Online Safety Bill

Lord Stevenson of Balmacara Excerpts

Committee stage
Thursday 27th April 2023 Lords Chamber

Moved by

[Lord Stevenson of Balmacara]

16: Clause 8, page 7, line 16, after “governance,” insert “terms of service,”
Member’s explanatory statement
This amendment makes clear that “design and operation of a service” includes its terms of service.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this group of amendments concerns terms of service. All the amendments either have the phrase “terms of service” in them or imply that we wish to see more use of the phrase in the Bill, and seek to try to tidy up some of the other bits around that which have crept into the Bill.

Why are we doing that? Rather late in the day, terms of service has suddenly become a key fulcrum, under which much of the operations of the activity relating to people’s usage of social media and service functions on the internet will be expressed in relation to how they view the material coming to them. With the loss of the adult “legal but harmful” provisions, we also lost quite a considerable amount of what would have been primary legislation, which no doubt would have been backed up by codes of practice. The situation we are left with, and which we need to look at very closely, is the triple shield at the heart of the new obligations on companies, and, in particular, on their terms of service. That is set out primarily in Clauses 64, 65, 66 and 67, and is a subject to which my amendments largely refer.

Users of the services would be more confident that the Government have got their focus on terms of service right, if they actually said what should be said on the tin, as the expression goes. If it is the case that something in a terms of service was so written and implemented so that material which should be taken down was indeed taken down, these would become reliable methods of judging whether or not the service is the one people want to have, and the free market would be seen to be working to empower people to make their own decisions about what level of risk they can assume by using a service. That is a major change from the way the Bill was originally envisaged. Because this was done late, we have one or two of the matters to which I have referred already, which means that the amendments focus on changing what is currently in the Bill.

It is also true that the changes were not consulted upon; I do not recall there being any document from government about whether this was a good way forward. The changes were certainly not considered by the Joint Committee, of which several of those present were members—we did not discuss it in the Joint Committee and made no recommendation on it. The level of scrutiny we have enjoyed on the Bill has been absent in this area. The right reverend Prelate the Bishop of Oxford will speak shortly to amendments about terms of service, and we will be able to come back to it. I think it would have been appropriate had the earlier amendment in the name of the noble Lord, Lord Pickles, been in this group because the issue was the terms of service, even though it had many other elements that were important and that we did discuss.

The main focus of my speech is that the Government have not managed to link this new idea of terms of service and the responsibilities that will flow from that to the rest of the Bill. It does not seem to fit into the overall architecture. For example, it is not a design feature, and does not seem to work through in that way. This is a largely self-contained series of clauses. We are trying to ask some of the world’s largest companies, on behalf of the people who use them, to do things on an almost contractual basis. Terms of service are not a contract that you sign up to, but you certainly click something—or occasionally click it, if you remember to—by which you consent to the company operating in a particular set of ways. In a sense, that is a contract, but is it really a contract? At the heart of that contract between companies and users is whether the terms of service are well captured in the way the Bill is organised. I think there are gaps.

The Bill does have something that we welcome and want to hold on to, which is that the process under which the risks are assessed and decisions taken about how companies operate and how Ofcom relates to those decisions is about the design and operation of the service—both the design and the operation, something that the noble Baroness, Lady Kidron, is very keen to emphasise at all times. It all starts and ends with design, and the operation is a consequence of design choices. Other noble Baronesses have mentioned in the debate that small companies get it right and so, when they grow, can be confident that what they are doing is something that is worth doing. Design, and operating that design to make a service, is really important. Are terms of service part of that or are they different, and does it matter? It seems to me that they are downstream from the design: something can be designed and then have terms of service that were not really part of the original process. What is happening here?

My Amendments 16, 21, 66DA, 75 and 197 would ensure that the terms of service are included within the list of matters that constitute “design and operation” of the service at each point that it occurs. I have had to go right through the Bill to add it in certain areas—in a rather irritating way, I am sure, for the Bill team—because sometimes we find that what I think should be a term of service is actually described as something else, such as a “a publicly available statement”, whatever that is. It would be an advantage if we went through it again and defined terms of service and made sure that that was what we were talking about.

