BBC: Royal Charter

Viscount Colville of Culross Excerpts

Monday 15th January 2024 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

The royal charter sets out clear expectations for how the BBC impartially delivers news output. It is for the BBC to decide how it does this and through which programmes, however beloved they are in your Lordships’ House. I know that Members of your Lordships’ House have worked on “Newsnight” and many watch it and get their news that way. However, it is important that the BBC makes the decisions on how it adheres to the obligations set out in the royal charter and in its public purpose. It is also important that we do not have a Government who tell the national broadcaster how to report the news.

[Viscount Colville of Culross (CB)]

My Lords, I declare an interest as a former news editor of “Newsnight” and a freelance TV producer. In the last year, commissions for factual programmes on all channels have been massively reduced. Over 70% of freelance documentary television producers are said to be without work. Does the Minister agree that Ofcom should investigate how the massive reduction in BBC budgets over the last decade has adversely affected the commissioning of documentaries on the BBC?

[Lord Parkinson of Whitley Bay (Con)]

Ofcom has a role under the current royal charter to see how the BBC is meeting its obligations. It does this independently but will have heard the point made by the noble Viscount. More broadly, the Government are working on growing our creative industries so that there are many other avenues for brilliant documentary makers to add to the public understanding of current issues that are of interest to us all as globally engaged people, and many ways in which people can get their news and current affairs programming.

Loot Boxes in Video Games

Viscount Colville of Culross Excerpts

Wednesday 13th December 2023 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

I thank the noble Lord for those comments. As I said in both my original and subsequent replies to the noble Lord, Lord Foster, we are working closely with academics to support independent scrutiny of the industry-led measures that are being taken, and we want to see how those work and bed in. We have developed and published a research framework so that there can be independent and rigorous analysis to give us the evidence that we need to inform policy-making.

[Viscount Colville of Culross (CB)]

My Lords, players who buy loot boxes, including young people, are often victims of well-known psychological techniques to nudge them towards purchasing ever-greater features in the loot boxes. These include special, time-limited offers, price anchoring and the obfuscation of costs. Is the Minister satisfied that self-regulation will stop these behaviours in the loot box market?

[Lord Parkinson of Whitley Bay (Con)]

As the noble Viscount will know, we have taken action more widely to ensure that people at risk of gambling harm, including children and vulnerable people, are protected. We want to ensure that people are able to play video games safely online and to enjoy them, but also to be protected against any harms that may occur. That is why we are keen to see the industry-led guidelines being implemented and why we will monitor their impact closely.

Online Safety Bill

Viscount Colville of Culross Excerpts

3rd reading
Wednesday 6th September 2023 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I, too, join noble Lords in thanking the Minister for the way in which he has addressed my concerns about aspects of the Bill and has wanted to enhance particularly the protection of women and girls from the kind of threats that they experience online. I really feel that the Minister has been exemplary in the way in which he has interacted with everyone in this House who has wanted to improve the Bill and has come to him with good will. He has listened and his team have been absolutely outstanding in the work that they have done. I express my gratitude to him.

[Viscount Colville of Culross (CB)]

My Lords, I, too, thank the Minister for the great improvements that the Government have made to the Secretary of State’s powers in the Bill during its passage through this House. I rise to speak briefly today to praise the Government’s new Amendments 1 and 2 to Clause 44. As a journalist, I was worried by the lack of transparency around these powers in the clause; I am glad that the lessons of Section 94 of the Telecommunications Act 1984, which had to be rescinded, have been learned. In a world of conspiracy theories that can be damaging to public trust and governmental and regulatory process, it has never been more important that Parliament and the public are informed about the actions of government when giving directions to Ofcom about the draft codes of practice. So I am glad that these new amendments resolve those concerns.

[Baroness Morgan of Cotes (Con)]

My Lords, I welcome Amendments 5 and 6, as well as the amendments that reflect the work done and comments made in earlier stages of this debate by the noble Baroness, Lady Kennedy. Of course, we are not quite there yet with this Bill, but we are well on the way as this is the Bill’s last formal stage in this Chamber before it goes back to the House of Commons.

Amendments 5 and 6 relate to the categorisation of platforms. I do not want to steal my noble friend’s thunder, but I echo the comments made about the engagement both from my noble friend the Minister and from the Secretary of State. I am delighted that the indications I have received are that they will accept the amendment to Schedule 11, which this House voted on just before the Recess; that is a significant and extremely welcome change.

When commentators outside talk about the work of a revising Chamber, I hope that this Bill will be used as a model for cross-party, non-partisan engagement in how we make a Bill as good as it possibly can be—particularly when it is as ground-breaking and novel as this one is. My noble friend the Minister said in a letter to all of us that this Bill had been strengthened in this Chamber, and I think that is absolutely right.

I also want to echo thanks to the Bill team, some of whom I was working with four years ago when we were talking about this Bill. They have stuck with the Bill through thick and thin. Also, I thank noble Lords across the House for their support for the amendments but also all of those outside this House who have committed such time, effort, support and expertise to making sure this Bill is as good as possible. I wish it well with its final stages. I think we all look forward to both Royal Assent and also the next big challenge, which is implementation.

Online Safety Bill

Viscount Colville of Culross Excerpts

Report stage
Monday 17th July 2023 Lords Chamber

[Lord Allan of Hallam (LD)]

My Lords, we are coming to some critical amendments on a very important issue relatively late in the Bill, having had relatively little discussion on it. It is not often that committees of this House sit around and say, “We need more lawyers”, but this is one of those areas where that was true.

