore that stuff can be taken down, and that stuff there doesn’t have to be subject to repeal”? Are there contexts and subjects which we need to talk about? This is a long way into the question of content of democratic importance being similar or limited to matters that one recognises as relating to public interest. I think there is a case to be argued for the replacement of what is currently in the Bill with a way of trying to get closer to what we now recognise as being the standard form of debate and discussion when matters, which either the Government of the day or people individually do not like, get taken up and made the subject of legal discussion, because we do have discussions about whether or not it is in the public interest.

We probably do not know what that means. Therefore, a third part of my argument is that perhaps this is the point at which we try to define this, even though that might cause a lot of reaction from those currently in the press. In a sense, it is a question that needs to be resolved. Maybe this is or is not the right time to do that. Are the Government on the same page as the Joint Committee on this? Do they have an alternative and is this what they are trying to get across in the Bill?

Can we have a debate and discussion in relation to those things, making it clear that we want something in the Bill ensuring that vibrant political debate—the sort of things the noble Baroness was talking about on freedom of expression, but in a broader sense covering all the things that matter to the body politic, the people of this country—is not excluded by the Bill? That was the reason for putting down a raft of rather aggressive amendments. I hope it has been made clear that that was the case. I have other things that I would like to come back to, but I will probably do that towards the end of the debate. I hope that has been helpful.

[Baroness Bull (CB)]

My Lords, I will speak to the amendments in the name of the noble Baroness, Lady Stowell, to which I have added my name. As we heard, the amendments originally sat in a different group, on the treatment of legal content accessed by adults. Noble Lords will be aware from my previous comments that my primary focus for the Bill has been on the absence of adequate provisions for the protection of adults, particularly those who are most vulnerable. These concerns underpin the brief remarks I will make.

The fundamental challenge at the heart of the Bill is the need to balance protection with the right to freedom of expression. The challenge, of course, is how. The noble Baroness’s amendments seek to find that balance. They go beyond the requirements on transparency reporting in Clause 68 in several ways. Amendment 46 would provide a duty for category 1 services to maintain an up-to-date document for users of the service, ensuring that users understand the risks they face and how, for instance, user empowerment tools can be used to help mitigate these risks. It also provides a duty for category 1 services to update their risk assessments before making any “significant change” to the design or operation of their service. This would force category 1 services to consider the impact of changes on users’ safety and make users aware of changes before they happen, so that they can take any steps necessary to protect themselves and prepare for them. Amendment 47 provides additional transparency by providing a duty for category 1 services to release a public statement of the findings of the most recent risk assessment, which includes any impact on freedom of expression.

The grouping of these amendments is an indication, if any of us were in doubt, of the complexity of balancing the rights of one group against the rights of another. Regardless of the groupings, I hope that the Minister takes note of the breadth and depth of concerns, as well as the willingness across all sides of the Committee to work together on a solution to this important issue.

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[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to have been part of this debate and to have heard how much we are on common ground. I very much hope that, in particular, the Minister will have listened to the voices on the Conservative Benches that have very powerfully put forward a number of amendments that I think have gained general acceptance across the Committee.

I fully understand the points that the noble Lord, Lord Black, made and why he defends Clause 14. I hope we can have a more granular discussion about the contents of that clause rather than wrap it up on this group of amendments. I do not know whether we will be able to have that on the next group.

I thank the noble Baroness, Lady Stowell, for putting forward her amendment. It is very interesting, as the noble Baronesses, Lady Bull and Lady Fraser, said, that we are trying to get to the same sort of mechanisms of risk assessment, perhaps out of different motives, but we are broadly along the same lines and want to see them for adult services. We want to know from the Minister why we cannot achieve that, basically. I am sure we could come to some agreement between us as to whether user empowerment tools or terms of service are the most appropriate way of doing it.

We need to thank the committee that the noble Baroness chairs for having followed up on the letter to the Secretary of State for DCMS, as was, on 30 January. It is good to see a Select Committee using its influence to go forward in this way.

The amendments tabled by the noble Lord, Lord Kamall, and supported by my noble friend Lady Featherstone—I am sorry she is unable to be here today, as he said—are important. They would broaden out consideration in exactly the right kind of way.

However, dare I say it, probably the most important amendment in this group is Amendment 48 in the name of the noble Lord, Lord Stevenson. Apart from the Clause 14 stand part notice, it is pretty much bang on where the Joint Committee got to. He was remarkably tactful in not going into any detail on the Government’s response to that committee. I will not read it out because of the lateness of the hour, but the noble Viscount, Lord Colville, got pretty close to puncturing the Government’s case that there is no proper definition of public interest. It is quite clear that there is a perfectly respectable definition in the Human Rights Act 1998 and, as the noble Viscount said, in the Defamation Act 2013, which would be quite fit for purpose. I do not quite know why the Government responded as they did at paragraph 251. I very much hope that the Minister will have another look at that.