Amendments 70 to 72, 79 to 81 and 174 seek to help the Government and their officials with tidying up the drafting, which probably has not been scrutinised enough to pick up these issues. It may not matter, at the end of the day, but what is in the Bill is going to be law and we may as well try to get it right as best we can. I am sure the Minister will say we really do not need to worry about this because it is all about risks and outcomes, and if a company does not protect children or has illegal content, or the user-empowerment duties—the toggling—do not work, Ofcom will find a way of driving the company to sort it out. What does that mean in practice? Does it mean that Ofcom has a role in defining what terms of service are? It is not in the Bill and may not reach the Bill, but it is something that will be a bit of problem if we do not resolve what we mean by it, even if it is not by changing the legislation.

If the Minister were to disagree with my approach, it would be quite nice to have it said at the Dispatch Box so that we can look at that. The key question is: are terms of service an integral part of the design and operation of a service and, if so, can we extend the term to make sure that all aspects of the services people consume are covered by adequate and effective terms of service? There is probably going to be division in the way we approach this because, clearly, whether they are terms of service or have another name, the actual enforcement of illegal and children’s duties will be effected by Ofcom, irrespective of the wording of the Bill—I do not want to question that. However, there is obviously an overlap into questions about adults and others who are affected by the terms of service. If you cannot identify what the terms of service say in relation to something you might not wish to receive because the terms of service are imprecise, how on earth are you going to operate the services, the toggles and things, around it? If you look at that and accept there will be pressure within the market to get these terms of service right, there will be a lot of dialogue with Ofcom. I accept that all that will happen, but it would be good if the position of the terms of service was clarified in the Bill before it becomes law and that Ofcom’s powers in relation to those are clarified—do they or do they not have the chance to review terms of service if they turn out to be ineffective in practice? If that is the case, how are we going to see this work out in practice in terms of what people will be able to do about it, either through redress or by taking the issue to court? I beg to move.

[Baroness Kidron (CB)]

I support these amendments, which were set out wonderfully by the noble Lord, Lord Stevenson. I want to raise a point made on Tuesday when the noble Baroness, Lady Merron, said that only 3% of people read terms of service and I said that 98% of people do not read them, so one of us is wrong, but I think the direction of travel is clear. She also used a very interesting phrase about prominence, and I want to use this opportunity to ask the Minister whether there is some lever whereby Ofcom can insist on prominence for certain sorts of material—a hierarchy of information, if you like—because these are really important pieces of information, buried in the wrong place so that even 2% or 3% of people may not find them.

--- Later in debate ---

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Stevenson of Balmacara (Lab)]

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

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

--- Later in debate ---

[Lord Allan of Hallam (LD)]

My Lords, I would like to mention one issue that I forgot to mention, and I think it would be more efficient to pose the question now to the Minister rather than interject when he is speaking.

On the Government’s Amendments 136A, 136B and 136C on the immigration offences, the point I want to make is that online services can be literal life-savers for people who are engaged in very dangerous journeys, including journeys across the Channel. I hope the Minister will be clear that the intention here is to require platforms to deal only with content, for example, from criminals who are offering trafficking services, and that there is no intention to require platforms somehow to withdraw services from the victims of those traffickers when they are using those services in the interest of saving their own lives or seeking advice that is essential to preserving their own safety.

That would create—as I know he can imagine—real ethical and moral dilemmas, and we should not be giving any signal that we intend to require platforms to withdraw services from people who are in desperate need of help, whatever the circumstances.

[Lord Stevenson of Balmacara (Lab)]

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

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Parkinson of Whitley Bay (Con)]

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

[Lord Stevenson of Balmacara (Lab)]

A clean shirt, perhaps?

[Lord Parkinson of Whitley Bay (Con)]

Yes, that would be welcome.

--- Later in debate ---

[Lord Stevenson of Balmacara (Lab)]

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

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

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

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

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

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

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

[Lord Parkinson of Whitley Bay (Con)]

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

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

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

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

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

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

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

“anything communicated by means of an internet service”.

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

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

Online Safety Bill

Lord Stevenson of Balmacara Excerpts

Committee stage
Thursday 27th April 2023 Lords Chamber

[Lord Kamall (Con)]

My Lords, this is the first time that I have spoken on the Bill in Committee. I know noble Lords are keen to move on and get through the groups as quickly as possible, but I hope they will forgive me if I say that I will speak only about twice on the Bill, and this is one of the groups that I want to speak to. I will try not to make your Lordships impatient.

I should tell the Committee a little about where I am coming from. I was very geeky as a kid. I learned to program and code. I did engineering at university and coded there. My master’s degree in the late 1980s was about technology and policy, so I have been interested in technology policy since then, having followed it through in my professional life. In 1996, I wrote a book on EU telecoms—it sold so well that no one has ever heard of it. One thing I said in that book, which though not an original thought is pertinent today, is that the regulation will always be behind the technology. We will always play catch-up, and we must be concerned about that.