Notwithstanding the blushes of my noble friend on the Front Bench here, interestingly we have not had in our debate significant input from people who understand the law of freedom of expression and wish to contribute to our discussions on how online platforms should deal with questions of the legality of content. These questions are crucial to the Bill, which, if it does nothing else, tells online platforms that they have to be really robust in taking action against content that is deemed to be illegal under a broad swathe of law in the United Kingdom that criminalises certain forms of speech.

We are heavy with providers, and we are saying to them, “If you fail at this, you’re in big trouble”. The pressure to deal with illegal content will be huge, yet illegality itself covers a broad spectrum, from child sexual exploitation and abuse material, where in many cases it is obvious from the material that it is illegal and there is strict liability—there is never any excuse for distributing that material—and pretty much everyone everywhere in the world would agree that it should be criminalised and removed from the internet, through to things that we discussed in Committee, such as public order offences, where, under some interpretations of Section 5 of the Public Order Act, swearing at somebody or looking at them in a funny way in the street could be deemed alarming and harassing. There are people who interpret public order offences in this very broad sense, where there would be a lot less agreement about whether a specific action is or is not illegal and whether the law is correctly calibrated or being used oppressively. So we have this broad spectrum of illegality.

The question we need to consider is where we want providers to draw the line. They will be making judgments on a daily basis. I said previously that I had to make those judgments in my job. I would write to lawyers and they would send back an expensive piece of paper that said, “This is likely to be illegal”, or, “This is likely not to be illegal”. It never said that it was definitely illegal or definitely not illegal, apart from the content I have described, such as child sexual abuse. You would not need to send that, but you would send the bulk of the issues that we are dealing with to a lawyer. If you sent it to a second lawyer, you would get another “likely” or “not likely”, and you would have to come to some kind of consensus view as to the level of risk you wished to take on that particular form of speech or piece of content.

This is really challenging in areas such as hate speech, where exactly the same language has a completely different meaning in different contexts, and may or may not be illegal. Again, to give a concrete example, we would often deal with anti-Semitic content being shared by anti-anti-Semitic groups—people trying to raise awareness of anti-Semitic speech. Our reviewers would quite commonly remove the speech: they would see it and it would look like grossly violating anti-Semitic speech. Only later would they realise that the person was sharing it for awareness. The N-word is a gross term of racial abuse, but if you are an online platform you permit it a lot of the time, because if people use it self-referentially they expect to be able to use it. If you start removing it they would naturally get very upset. People expect to use it if it is in song lyrics and they are sharing music. I could give thousands of examples of speech that may or may not be illegal depending entirely on the context in which it is being used.

We will be asking platforms to make those judgments on our behalf. They will have to take it seriously, because if they let something through that is illegal they will be in serious trouble. If they misjudged it and thought the anti-Semitic hate speech was being circulated by Jewish groups to promote awareness but it turned out it was being circulated by a Nazi group to attack people and that fell foul of UK law, they would be in trouble. These judgments are critical.

We have the test in Clause 173, which says that platforms should decide whether they have “reasonable grounds to infer” that something is illegal. In Committee, we debated changing that to a higher bar, and said that we wanted a stronger evidential basis. That did not find favour with the Government. We hoped they might raise the bar themselves unilaterally, but they have not. However, we come back again in a different way to try to be helpful, because I do not think that the Government want excessive censorship. They have said throughout the Bill’s passage that they are not looking for platforms to be overly censorious. We looked at the wording again and thought about how we could ensure that the bar is not operated in a way that I do not think that the Government intend. We certainly would not want that to happen.

We look at the current wording in Clause 173 and see that the test there has two elements. One is: “Do you have reasonable grounds to infer?” and then a clause in brackets after that says, “If you do have reasonable grounds to infer, you must treat the content as illegal”. In this amendment we seek to remove the second part of that phrasing because it seems problematic. If we say to the platform, “Reasonable grounds to infer, not certainty”—and it is weird to put “inference”, which is by definition mushy, with “must”, which is very certain, into the same clause—we are saying, “If you have this mushy inference, you must treat it as illegal”, which seems quite problematic. Certainly, if I were working at a platform, the way I would interpret that is: “If in doubt, take it out”. That is the only way you can interpret that “must”, and that is really problematic. Again, I know that that is not the Government’s intention, and if it were child sexual exploitation material, of course you “must”. However, if it is the kind of abusive content that you have reasonable grounds to infer may be an offence under the Public Order Act, “must” you always treat that as illegal? As I read the rest of the Bill, if you are treating it as illegal, the sense is that you should remove it.

That is what we are trying to get at. There is a clear understanding from the Government that their intention is “must” when it comes to that hard end of very bad, very clearly bad content. However, we need something else—a different kind of behaviour where we are dealing with content where it is much more marginal. Otherwise, the price we will pay will be in freedom of expression.

People in the United Kingdom publish quite robust, sweary language. I sometimes think that some of the rules we apply penalise the vernacular. People who use sweary, robust language may be doing so entirely legally—the United Kingdom does not generally restrict people from using that kind of language. However, we risk heading towards a scenario where people post such content in future, and they will find that the platform takes it down. They will complain to the platform, saying, “Why the hell did you take my content down?”—in fact, they will probably use stronger words than that to register their complaint. When they do, the platform will say, “We had reasonable grounds to infer that that was in breach of the Public Order Act, for example, because somebody might feel alarmed, harassed or distressed by it. Oh, and look—in this clause, it says we ‘must’ treat it as illegal. Sorry—there is nothing else we can do. We would have loved to have been able to exercise the benefit of the doubt and to allow you to carry on using that kind of language, because we think there is some margin where you have not behaved in an illegal way. But unfortunately, because of the way that Clause 173 has been drafted, our lawyers tell us we cannot afford to take the risk”.