The amendment from the noble and learned Lord, Lord Hope, which has the very respectable support of Justice, is also entirely apposite. I very much hope that the Government will take a good look at that.

Finally, and extraordinarily, I have quite a lot of sympathy with the amendments from the noble Lord, Lord Moylan. It was all going so well until we got to Amendment 294; up to that point I think he had support from across the House, because placing that kind of duty on Ofcom would be a positive way forward.

As I say, getting a clause of the kind that the noble Lord, Lord Stevenson, has put forward, with that public interest content point and with an umbrella duty on freedom of expression, allied to the definition from the noble and learned Lord, Lord Hope, would really get us somewhere.

[Lord Stevenson of Balmacara (Lab)]

Lawyers—don’t you love them? How on earth are we supposed to unscramble that at this time of night? It was good to have my kinsman, the noble and learned Lord, Lord Hope, back in our debates. We were remarking only a few days ago that we had not seen enough lawyers in the House in these debates. One appears, and light appears. It is a marvellous experience.

I thank the Committee for listening to my earlier introductory remarks; I hope they helped to untangle some of the issues. The noble Lord, Lord Black, made it clear that the press are happy with what is in the current draft. There could be some changes, and we have heard a number of examples of ways in which one might either top or tail what there is.

There was one question that perhaps he could have come back on, and maybe he will, as I have raised it separately with the department before. I agree with a lot of what he said, but it applies to a lot more than just news publishers. Quality journalism more generally enhances and restores our faith in public services in so many ways. Why is it only the news? Is there a way in which we could broaden that? If there is not this time round, perhaps that is something we need to pick up later.

As the noble Lord, Lord Clement-Jones, has said, the noble Viscount, Lord Colville, made a very strong and clear case for trying to think again about what journalism does in the public realm and making sure that the Bill at least carries that forward, even if it does not deal with some of the issues that he raised.

We have had a number of other good contributions about how to capture some of the good ideas that were flying around in this debate and keep them in the foreground so that the Bill is enhanced. But I think it is time that the Minister gave us his answers.

[Lord Parkinson of Whitley Bay (Con)]

I join noble Lords who have sent good wishes for a speedy recovery to the noble Baroness, Lady Featherstone.

Amendments 46, 47 and 64, in the name of my noble friend Lady Stowell of Beeston, seek to require platforms to assess the risk of, and set terms for, content currently set out in Clause 12. Additionally, the amendments seek to place duties on services to assess risks to freedom of expression resulting from user empowerment tools. Category 1 platforms are already required to assess the impact on free expression of their safety policies, including user empowerment tools; to keep that assessment up to date; to publish it; and to demonstrate the positive steps they have taken in response to the impact assessment in a publicly available statement.

Amendments 48 and 100, in the name of the noble Lord, Lord Stevenson, seek to introduce a stand-alone duty on category 1 services to protect freedom of expression, with an accompanying code of practice. Amendments 49, 50, 53A, 61 and 156, in the name of the noble Baroness, Lady Fox, seek to amend the Bill’s Clause 17 and Clause 18 duties and clarify duties on content of democratic importance.

All in-scope services must already consider and implement safeguards for freedom of expression when fulfilling their duties. Category 1 services will need to be clear what content is acceptable on their services and how they will treat it, including when removing or restricting access to it, and that they will enforce the rules consistently. In setting these terms of service, they must adopt clear policies designed to protect journalistic and democratic content. That will ensure that the most important types of content benefit from additional protections while guarding against the arbitrary removal of any content. Users will be able to access effective appeal mechanisms if content is unfairly removed. That marks a considerable improvement on the status quo.

Requiring all user-to-user services to justify why they are removing or restricting each individual piece of content, as Amendment 53A would do, would be disproportionately burdensome on companies, particularly small and medium-sized ones. It would also duplicate some of the provisions I have previously outlined. Separately, as private entities, service providers have their own freedom of expression rights. This means that platforms are free to decide what content should or should not be on their website, within the bounds of the law. The Bill should not mandate providers to carry or to remove certain types of speech or content. Accordingly, we do not think it would be appropriate to require providers to ensure that free speech is not infringed, as suggested in Amendment 48.