Interestingly, when you look at studies of technology adoption—pioneers, early adopters and then the rest of the population—quite often you see that the adult industry is at the leading edge, such as with cable TV, satellite TV, video cassettes, online conferencing, et cetera. I assure your Lordships that I have not done too much primary research into this, but it is an issue that we ought to be aware of.

I will not speak often in this debate, because there are many issues that I do not want to disagree on. For example, I have already had a conversation with the noble Baroness, Lady Kidron, and we all agree that we need to protect children. We also know that we need to protect vulnerable adults; there is no disagreement on that. However, in these discussions there will be inevitable trade-offs between security and safety and freedom. It is right to have these conversations to ensure that we get the balance right, with the wisdom of noble Lords. Sacrifices will be made on either side of the debate, and we should be very careful as we navigate this.

I am worried about some of the consequences for freedom of expression. When I was head of a research think tank, one of the phenomena that I became interested in was that of unintended consequences. Well-meaning laws and measures have often led to unintended consequences. Some people call it a law of unintended consequences, and some call it a principle, and we should be careful about this. The other issue is subjectivity of harms. Given that we have taken “legal but harmful” out and there are amendments to the Bill to tackle harms, there will be a debate on the subjectivity of harms.

One reason I wanted to speak on this group is that some of the amendments tabled by noble Lords—too many to mention—deal with technology notices and ensuring that we are consistent between the offline and online worlds, particularly regarding the Regulation of Investigatory Powers Act. I welcome and support those amendments.

We also have to be aware that people will find a way around it, as the noble Baroness, Lady Fox, said. When I was looking at terrorism and technology, one of the issues that people raised with me was not to forget that one way around it was to create an email account and store stuff in a draft folder. You could then share the username and password with others who could then access that data, those pictures or those instructions in a draft folder. The noble Lord, Lord Allan, has gone some way to addressing that issue.

The other issue that we have to be clear about is how the tech sector can do more. It was interesting when my noble friend Lady Stowell organised a meeting with Meta, which was challenged particularly on having access to information and pictures from coroners. It was very interesting when Meta told us what it could access: it does not know what is in the messages, but there are things that it can access, or advise people to access, on the user’s phone or at the other end. I am not sure whether the noble Baroness, Lady Kidron, has had the conversation with Meta, but it would be helpful and important to find some common ground there, and to probe and push Meta and others to make sure that they share that information more quickly, so we do not have to wait five years to get it via the coroner or whatever. We ought to push that as much as possible.

I want to talk in particular about unintended consequences, particularly around end-to-end encryption. Even if you do not believe the big businesses and think that they are crying wolf when they say that they will quit the UK—although I believe that there is a threat of that, particularly when we continually want the UK to be a global hub for technology and innovation and so cannot afford for companies such as Meta, Signal and others to leave—you should listen to the journalists who are working with people, quite often dissidents, in many countries, and rely on encrypted communications to communicate with them.

The other risk we should be aware of is that it is very difficult to keep technology to a few people. In my academic career, I also looked at technology transfer, both intentional and unintentional. We should look at the intelligence services and some of the innovations that happened: for example, when Concorde was designed, it was not very long after that the Soviets got their hands on that equipment. Just as there used to be a chap called Bob in the exchange who could share information, there is always a weak spot in chains: the humans. Lots of humans have a price and can be bought, or they can be threatened, and things can be shared. The unintended consequence I am worried about is that this technology will get into the hands of totalitarian regimes. At the same time, it means people over here who are really trying desperately to help dissidents and others speak up for freedom in other countries will be unable to support them. We should be very careful and think about unintended consequences. For that reason, I support this group of amendments.

I really am looking forward to the responses from the Minister. I know that the noble Lord, Lord McNally, said that he was a Minister for three years on data protection; I was a Minister in this department for one month. I was so pleased that I had my dream job, as Minister for Civil Society and Heritage, and so proud of my party and this country because we had elected the first Asian Prime Minister; then, six days later, I got sacked. So, as they say, be careful what you wish for.

In this particular case, I am grateful to the noble Lords who have spoken up in this debate. I do not want to repeat any other points but just wanted to add that. I will not speak often, but I want to say that it is really critical that, when we look at this trade-off between security, safety and freedom, we get it right. One way of doing that is to make sure that, on technology notices and RIPA, we are consistent between the online and offline worlds.