In the amendment we are trying to—I think—help the Government to get out of a situation which, as I say, I do not think they want. However, I fear that the totality of the wording of Clause 173, this low bar for the test and the “must treat as” language, will lead to that outcome where platforms will take the attitude: “Safety first; if in doubt, take it out”, and I do not think that that is the regime we want. I beg to move.

[Viscount Colville of Culross (CB)]

My Lords, I regret I was unable to be present in Committee to deliver my speech about the chilling effect that the present definition of illegality in the Bill will have on free speech on the internet.

I am still concerned about Clause 173, which directs platforms how to come to the judgment on what is illegal. My concern is that the criterion for illegality, “reasonable grounds to infer” that elements of the content are illegal, will encourage the tech companies to take down content which is not necessarily illegal but which they infer could be. Indeed, the noble Lord, Lord Allan, gave us a whole list of examples of where that might happen. Unfortunately, in Committee there was little support for a higher bar when asking the platforms to judge what illegal content is. However, I have added my name to Amendment 228, put forward by the noble Lord, Lord Allan, because, as he has just said, it is a much less radical way of enhancing free speech when platforms are not certain whether to take down content which they infer is illegal.

The deletion of part of Clause 173(5) is a moderate proposal. It still leaves intact the definition for the platforms of how they are to make the judgment on the illegality of content, but it takes out the compulsory element in this judgment. I believe that it will have the biggest impact on the moderation system. Some of those systems are run by machines, but many of the moderation processes, such as Meta’s Facebook, involve thousands of human beings. The deletion of the second part of Clause 173(5), which demands that they take down content that they infer is illegal, will give them more leeway to err on the side of freedom of speech. I hope that this extra leeway to encourage free speech will also be included in the way that algorithms moderate our content.

Online Safety Bill

Viscount Colville of Culross Excerpts

Report stage
Wednesday 12th July 2023 Lords Chamber

Overall, we need accountable decision-makers, not unaccountable regulators, and we need them to be subject to parliamentary scrutiny. That is the burden of my argument and the effect of my amendments. I hope that they will command the support of the House.

[Viscount Colville of Culross (CB)]

My Lords, the codes of practice are among the most important documents that Ofcom will produce as a result of the Bill—in effect, deciding what content we, the users of the internet, will see. The Government’s right to modify these drafts affects us all, so it is absolutely essential that the codes are trusted.

I, too, welcome the Government’s Amendments 134 to 138, which are a huge improvement on the Clause 39 that was presented in Committee. I am especially grateful that the Government have not proceeded with including economic conditions as a reason for the Secretary of State to modify draft codes, which the noble Baroness, Lady Harding, pointed out in Committee would be very damaging. But I would like the Minister to go further, which is why I put my name to Amendments 139, 140, 144 and 145.

Amendment 139 is so important at the moment. My fear is about the opt-out from publishing these directions from the Secretary of State for Ofcom to modify the draft codes, which will then allow them to be made behind closed doors between the Government and the regulator. This should not be allowed to happen. It would happen at a time when trust in the Government is low and there is a feeling that so many decisions affecting us all are taken without our knowledge. Surely it is right that there should be as much transparency as possible in exposing the pressure that the Minister is placing on the regulator. I hope that, if this amendment is adopted, it will allow Parliament to impose the bright light of transparency on the entire process, which is in danger of becoming opaque.

I am sure that no one wants a repeat of what happened under Section 94 of the Telecommunications Act 1984, which gave the Secretary of State power to give directions of a “general character” to anyone, in the “interests of national security” or international relations, as long as they did not disclose important information to Parliament. The Minister’s power to operate in total secrecy, without any accountability to Parliament, was seen by many as wrong and undemocratic. It was subsequently repealed. Amendments 139 and 140 will prevent the creation of a similar problem.

Likewise, I support Amendment 144, which builds on the previous amendments, as another brake on the control of the Secretary of State over this important area of regulations. Noble Lords in this House know how much the Government dislike legislative ping-pong—which we will see later this evening, I suspect. I ask the Minister to transfer this dislike to limiting ping-pong between the Government and the regulator over the drafting of codes of practice. It would also prevent the Secretary of State or civil servants expanding their control of the draft codes of practice from initial parameters to slightly wider sets of parameters each time that they are returned to the Minister for consideration. It will force the civil servants and the Secretary of State to make a judgment on the limitation of content and ensure that they stick to it. As it is, the Secretary of State has two bites of the cherry. They are involved in the original shaping of the draft codes of practice and then they can respond to Ofcom’s formulation. I hope the Minister would agree that it is sensible to stop this process from carrying on indefinitely. I want the users of the digital world to have full faith that the control of online content they see is above board —and not the result of secretive government overreach.