--- Later in debate ---

[Lord Stevenson of Balmacara (Lab)]

It is so complicated that the Minister is almost enticing me to stand up and ask about it. Let us just get that right: the reference to the Article 8 powers exists and applies to those bodies in the UK to which such equivalent legislation applies, so that ties us into Ofcom. Companies cannot be affected by it because it is a public duty, not a private duty, but am I then allowed to walk all the way around the circle? At the end, can Ofcom look back at the companies to establish whether, in Ofcom’s eyes, its requirements in relation to its obligations under Article 8 have or have not taken place? It is a sort of transparent, backward-reflecting view rather than a proactive proposition. That seems a complicated way of saying, “Why don’t you behave in accordance with Article 8?”

[Lord Parkinson of Whitley Bay (Con)]

Yes, Ofcom, which is bound by it through the Human Rights Act 1998, can ask those questions and make that assessment of the companies, but it would not be right for private companies to be bound by something to which it is not appropriate for companies to be signatories. Ofcom will be looking at these questions but the duty rests on it, as bound by the Human Rights Act.

[Lord Stevenson of Balmacara (Lab)]

It is late at night and this is slightly tedious, but in the worst of all possible circumstances, Ofcom would be looking at what happened over the last year in relation to its codes of practice and assertions about a particular company. Ofcom is then in trouble because it has not discharged its Article 8 obligations, so who gets to exercise a whip on whom? Sorry, whips are probably the wrong things to use, but you see where I am coming from. All that is left is for the Secretary of State, but probably it would effectively be Parliament, to say to Ofcom, “You’ve failed”. That does not seem a very satisfactory solution.

[Lord Parkinson of Whitley Bay (Con)]

Platforms will be guided by Ofcom in taking measures to comply with their duties which are recommended in Ofcom’s codes, and which contain safeguards for privacy, including ones based on the European Convention on Human Rights and the rights therein. Paragraph 10(2)(b) of Schedule 4 requires Ofcom to ensure that measures, which it describes in the code of practice, are designed in light of the importance of protecting the privacy of users. Clause 42(2) and (3) provides that platforms will be treated as complying with the privacy duties set out at Clause 18(2) and Clause 28(2), if they take the recommended measures that Ofcom sets out in the codes.

[Lord Stevenson of Balmacara (Lab)]

That is the point I was making.

[Lord Parkinson of Whitley Bay (Con)]

It worked. In seriousness, we will both consult the record and, if the noble Lord wants more, I am very happy to set it out in writing.

Amendment 63 in the name of the noble and learned Lord, Lord Hope of Craighead, seeks to clarify that “freedom of expression” in Clause 18 refers to the

“freedom to impart ideas, opinions or information”,

as referred to in Article 10 of the European Convention on Human Rights. I think I too have been guilty of using the phrases “freedom of speech” and “freedom of expression” as though they were interchangeable. Freedom of expression, within the law, is intended to encompass all the freedom of expression rights arising from UK law, including under common law. The rights to freedom of expression under Article 10 of the European Convention on Human Rights include both the rights to impart ideas, opinions and information, but also the right to receive such ideas, opinions and information. Any revised definition of freedom of expression to be included in the Bill should refer to both aspects of the Article 10 definition, given the importance for both children and adults of receiving information via the internet. We recognise the importance of clarity in relation to the duties set out in Clauses 18 and 28, and we are very grateful to the noble and learned Lord for proposing this amendment, and for the experience he brings to bear on behalf of the Constitution Committee of your Lordships’ House. The Higher Education (Freedom of Speech) Bill and the Online Safety Bill serve very different purposes, but I am happy to say that the Bill team and I will consider this amendment closely between now and Report.

Amendments 101, 102, 109, 112, 116, 121, 191 and 220, in the name of my noble friend Lord Moylan, seek to require Ofcom to have special regard to the importance of protecting freedom of expression when exercising its enforcement duties, and when drafting or amending codes of practice or guidance. Ofcom must already ensure that it protects freedom of expression when overseeing the Bill, because it is bound by the Human Rights Act, as I say. It also has specific duties to ensure that it is clear about how it is protecting freedom of expression when exercising its duties, including when developing codes of practice.

My noble friend’s Amendment 294 seeks to remove “psychological” from the definition of harm in the Bill. It is worth being clear that the definition of harm is used in the Bill as part of the illegal and child safety duties. There is no definition of harm, psychological or otherwise, with regard to adults, given that the definition of content which is harmful to adults was removed from the Bill in another place. With regard to children, I agree with the points made by the noble Baroness, Lady Kidron. It is important that psychological harm is captured in the Bill’s child safety duties, given the significant impact that such content can have on young minds.

I invite my noble friend and others not to press their amendments in this group.

Online Safety Bill

Lord Stevenson of Balmacara Excerpts

Committee stage
Tuesday 2nd May 2023 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

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

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

[Lord Stevenson of Balmacara (Lab)]

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

[Lord Parkinson of Whitley Bay (Con)]

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

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

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

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