[Lord Stevenson of Balmacara (Lab)]

My Lords, it has been a very good debate indeed. When I first saw this grouping, my heart sank: the idea that we should be able to encompass all that within the space of just over an hour seemed a bit beyond all of us, however skilled and experienced we were, and whatever background we were able to bring to the debate today. I agree with both noble Lords who observed that we have an expertise around here that is very unusual and extremely helpful in trying to drill down into some of these issues.

The good thing that has come out from this debate, which was summed up very well by the noble Lord, Lord Kamall, is that we are now beginning to address some of the underlying currents that the Bill as a boat is resting on—and the boat is a bit shaky. We have a very strong technological bias, and we are grateful for the masterclass from the noble Lord, Lord Allan of Hallam, on what is actually going on in the world that we are trying to legislate for. It leaves me absolutely terrified that we are in a situation where we appear to be trying to future-proof, possibly in the wrong direction. We should be very careful about that. We will want to reflect on the point he made on where the technology is driving this particular aspect of our social media and search engine operations.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

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

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

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

[Lord Stevenson of Balmacara (Lab)]

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

[Lord Parkinson of Whitley Bay (Con)]

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

[Lord Stevenson of Balmacara (Lab)]

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

[Lord Parkinson of Whitley Bay (Con)]

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

[Lord Parkinson of Whitley Bay (Con)]

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

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

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

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

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

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

[Lord Stevenson of Balmacara (Lab)]

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

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

Online Safety Bill

Lord Stevenson of Balmacara Excerpts

Committee stage
Tuesday 25th April 2023 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

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

[Lord Parkinson of Whitley Bay (Con)]

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

[Lord Stevenson of Balmacara (Lab)]

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

[Lord Parkinson of Whitley Bay (Con)]

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

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, this has been a very strange debate. It has been the tail end of the last session and a trailer for a much bigger debate coming down the track. It was very odd.

We do not want to see everything behind an age-gating barrier, so I agree with my noble friend. However, as the noble Baroness, Lady Kidron, reminded us, it is all about the risk profile, and that then leads to the kind of risk assessment that a platform is going to be required to carry out. There is a logic to the way that the Bill is going to operate.

When you look at Clause 11(3), you see that it is not disproportionate. It deals with “primary priority content”. This is not specified in the Bill but it is self-harm and pornography—major content that needs age-gating. Of course we need to have the principles for age assurance inserted into the Bill as well, and of course it will be subject to debate as we go forward.

There is technology to carry out age verification which is far more sophisticated than it ever was, so I very much look forward to that debate. We started that process in Part 3 of the Digital Economy Act. I was described as an internet villain for believing in age verification. I have not changed my view, but the debate will be very interesting. As regards the tail-end of the previous debate, of course we are sympathetic on these Benches to the Wikipedia case. As we said on the last group, I very much hope that we will find a way, whether it is in Schedule 1 or in another way, of making sure that Wikipedia is not affected overly by this—maybe the risk profile that is drawn up by Ofcom will make sure that Wikipedia is not unduly impacted.

[Lord Stevenson of Balmacara (Lab)]

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

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

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

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

[Lord Parkinson of Whitley Bay (Con)]

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

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

Online Safety Bill

Lord Stevenson of Balmacara Excerpts

Committee stage
Wednesday 19th April 2023 Lords Chamber

Moved by

[Lord Stevenson of Balmacara]

1: After Clause 1, insert the following new Clause—
“Purposes of Act
(1) This Act has the following purposes—(a) to secure that regulated internet services comply with UK law and do not endanger public health or national security,(b) to provide a higher level of protection for children than for adults in respect of regulated internet services, (c) to identify and mitigate the risk of reasonably foreseeable harm arising from the operation and design of regulated internet services,(d) to recognise and respond to the disproportionate level of harms experienced in relation to regulated internet services by people on the basis of one or more protected characteristic,(e) to apply the overarching principle that regulated internet services should be safe by design,(f) to safeguard freedom of expression within the law and privacy in relation to regulated internet services, and(g) to secure that regulated internet services operate with transparency and accountability in respect of online safety.(2) The Secretary of State and OFCOM must have regard to the need to fulfil these purposes in exercising functions under this Act.”Member’s explanatory statement
This new Clause would implement a recommendation of the Joint Committee which carried out pre-legislative scrutiny of the Bill, setting out a range of purposes for the legislation and making clear that both the Secretary of State and OFCOM must have regard to those purposes when exercising their statutory functions.