[Baroness Harding of Winscombe (Con)]

My Lords, not for the first time I find myself in quite a different place from my noble friend Lord Moylan. Before I go through some detailed comments on the amendments, I want to reflect that at the root of our disagreement is a fundamental view about how serious online safety is. The logical corollary of my noble friend’s argument is that all decisions should be taken by Secretaries of State and scrutinised in Parliament. We do not do that in other technical areas of health and safety in the physical world and we should not do that in the digital world, which is why I take such a different view—

--- Later in debate ---

[Lord McNally (LD)]

My Lords, my name is also to this amendment. I am moved by a phrase used by the noble Lord, Lord Stevenson, on Monday; he said the passage of this Bill has been a “series of conversations”. So it has been. The way the Minister has engaged with the House on many of the concerns that the Bill tries to cover has been greatly to his credit.

It is somewhat unknown how much the new technologies will impact on our democracy, our privacy and the safety of our children, although they have all been discussed with great thoroughness. That is why the opt-out for recognised news publishers is something of a puzzle, unless you assume that the Government have caved in to pressure from that sector. Why should it be given this opt-out? It is partly because if you ask the press to take responsibility in any way, it becomes like Violet Elizabeth Bott in the Just William stories; it “thkweems and thkweems”—usually led by the noble Lord, Lord Black, whom I am glad to see in his place —and talks about press freedom.

My skin in this game is that I was the Minister in the Lords when the Leveson inquiry was under way and when we took action to try to implement its findings. It is interesting that at that point there was cross-party agreement in both Houses on how to implement them. I advise anybody intending to go into coalitions in future not to take the Conservative Party’s assurances on such matters totally at face value, as that cross-party agreement to implement Leveson was reneged on by the Conservative Party under pressure from the main newspaper publishers.

It was a tragedy, because the “series of conversations” that the noble Lord, Lord Stevenson, referred to will be ongoing. We will not let the press off the hook, no matter how much it wields its power. It is just over 90 years since Stanley Baldwin’s famous accusation of

“power without responsibility—the prerogative of the harlot throughout the ages”.

It is just over 30 years since David Mellor warned the press that it was in the “last chance saloon” and just over 10 years since Rupert Murdoch said that appearing before the Leveson inquiry, with a curious choice of language, was

“the most humble day of my life”.

Of course, like water off a duck’s back, once the pressure was off and the deal had been done with the Conservative Party, we could carry on on our own merry way.

It was a tragedy too because the Leveson settlement—as I think the PRP and Impress have proved—works perfectly well. It is neither state controlled nor an imposition on a free press. Like the noble Lord, Lord Lipsey, I greatly resent the idea that this is somehow an attempt to impose on a free press. It is an attempt to get the press to help the whole of our democracy and make things work properly, just as this Bill attempts to do.

Someone mentioned Rupert Murdoch’s recent summer party. The Prime Minister was not the only one who went—so did the leader of the Opposition. I like to think that Mr Attlee would not have gone. I am not sure that my old boss, Jim Callaghan, would have gone. I do not think that either would have flown half way around the world, as Tony Blair did, to treat with him. The truth is that, over the last decade or so, in some ways the situation has got worse. Politicians are more cowed by the press. When I was a Minister and we proposed some reasonably modest piece of radical change, I was told by my Conservative colleague, “We’ll not get that through; the Daily Mail won’t tolerate it”. That pressure on politics means we need politicians with the guts to resist it.

Those who want a genuinely free press would not leave this festering wound. I will not join in the attack on the noble Lord, Lord Faulks, because we worked together very well in coalition. I would prefer to see IPSO reform itself to become Leveson-compliant. That would not bring any of the dangers that we will hear about from the noble Lord, Lord Black, but it would give us a system of press regulation that we could all agree with.

On Section 40, I remember well the discussions about how we would give some incentive to join. A number of my colleagues feel uncomfortable about Section 40 making even the winners pay, but the winner pays only if they are not within a Leveson-compliant system. That was, perhaps innocently, thought of as a carrot to bring the press in, though, of course, it does not read easily. Frankly, if Section 40 were to go but IPSO became Leveson-compliant, that would be a fair deal.

This Bill leaves us with some very dangerous loopholes. Some of the comments underneath in the press and, as the Minister referred to, the newsclips that can be added can be extremely dangerous if children are exposed to them.

There are many other loopholes that this genuflection to press power is going to leave in the Bill and which will lead to problems in the future. Rather than launch another attack—because you can be sure another case will come along or another outrage will happen, and perhaps this time, Parliament will have the guts to deal with it—it would be far better if the media itself saw Leveson for what it was: a masterful, genuine attempt to put a free press within the context of a free society and protect the individuals and institutions in that society in a way that is in all our interests. As the noble Lord, Lord Lipsey, said, we are not pushing this tonight, but we are not going to go away.

[Viscount Colville of Culross (CB)]

My Lords, I have been a journalist my whole career and I have great respect for the noble Lords who put their names to Amendments 159 and 160. However, I cannot support another attempt to lever Section 42 of the Crime and Courts Act into the Bill. In Committee I put my name to Amendment 51, which aims to protect journalism in the public interest. It is crucial to support our news outlets, in the interests of democracy and openness. We are in a world where only a few newspapers, such as the New York Times, manage to make a profit from their digital subscribers. I welcome the protection provided by Clause 50; it is much needed.

In the past decade, the declining state of local journalism has meant there is little coverage of magistrates’ courts and council proceedings, the result being that local public servants are no longer held to account. At a national level, newspapers are more and more reluctant to put money into investigations unless they are certain of an outcome, which is rarely the case. Meanwhile, the tech platforms are using newspapers’ contents for free or paying them little money, while disaggregating news content on their websites so the readers do not even know its provenance. I fear that the digital era is putting our legacy media, which has long been a proud centrepiece of our democracy, in great danger. The inclusion of these amendments would mean that all national newspapers and most local media would be excluded from the protections of the clause. The Bill, which is about regulating the digital world, should not be about trying to limit the number of newspapers and news websites covered by the protections of Clause 50; it would threaten democracy at a local and national level.

