Online Safety Bill

Viscount Colville of Culross Excerpts

Committee stage
Tuesday 9th May 2023 Lords Chamber

[Baroness Bull (CB)]

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

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

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

[Viscount Colville of Culross (CB)]

My Lords, I put my name to Amendment 51, which is also in the name of the noble Lords, Lord Stevenson and Lord McNally. I have done so because I think Clause 15 is too broad and too vague. I declare an interest, having been a journalist for my entire career. I am currently a series producer of a series of programmes on Ukraine.

This clause allows journalism on the internet to be defined simply as the dissemination of information, which surely covers all posts on the internet. Anyone can claim that they are a journalist if that is the definition. My concern is that it will make a nonsense of the Bill if all content is covered as journalism.

I support the aims behind the clause to protect journalism in line with Article 10. However, I am also aware of the second part of Article 10, which warns that freedom of speech must be balanced by duties and responsibilities in a democratic society. This amendment aims to hone the definition of journalism to that which is in the public interest. In doing so, I hope it will respond to the demands of the second part of Article 10.

It has never been more important to create this definition of journalism in the public interest. We are seeing legacy journalism of newspapers and linear television being supplanted by digital journalism. Both legacy and new journalism need to be protected. This can be a single citizen journalist, or an organisation like Bellingcat, which draws on millions of digital datapoints to create astonishing digital journalism to prove things such as that Russian separatist fighters shot down flight MH17 over Ukraine.

The Government’s view is that the definition of “in the public interest” is too vague to be useful to tech platforms when they are systematically filtering through possible journalistic content that needs to be protected. I do not agree. The term “public interest” is well known to the courts from the Defamation Act 2013. The law covers the motivation of a journalist, but does not go on to define the content of journalism to prove that it is in the public interest.

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Amendment 51 in the name of the noble Lord, Lord Stevenson of Balmacara, seeks to change the duty of category 1 services to protect journalistic content so it applies only to journalism which they have judged to be in the public interest. This would delegate an inappropriate amount of power to platforms. Category 1 platforms are not in a position to decide what information is in the interests of the British public. Requiring them to do so would undermine why we introduced the Clause 15 duties—

[Viscount Colville of Culross (CB)]

Why would it not be possible for us to try to define what the public interest might be, and not leave it to the platforms to do so?

[Lord Parkinson of Whitley Bay (Con)]

I ask the noble Viscount to bear with me. I will come on to this a bit later. I do not think it is for category 1 platforms to do so.

We have introduced Clause 15 to reduce the powers that the major technology companies have over what journalism is made available to UK users. Accordingly, Clause 15 requires category 1 providers to set clear terms of service which explain how they take the importance of journalistic content into account when making their moderation decisions. These duties will not stop platforms removing journalistic content. Platforms have the flexibility to set their own journalism policies, but they must enforce them consistently. They will not be able to remove journalistic content arbitrarily. This will ensure that platforms give all users of journalism due process when making content moderation decisions. Amendment 51 would mean that, where platforms subjectively reached a decision that journalism was not conducive to the public good, they would not have to give it due process. Platforms could continue to treat important journalistic content arbitrarily where they decided that this content was not in the public interest of the UK.

In his first remarks on this group the noble Lord, Lord Stevenson, engaged with the question of how companies will identify content of democratic importance, which is content that seeks to contribute to democratic political debate in the UK at a national and local level. It will be broad enough to cover all political debates, including grass-roots campaigns and smaller parties. While platforms will have some discretion about what their policies in this area are, the policies will need to ensure that platforms are balancing the importance of protecting democratic content with their safety duties. For example, platforms will need to consider whether the public interest in seeing some types of content outweighs the potential harm it could cause. This will require companies to set out in their terms of service how they will treat different types of content and the systems and processes they have in place to protect such content.

Amendments 57 and 62, in the name of my noble friend Lord Kamall, seek to impose new duties on companies to protect a broader range of users’ rights, as well as to pay particular attention to the freedom of expression of users with protected characteristics. As previously set out, services will have duties to safeguard the freedom of expression of all users, regardless of their characteristics. Moreover, UK providers have existing duties under the Equality Act 2010 not to discriminate against people with characteristics which are protected in that Act. Given the range of rights included in Amendment 57, it is not clear what this would require from service providers in practice, and their relevance to service providers would likely vary between different rights.

Amendment 60, in the name of the noble Lord, Lord Clement-Jones, and Amendment 88, in the name of the noble Lord, Lord Stevenson, probe whether references to privacy law in Clauses 18 and 28 include Article 8 of the European Convention on Human Rights. That convention applies to member states which are signatories. Article 8(1) requires signatories to ensure the right to respect for private and family life, home and correspondence, subject to limited derogations that must be in accordance with the law and necessary in a democratic society. The obligations flowing from Article 8 do not apply to individuals or to private companies and it would not make sense for these obligations to be applied in this way, given that states which are signatories will need to decide under Article 8(2) which restrictions on the Article 8(1) right they need to impose. It would not be appropriate or possible for private companies to make decisions on such restrictions.

Providers will, however, need to comply with all UK statutory and common-law provisions relating to privacy, and must therefore implement safeguards for user privacy when meeting their safety duties. More broadly, Ofcom is bound by the Human Rights Act 1998 and must therefore uphold Article 8 of the European Convention on Human Rights when implementing the Bill’s regime.