[Lord Stevenson of Balmacara (Lab)]

I must say I am quite relieved that so many noble Lords have stayed; I thought that a single group with a single amendment on a sunny afternoon might have been enough to drive most noble Lords away. I take it as a thoroughly good- going sign that this will be a useful debate for us to have in Committee. I am privileged, and it is a great honour, to open this Committee stage with Amendment 1— at last.

Amendment 1 is in my name and those of the noble Baroness, Lady Kidron, and the noble Lords, Lord Clement-Jones and Lord Gilbert of Panteg. The noble Lord, Lord Gilbert, has let me know that he would have liked to have been present today and had intended to speak but, unfortunately, he has a hospital appointment. As noble Lords will be aware, he was recently a distinguished chair of your Lordships’ Communications and Digital Committee and would, I think, have had a lot to say about some of the issues that we are going to discuss this afternoon. I had the pleasure of working with him there, and he has kindly agreed that I can mention a couple of the points that he would have liked to make had he been present; I will be delighted to do so.

I am grateful to the noble Baroness and noble Lords for signing this amendment; that highlights the all-party support for ensuring that the Bill will achieve the high hopes that we all have for it. It also points to the fact that all the signatories were members of the Joint Committee of both Houses which undertook comprehensive pre-legislative scrutiny of the Bill 18 months ago—a process that I thoroughly endorse and count as one of the highlights of my time in your Lordships’ House.

I observe in passing that this amendment, based as it is on a recommendation from that Joint Committee, represents one of the few recommendations not yet implemented in the Bill before us today—just saying, Minister. I got that phrase from my kids; I am not quite sure what it means but they use it a lot, so I think it must have some commonality.

This amendment is intended to be declaratory, although it is also what the Public Bill Office—it has done a great job for us, we should all say—says is purposive. I had to look that one up, I confess; I discovered that it means “having or tending to fulfil a conscious purpose or design”. So this is a purposive amendment—indeed, it does what it says on the tin.

As the noble Lord, Lord Gilbert, would have said had he been present, the Bill is very difficult to understand, in part because of its innate complexity and in part because it has been revised so often. A simple statement of its purpose will help us all. I agree.

I stress at the outset that the amendment on its own does not seek to add anything to the considerable detail already in the Bill. However, it does five important things. It says up front what the Government are trying to achieve with this legislation and highlights what those companies within the scope of the Bill will need to bear in mind when they prepare for the new regime. It makes it clear that the new regime is centred on ensuring that the duties of care are placed on the companies that are in scope

“to identify and mitigate the risk of reasonably foreseeable harm arising from the operation and design of”

their services. It calls for “transparency and accountability” from all concerned in respect of online safety.

Had he been present, the noble Lord, Lord Gilbert, would have added that the amendment also sets out a few important principles that Ministers claim are fundamental to the way in which the Bill works but are absent from the detailed provisions when one comes to read them—such as, for example, that this Bill is about systems, not content. We will have to keep reminding ourselves of those words as we go through the Bill: it is about the systems that deliver the content but not the content itself.

Finally, this amendment would send a clear message about the trust that we in Parliament are placing in our independent regulator, Ofcom. That is a very important point. The amendment leads with a requirement that regulated services comply with UK law and do not endanger public health or national security. National security and public health are of course topical issues, but even if we were not in the midst of a storm about USA national security leaks shared on a Minecraft Discord server, which is certainly a user-to-user service that is widely accessed in the United Kingdom, it is probably wise to stress early on how vital it is for leaks of this nature to be at the forefront of regulated companies’ approach to the Bill. Today’s warnings by a Cabinet Minister and former Secretary of State at DCMS about cybersecurity affecting our national infrastructure are relevant here—likewise for public health.

I will not go through the amendment line by line. I am sure that others will want to comment on how it is laid out, the order of it and other matters, which are relevant but do not capture what the amendment is trying to do. However, I will focus on one: the reference to regulated companies having to have regard to reasonably foreseeable harm, as outlined in proposed new subsection (1)(c). I regret that the term “reasonably foreseeable harms” is absent from the Bill, although of course it featured heavily in the preceding White Paper when Sir Jeremy Wright was Secretary of State. The dropping of the “legal but harmful” category raises the question of how Ofcom will future-proof the system. Now that a wide-ranging risk assessment is no longer required by Ofcom, it will be hard to see what harms are coming down the track that might harm children in the future when applied to them or indeed hobble the regime by undermining the ability to look forward with the full resources of Ofcom and the companies working in concert. There are amendments on this issue which we will come to later, including one tabled by the right reverend Prelate the Bishop of Oxford that may test this issue.