[Lord Black of Brentwood (Con)]

My Lords, I am very pleased to say a few words, because I do not want to disappoint my good friend the noble Lord, Lord McNally, who has obviously read the text of my speech before I have even delivered it. I declare my interests as deputy chairman of the Telegraph Media Group and a director of the Regulatory Funding Company, and note my other interests as set out in the register.

It will not come as a surprise that I oppose Amendments 159 and 160. I am not going to detain your Lordships for long; there are other more important things to talk about this evening than this seemingly never-ending issue, about which we had a good discussion in Committee. I am sorry that the two noble Lords were indisposed at that time, and I am glad to see they are back on fighting form. I am dispirited that these amendments surfaced in the first place as I do not think they really have anything to do with online safety and the protection of children. This is a Bill about the platforms, not the press. I will not repeat all the points we discussed at earlier stages. Suffice it to say that, in my view, this is not the time and the place to seek to impose what would be statutory controls on the press, for the first time since that great liberal, John Locke, led the charge for press freedom in 1695 when the Licensing Acts were abolished. Let us be clear: despite what the two noble Lords said, that is what these amendments would do, and I will briefly explain why.

These amendments seek to remove the exemption for news publishers from an onerous statutory regime overseen by Ofcom, which is, as the noble Lord, Lord Lipsey, said, a state regulator, unless they are part of an approved regulator. Yet no serious publisher, by which I mean the whole of the national and regional press, as the noble Viscount, Lord Colville, said—including at least 95% of the industry, from the Manchester Evening News to Cosmopolitan magazine—is ever going to join a regulator which is approved by the state. Even that patron saint of press controls, Sir Brian Leveson, conceded that this was a “principled position” for the industry to take. The net effect of these amendments would be, at a stroke, to subject virtually the entire press to state regulation—a momentous act wholly inimical to any definition of press freedom and free speech—and with very little discussion and absolutely no consultation.

Online Safety Bill

Viscount Colville of Culross Excerpts

Report stage
Monday 10th July 2023 Lords Chamber

As the children’s charity Barnardo’s said—and I declare an interest as vice president—children do not have a voice. I feel that we have a responsibility to protect them, and we must expect the Government to take children into consideration and show that they have a holistic view about protecting them from harm. I hope that the Government will embrace these amendments by continuing to listen to common sense and will support them.

[Viscount Colville of Culross (CB)]

My Lords, it is a great pleasure to follow the veteran campaigner on this issue, the noble Baroness, Lady Benjamin. I, too, rise briefly to support Amendments 35 to 37A, 85 and 240 in the name of my noble friend Lady Kidron.

In Committee, I put my name to amendments that aimed to produce risk assessments on harms to future-proof the Bill. Sadly, they were thought unnecessary by the Government. Now the Minister has another chance to make sure that Ofcom will be able to assess and respond to potential harms from one of the fastest-changing sectors in the world in order to protect our children. I praise the Minister for having come so far but, if this Bill is to stand the test of time, we will have to be prepared for the ever-changing mechanisms that would deliver that content to children. Noble Lords have already told the House about the fast-changing algorithms and the potential of AI to create harms. Many tech companies do not even understand how their algorithms work; a risk assessment of their functions would ensure that they found out soon enough.

In the Communications and Digital Select Committee inquiry into regulating the internet, we recommended that, because the changes in digital delivery and technology were happening so fast, a specific body needed to be set up to horizon scan. In these amendments, we would build these technological changes into this Bill’s regulatory mechanism to safeguard our children in future. I hope that noble Lords will support the amendment.

[Lord Bethell (Con)]

My Lords, I also support the amendments from the noble Baroness, Lady Kidron. It is relatively easy to stand here and make the case for age verification for porn: it is such a black and white subject and it is disgusting pornography, so of course children should be protected from it. Making the case for the design of the attention economy is more subtle and complex—but it is incredibly important, because it is the attention economy that is driving our children to extreme behaviours.

I know this from my own personal life; I enjoy incredibly lovely online content about wild-water swimming, and I have been taken down a death spiral towards ice swimming and have become a compulsive swimmer in extreme temperatures, partly because of the addiction generated by online algorithms. This is a lovely and heart-warming anecdote to give noble Lords a sense of the impact of algorithms on my own imagination, but my children are prone to much more dangerous experiences. The plasticity of their brains is so much more subtle and malleable; they are, like other children, open to all sorts of addiction, depression, sleeplessness and danger from predators. That is the economy that we are looking at.

I point noble Lords to the intervention from the surgeon general in America, Admiral Vivek Murthy—an incredibly impressive individual whom I came across during the pandemic. His 25-page report on the impact of social media on the young of America is incredibly eye-opening reading. Some 95% of American children have come across social media, and one-third of them see it almost constantly, he says. He attributes to the impact of social media depression, anxiety, compulsive behaviours and sleeplessness, as well as what he calls the severe impact on the neurological development of a generation. He calls for a complete bar on all social media for the under-13s and says that his own children will never get anywhere near a mobile phone until they are 16. That is the state of the attention economy that the noble Baroness, Lady Kidron, talks about, and that is the state of the design of our online applications. It is not the content itself but the way in which it is presented to our children, and it traps their imagination in the kind of destructive content that can lead them into all kinds of harms.