The Government confirmed in a Written Answer to me of 8 February that AI products in a user-to-user or search engine service would be covered by the Bill, but the sudden recent explosion of AI products is a very good example of why a more general sense of foreseeability of harms may be required, rather than simply relying, as I think we will have to, on a list of things that we currently know about.

Our Joint Committee report made clear that the inclusion of this overarching objectives amendment would help all of us to ensure that the Online Safety Bill will be easy to understand, not just for service providers but for the public. Its inclusion would mean that we would be able to get into the detail of the Bill with a much better understanding of what the Government are seeking. I see the flow, which the committee was very clear about—having clear objectives that lead into precise duties on the regulated providers, robust powers for the regulator to act when the platforms fail to meet those legal and regulatory requirements, and a continuing role for Parliament, which is something that we will come to in future debates.

The internet is a wonderful invention. The major online services have become central to how people around the world access news and information, do business, play games, and keep in touch with family and friends, and the internet is free to use. But is it free? These services are highly profitable businesses. Where does that money come from? It is a commercial model based on selling targeted advertising. User data—our data—is collected and used to train algorithms to maximise engagement and users’ attention. The length of time and the frequency with which users engage on the platforms increase their value. More spent online means that more advertising reaches users, which leads to more revenue for the companies. It is a vicious circle.

However, we are where we are. Actively seeking to increase engagement through personalisation has the power to create more harmful user experiences for vulnerable people and children, who are more likely to see content which will increase their vulnerabilities or do them harm. The more that people interact with conspiracy theories, for example, the more of them they will see. The grouping together of users with similar interests can create environments which normalise hate speech and extremism. Design features that favour the spread of information over safety facilitate the targeting and amplification of abuse, as we have seen.

There is no doubt that this Online Safety Bill is a key step forward for our citizens and consumers. I have made it absolutely clear that I support the Government in their Bill and that we will do what we can to make sure that it reaches the statute book as quickly as possible. It is also important to remember that it is showing other democratic societies that want to bring accountability and responsibility to the internet how it can be done, and I believe that this Bill will do it very well. However, it will only be effective if online services are held accountable for the design and operation of their systems by the regulations introduced by this Bill—and of course its successors, because this is the first of a number of Bills which we know we will be seeing in this area. There are very important points here about how we approach this, the need to maintain the will of Parliament throughout these areas, and the appointment of an independent regulator rather than those who happen to reside in Silicon Valley.

--- Later in debate ---

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

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

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

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

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

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

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

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

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

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

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

“do not endanger public health or national security”.

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

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

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

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

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

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

“should be for Ofcom”.

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

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

and

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

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

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

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

[Lord Stevenson of Balmacara (Lab)]

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

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

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

Online Safety Bill

Lord Stevenson of Balmacara Excerpts

2nd reading
Wednesday 1st February 2023 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I start by apologising for having absented myself during part of the debate. I promise those noble Lords whose speeches I missed that I will read them very carefully. The reason is slightly self-serving: I decided to tear up my speech, for two reasons. First, I suddenly realised that the noble Lord, Lord Clement-Jones, being the brilliant lawyer he has been and still is, would probably say everything I was going to say but better—and indeed that has proved to be the case. There is not much point in me boring noble Lords by trying to repeat what he said. The list of items I had is almost exactly identical. I did not give it to him, but we had an exchange of views before the debate, so I was not surprised by that. I will come on to that point.

Secondly, I want to deal with the noble Lord, Lord Hastings, who challenged me in my very junior position as an acting Front-Bencher to commit the Labour Government to a future policy on media education. I am sure the noble Lord opposite will not out-trump me on this one, but I cannot do that. I will, however, get back at him, because I will say that the BBC has never been in better shape than when he was the PR person operating at the front of it. In fact, I do not think it has recovered since he left, so there you are. I think that what he said was quite important.

One of the big, strange things about media education—in fact, this is true of most education policy—is that it is very hard to get changes in the education system. That is partly because it is now so disparate and uncoordinated in many ways, through policy, that you cannot say that there is a core curriculum, or that it will include media education and that that will be examined on the following days, as they might do in other countries such as France. The Government should think very hard about how they might take forward the idea from the noble Lord, Lord Hastings. My answer is that you have to examine media education or assess it in some way, otherwise schools will not care about it. This is really a question for Ofsted, not Ofcom. In a sense, the Government have got it right there, but if we could put some pressure on Ofsted to include in its assessment of all schools—indeed, all education at that level—some form of ability to assess whether media education is meeting the needs of Ofcom or the needs of society, we might make some progress. Let us work on that together.