Admiral Murthy calls on legislators to act today—and that was followed on the same day by a commitment from the White House to look into this and table legislation to address the kind of design features that the noble Baroness, Lady Kidron, is looking at. I think that we should listen to the surgeon general in America and step up to the challenge that he has given to American legislators. I am enormously grateful to my noble friend the Minister for the incredible amount of work that he has already done to try to bridge the gap in this matter, but there is a way to go. Like my noble friend Lady Harding, I hope very much indeed that he will be able to tell us that he has been able to find a way across the gap, or else I shall be supporting the noble Baroness, Lady Kidron, in her amendment.

Arts and Creative Industries: Freelancers and Self-employed Workers

Viscount Colville of Culross Excerpts

Thursday 15th June 2023 Lords Chamber

[Viscount Colville of Culross (CB)]

I declare an interest as a freelance television producer who also employs freelancers. Recently, I had to staff up a big, six-part television series on Ukraine. I wanted a diversity of staff on the production team—after all, diversity is the essence of creativity—but it was difficult. Throughout the creative industry, schedules have been tightened and budgets cut. The knock-on effect is that young freelancers in this sector are increasingly exploited and many are leaving. This is particularly so for young people from poor and ethnically diverse backgrounds.

The Freelancer Club has done a survey and found that an increasing number of freelancers are being asked to work for free. As a result, 45% cannot afford to cover their living costs. It estimates that it takes 18 months’ work before the average freelancer can afford to cover their living costs from their earnings. I call on the Minister to take steps to improve this woeful situation. It is fine for a freelancer to shadow somebody doing a job, or to do a short internship for free, but once they start creating value for the company they must be paid.

In 2016, New York introduced a law, the Freelance Isn’t Free Act, with the aim of changing the culture in the workplace by demanding that freelance workers are given contracts, timely payment and protection from retaliation. I suggest to the Minister that the New York Act is worth looking at. I also ask him to look at the problems of the introduction of IR35, which other noble Lords have mentioned. It forces self-employed people to become workers. They end up as so-called workers on the books of umbrella companies that demand that they pay PAYE, employee national insurance and, indirectly, employer national insurance.

The Minister will tell me that none of these areas is within scope of the DCMS and that he will pass on my comments to his colleagues in BEIS and the Treasury, but the creative industries are within his scope and they need to be protected by bringing different arms of government together to encourage and support the freelance and self-employed workforce. Maybe a freelance commissioner could do that but, whatever happens, I ask him to solve these problems by generating cross-departmental co-operation to ensure that this vital and talented part of our country’s workforce is encouraged and supported.

Online Safety Bill

Viscount Colville of Culross Excerpts

Committee stage
Thursday 25th May 2023 Lords Chamber

[Baroness Berridge (Con)]

I, too, thank my noble friend the Government Whip. I apologise too if I have spoken out of discourtesy in the Committee: I was not sure whose name was on which amendment, so I will continue.

Physically, I am, of course, working in my home. If that behaviour had happened in the office, it would be an offence, an assault: “intentional or reckless application of unlawful force to another person”. It will not be an offence in the metaverse and it is probably not harassment because it is not a course of conduct.

Although the basic definition of user-to-user content covers the metaverse, as does encountering, as has been mentioned in relation to content under Clause 207, which is broad enough to cover the haptic suits, the restriction to illegal content could be problematic, as the metaverse is a complex of live interactions that mimics real life and such behaviours, including criminal ones. Also, the avatar of an adult could sexually assault the avatar of a child in the metaverse, and with haptic technologies this would not be just a virtual experience. Potentially even more fundamentally than Amendment 125, the Bill is premised on the internet being a solely virtual environment when it comes to content that can harm. But what I am seeking to outline is that conduct can also harm.

I recognise that we cannot catch everything in this Bill at this moment. This research is literally hot off the press; it is only a few weeks old. At the very least, it highlights the need for future-proofing. I am aware that some of the issues I have highlighted about the fundamental difference between conduct and content refer to clauses noble Lords may already have debated. However, I believe that these points are significant. It is just happenstance that the research came out and is hot off the press. I would be grateful if the Minister would meet the Dawes Centre urgently to consider whether there are further changes the Government need to make to the Bill to ensure that it covers the harms I have outlined.

[Viscount Colville of Culross (CB)]

My Lords, I have put my name to Amendments 195, 239 and 263. I also strongly support Amendment 125 in the name of my noble friend Lady Kidron.

During this Committee there have been many claims that a group of amendments is the most significant, but I believe that this group is the most significant. This debate comes after the Prime Minister and the Secretary of State for Science and Technology met the heads of leading AI research companies in Downing Street. The joint statement said:

“They discussed safety measures … to manage risks”


and called for

“international collaboration on AI safety and regulation”.

Surely this Bill is the obvious place to start responding to those concerns. If we do not future-proof this Bill against the changes in digital technology, which are ever increasing at an ever-faster rate, it will be obsolete even before it is implemented.

My greatest concern is the arrival of AI. The noble Baroness, Lady Harding, has reminded us of the warnings from the godfather of AI, Geoffrey Hinton. If he is not listened to, who on earth should we be listening to? I wholeheartedly support Amendment 125. Machine-generated content is present in so much of what we see on the internet, and its presence is increasing daily. It is the future, and it must be within scope of this Bill. I am appalled by the examples that the noble Baroness, Lady Harding, has brought before us.

In the Communications and Digital Committee inquiry on regulating the internet, we decided that horizon scanning was so important that we called for a digital authority to be created which would look for harms developing in the digital world, assess how serious a threat they posed to users and develop a regulated response. The Government did not take up these suggestions. Instead, Ofcom has been given the onerous task of enforcing the triple shield which under this Bill will protect users to different degrees into the future.

Amendment 195 in the name of the right reverend Prelate the Bishop of Oxford will ensure that Ofcom has knowledge of how well the triple shield is working, which must be essential. Surveys of thousands of users undertaken by companies such as Kantar give an invaluable snapshot of what is concerning users now. These must be fed into research by Ofcom to ensure that future developments across the digital space are monitored, updated and brought to the attention of the Secretary of State and Parliament on a regular basis.

Amendment 195 will reveal trends in harms which might not be picked up by Ofcom under the present regime. It will look at the risk arising for individuals from the operation of Part 3 services. Clause 12 on user empowerment duties has a list of content and characteristics from which users can protect themselves. However, the characteristics for which or content with which users can be abused will change over time and these changes need to be researched, anticipated and implemented.

This Bill has proved in its long years of gestation that it takes time to change legislation, while changes on the internet take just minutes or are already here. The regime set up by these future-proofing amendments will at least go some way to protecting users from these fast-evolving harms. I stress to your Lordships’ Committee that this is very much precautionary work. It should be used to inform the Secretary of State of harms which are coming down the line. I do not think it will give power automatically to expand the scope of harms covered by the regime.

Amendment 239 inserts a new clause for an Ofcom future management of risks review. This will help feed into the Secretary of State review regime set out in Clause 159. Clause 159(3)(a) currently looks at ensuring that regulated services are operating using systems and process which, so far as relevant, are minimising the risk of harms to individuals. The wording appears to mean that the Secretary of State will be viewing all harms to individuals. I would be grateful if the Minister could explain to the Committee the scope of the harms set out in Clause 159(3)(a)(i). Are they meant to cover only the harms of illegality and harms to children, or are they part of a wider examination of the harms regime to see whether it needs to be contracted or expanded? I would welcome an explanation of the scope of the Secretary of State’s review.

The real aim of Amendment 263 is to ensure that the Secretary of State looks at research work carried out by Ofcom. I am not sure how politicians will come to any conclusions in the Clause 159 review unless they are required to look at all the research published by Ofcom on future risk. I would like the Minister to explain what research the Secretary of State would rely on for this review unless this amendment is accepted. I hope Amendment 263 will also encourage the Secretary of State to look at possible harms not only from content, but also from the means of delivering this content.

This aim was the whole point of Amendment 261, which has already been debated. However, it needs to be borne in mind when considering that harms come not just from content, but also from the machine technology which delivers it. Every day we read about new developments and threats posed by a fast-evolving internet. Today it is concerns about ChatGPT and the race for the most sophisticated artificial intelligence. The amendments in this group will provide much-needed reinforcement to ensure that the Online Safety Bill remains a beacon for continuing safety online.

[The Lord Bishop of Chelmsford]

My Lords, I shall speak in favour of Amendments 195, 239 and 263, tabled in the names of my right reverend friend the Bishop of Oxford, the noble Lord, Lord Clement-Jones, and the noble Viscount, Lord Colville of Culross, who I thank for his comments.

My right reverend friend the Bishop of Oxford regrets that he is unable to attend today’s debate. I know he would have liked to be here. My right reverend friend tells me that the Government’s Centre for Data Ethics and Innovation, of which he was a founding member, devoted considerable resource to horizon scanning in its early years, looking for the ways in which AI and tech would develop across the world. The centre’s analysis reflected a single common thread: new technologies are developing faster than we can track them and they bring with them the risk of significant harms.

This Bill has also changed over time. It now sets out two main duties: the illegal content duty and the children duty. These duties have been examined and debated for years, including by the joint scrutiny committee. They are refined and comprehensive. Risk assessments are required to be “suitable and sufficient”, which is traditional language from 20 years of risk-based regulation. It ensures that the duties are fit for purpose and proportionate. The duties must be kept up to date and in line with any service changes. Recent government amendments now helpfully require companies to report to Ofcom and publish summaries of their findings.

However, in respect of harms to adults, in November last year the Government suddenly took a different tack. They introduced two new groups of duties as part of a novel triple shield framework, supplementing the duty to remove illegal harms with a duty to comply with their own terms of service and a duty to provide user empowerment tools. These new duties are quite different in style to the illegal content and children duties. They have not benefited from the prior years of consultation.

As this Committee’s debates have frequently noted, there is no clear requirement on companies to assess in the round how effective their implementation of these new duties is or to keep track of their developments. The Government have changed this Bill’s system for protecting adults online late in the day, but the need for risk assessments, in whatever system the Bill is designed around, has been repeated again and again across Committee days. Even at the close of day eight on Tuesday, the noble Lords, Lord Allan of Hallam and Lord Clement-Jones, referred explicitly to the role of risk assessment in validating the Bill’s systems of press reforms. Surely this persistence across days and groups of debate reflects the systemically pivotal role of risk assessments in what is, after all, meant to be a systems and processes rather than a content-orientated Bill.