I declare an interest as a member of the Joint Committee on the pre-legislative scrutiny of the Bill. That was a wonderful experience and has been mentioned by others. I am also a former member of the Communications and Digital Committee. I should also drop in that I am veteran of the Digital Economy Act—much mentioned today—so I have been there, got the scars and am aware of the issues very clearly.

The second reason why I wanted to tear up my speech was that it seemed to me that, as the noble Lord, Lord Clement-Jones, said, there has been an extraordinary amount of agreement on the issues facing the House in trying to get this Bill right. They are not fuelled in any sense by party-political points, because we have no political issue in this, and I do not think the Liberal Democrats or Cross Benches have. We are talking about an issue that we want to do together. I will come back at the end with a proposal, which I think is slightly novel, for how we might take advantage of that. I do not think we want to get ourselves into a situation of antagonism—firing amendments across the Dispatch Box during Committee —because we are broadly agreed about where we want to go. Yes, there are difference of detail, but we have to think about it. I want to come back to that as an issue—and that was what I was doing while I was away.

I want to go back to the introduction to the Joint Committee report, as I would have done in my original speech, because it says so much about what we have been doing in the last two or three years. Self-regulation of online services had failed. While the online world has revolutionised our lives and created many benefits, underlying systems designed to service business models based on data harvesting and micro-targeted advertising shape the way we experience it. Algorithms, invisible to the public, decide what we see, hear and experience. For some service providers, this means valuing the engagement of users at all cost, regardless of what holds their attention. This can result in amplifying the false over the true, the extreme over the considered, and the harmful over the benign. The human cost can be counted in mass murders in Myanmar, intensive care beds full of unvaccinated Covid-19 patients, insurrection at the US Capitol, and teenagers sent down rabbit holes of content promoting self-harm, eating disorders and suicide. As we have learned, we do not just mean teenagers—there are others involved in that. As the noble Baroness, Lady Kidron, and others have reminded us, too many children have suffered from infractions of this type. I pay tribute, again, to Ian Russell—who is still with us—for his campaign and for his extraordinary willingness to share his story. We all owe him a great debt.

These points, already made in other speeches, are important; they are at the heart of what this is about. This is about finding a way of organising what we all value, want and need, in a way that will allow us to get the benefits from it without paying the price that we already are. This debate, in the best traditions of this House, has brought a lot of views to bear on this, but, as I have tried to explain, it seems to me that a lot of them are very similar. There are differences and one or two outliers, but the points made broadly point in one direction: that the Bill is nearly there. It needs a little work and a bit of polishing and it will get over the finishing line.

The Bill needs to be in its best shape—there is no doubt about that—but we could identify alongside it the other issues that we will need to return to in future. We should not worry about that; I think we have all agreed that there will be other opportunities to do so. As we were reminded by the noble Lord, Lord Black, and others, there are other elements that also need to go ahead, and we should be thinking harder about them—the DMU and the need for competition in this whole area. As I said, the noble Lord, Lord Clement-Jones, gave a very good summary of all the issues; I will not run through them again because it was exactly what I would have said myself.

We are in a very strange situation. There is no political divide and we all want the same things: we want the Bill improved and we want to see it pass as soon as possible. I am assuming that the Government will work with us on that—that is an assumption, because that is not the normal way it goes. I am assuming also that they recognise that there are one or two quite sensible compromises to be made—again, that is not a given, but I am getting a few nods that suggest that it might be the case. From this side, I cannot think of any issue that I have heard today, or in any of the discussions we have had recently about this Bill—and they have gone on for a number of years—that we would push to ping-pong. That is very unusual.

I suggest that we try to work together on getting the best Bill we can—while, of course, going through the various stages, because these things all eventually have to go back into the Bill—avoiding the war of attrition approach that so often bedevils the work we do here. Such an approach is important when there are big political issues at stake, but there are not, so let us use that and try to move forward. I would like to get together quite quickly and identify the policies we can move on together, and to take a route forward which will minimise the votes and the dissent and yet deliver the Bill, let us hope, by Report. That is a big ask; I do not think it has been done, except during wartime. But we are at war—at war with these people who are trying to run our lives, and we should try to get together and defeat them. It is unusual, but we live in unusual times. I look forward to hearing from the Minister.

Channel 4

Lord Stevenson of Balmacara Excerpts

Wednesday 11th January 2023 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

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

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

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

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

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

Channel 4: Annual Report

Lord Stevenson of Balmacara Excerpts

Thursday 21st July 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

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

[Lord Stevenson of Balmacara (Lab)]

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

[Lord Parkinson of Whitley Bay (Con)]

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

Channel 4 Privatisation

Lord Stevenson of Balmacara Excerpts

Tuesday 5th April 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

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

[Lord Stevenson of Balmacara (Lab)]

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

[Lord Parkinson of Whitley Bay (Con)]

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

Young Audiences Content Fund: Replacement

Lord Stevenson of Balmacara Excerpts

Thursday 17th March 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

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

[Lord Stevenson of Balmacara (Lab)]

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

[Lord Parkinson of Whitley Bay (Con)]

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

Digital Technology (Democracy and Digital Technologies Committee Report)

Lord Stevenson of Balmacara Excerpts

Friday 11th March 2022 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, the previous speakers in this debate have proven beyond doubt that this House should have had the chance to debate this excellent report long before now. For there to be a delay of nearly 18 months before such a debate on such a major report is insulting to those who gave evidence and does a disservice to the work of the clerks, the advisers and the distinguished members of the committee, including the chairman, whom we warmly welcome today and are glad to see observing the debate while also regretting that he is not able to participate. I am sure that he, too, would have had insights to offer to us.

As others have said, the events of the past 18 months have indeed moved things forward. Is there any real doubt now in our minds that Russia and other foreign Governments have used the internet to affect many recent electoral events in this country, including two general elections and the Brexit referendum? My noble friend Lady Morris reminded us about the Capitol riots. The way social media amplifies the false over the true, the extreme over the considered, and the harmful over the benign has a societal cost, and is a real and present harm to ensuring trust in our democracy. The growth in use of disinformation and misinformation is exponential and undermines the trust so vital to our democratic processes, as exemplified in the report.

But there are other things: data-driven political campaigning is growing. It is not limited to specific political advertising on social media and is therefore largely unregulated. We need greater transparency in how political campaigners obtain and use personal data, including what is called “data inferencing”.

I was a member of the excellent Joint Committee on the pre-legislative scrutiny of the online safety Bill, already referred to, and I am confident that when the noble Baroness, Lady Kidron, and the noble Lord, Lord Clement-Jones, speak, they will acknowledge, as I do, that much of our thinking on this issue was influenced by the arguments and findings of the excellent report that we are discussing today.

The report of our Joint Committee was unanimous, and we await the Government’s response to it. If it is adopted, the report proposes a sea change in the way we regulate social media companies. As my noble friend Lord Harris just said, their business model, based on data harvesting and microtargeted advertising, values engagement of users at all costs, regardless of what holds their attention. While the need to safeguard our children from being likely to access inappropriate material online has to be a priority, it is important to recognise that we are dealing with huge companies whose staggeringly large profits are made at the expense of key issues we must have regard to, such as social cohesion and democratic engagement.

My argument today is that leaving this area of activity unregulated will cause great harm and destroy trust in our democracy, and it must be legislated for. There is a way forward. If the recommendations of our Joint Committee are accepted, the revised online safety Bill will at last hold regulated online services fully responsible for the risks they create by their design and operation, including the algorithms. The key principle is that the laws governing our democracy and elections, like those affecting social intercourse, need to be upheld in the virtual world. If a platform carries, promotes or recommends material to its users which would be against our electoral laws, or recommends or endorses disinformation or misinformation in a way likely to influence elections, a regulator must have robust powers to act when regulated companies fail to do so.

The consequence of this approach is that we urgently need to look at the powers available to the Electoral Commission, as regulator, and ensure that they are fit for purpose in the virtual world. The Joint Committee did not have time to do that properly in the limited time allocated to us to review the draft Bill. At the very least, the Government should be using the current Elections Bill, or commit to future legislation, to ensure that the powers that will be made available to Ofcom shortly can be shared with the Electoral Commission and the ICO, and that there will be no barrier to joint action against firms, organisations or individuals threatening the integrity of our democratic processes. It is that important. Fines and sanctions need to be commensurate with those being made available to Ofcom and the ICO for other harms.

Finally, consideration must be given to ensuring that the Electoral Commission is admitted as a member of the statutory body which we hope will replace the informal DRF, and which we hope that Parliament will set up to co-ordinate regulatory action in the digital world. I look forward to the Minister’s response.