But it seems that many people on many sides of this Committee believe that an important gap in risk assessment for harms to adults has been introduced by these late changes to the Bill. My colleague the right reverend Prelate is keen that I thank Carnegie UK for its work across the Bill, including these amendments. It notes:

“Harms to adults which might trickle down to become harms to children are not assessed in the current Bill”.


The forward-looking parts of its regime need to be strengthened to ensure that Parliament and the Secretary of State review new ways in which harms manifesting as technology race along, and to ensure that they then have the right advice for deciding what to do about them. To improve that advice, Ofcom needs to risk assess the future and then to report its findings.

Online Safety Bill

Viscount Colville of Culross Excerpts

Committee stage
Tuesday 23rd May 2023 Lords Chamber

I also hope that the Government support Parliament in enhancing its oversight of the regulators in which so much power is being vested. However expert, independent and professional they may be—I note that my noble friend Lord Grade is not in the Chamber today, as I believe he is overseas this week, but no one respects and admires my noble friend more than I do, and I am not concerned in any way about the expertise and professionalism of Ofcom—none the less we are in a situation where they are being vested with a huge amount of power and we need to make sure that the oversight of them is right. Even if I do not support that which is specifically put forward by the noble Lord, Lord Stevenson, this is an area where we need to move forward but we need the Government to support us in doing so if we are going to make it happen. I look forward to what my noble friend has to say in response to this group.

[Viscount Colville of Culross (CB)]

My Lords, I have put my name to Amendments 113, 114, 117, 118, 120 and 257. As the noble Baroness, Lady Stowell, has said, it is crucial that Ofcom both has and is seen to have complete independence from political interference when exercising its duty as a regulator.

On Ofcom’s website there is an article titled “Why Independence Matters in Regulating TV and Radio”—for the purposes of the Bill, I suggest that we add “Online”. It states:

“We investigate following our published procedures which contain clear, transparent and fair processes. It’s vital that our decisions are always reached independently and impartially”.


I am sure there are few Members of the Committee who would disagree with that statement. That sentiment is supported by a recent UNESCO conference to create global guidance for online safety regulation, whose concluding statement said that

“an independent authority is better placed to act impartially in the public interest and to avoid undue influence from political or industry interests”.

As the noble Baroness, Lady Stowell, has said, that is what successive Governments have striven to do with Ofcom’s regulation of broadcast and radio. Now the Government and Parliament must succeed in doing the same by setting up this Bill to ensure absolute independence for Ofcom in regulating the digital space.

The codes of practice drawn up by Ofcom will be central to the guidance for the parameters set out by the media regulator for the tech companies, so it is essential that the regulator, when setting them up, can act independently from political interference. In my view and that of many local Lords, Clause 39 does not provide that level of independence from political interference. No impartial observer can think that the clause as drafted allows Ofcom the independence that it needs to shape the limits of the tech platforms’ content. In my view, this is a danger to freedom of expression in our country by giving permission for the Secretary of State to interfere continually and persistently in Ofcom’s work.

Amendments 114 and 115 would ensure a badly needed reinforcement of the regulator’s independence. I see why the Minister would want a Secretary of State to have the right to direct the regulator, but I ask him to bear in mind that it will not always be a Minister he supports who is doing the directing. In those circumstances, surely he would prefer a Secretary of State to observe or have regard to the views on the draft codes of practice. Likewise, the endless ping-pong envisaged by Clause 39(7) and (9) allows huge political pressure and interference to be placed on the regulator. This would not be allowed in broadcast regulation, so why is it allowed for online regulation, which is already the dominant medium and can get only more dominant and more important?

Amendment 114 is crucial. Clause 39(1)(a), allowing the Minister’s direction to cover public policy, covers almost everything and is impossibly broad and vague. If the Government want an independent regulator, can the Minister explain how this power would facilitate that goal? I am unsure of how the Government will approach this issue, but I am told that they want to recognise the concerns about an overmighty Secretary of State by bringing forward their own amendment, limiting the powers of direction to specific policy areas. Can the Minister confirm that he is looking at using the same areas as in the Communications Act 2003, which are

“national security … relations with the government of a country … compliance with international obligations of the United Kingdom … the safety of the public or of public health”?

I worry about any government amendment which might go further and cover economic policy and burden to business. I understand that the Government would want to respond to the concerns that this Bill might create a burden on business and therefore could direct Ofcom to ease regulations in these areas. However, if this area is to be included, surely it will create a lobbyists’ charter. We all know how effective the big tech companies have been at lobbying the Government and slowing down the process of shaping this Bill. The Minister has only to talk to some of the Members who have helped to shape the Bill to know the determination and influence of those lobbying companies.

To allow the DCMS Secretary of State to direct Ofcom continuously to modify the codes of practice until they are no longer a burden to business would dramatically dilute the power and independence of the UK’s world-respected media regulator. Surely this is not what the people of Britain would want; the Minister should not want it either. The words “vague” and “broad” are used repeatedly by freedom of speech campaigners when looking at the powers of political interference in the Bill.

When the draft Bill came out, I was appalled by the extraordinary powers that it gave the Secretary of State to modify the content covered by “legal but harmful”, and I am grateful to the Government for responding to the Joint Committee and many other people’s concerns about this potentially authoritarian power. Clause 39 is not in the same league, but for all of us who want to ensure that Ministers do not have the power to interfere in the independence of Ofcom, I ask the Minister to accept the well-thought-through solutions represented by these amendments and supported by all Benches. I also support the request made by the noble Baroness, Lady Stowell, that Parliament should be involved in the oversight of Ofcom. I ask the Minister to respond to these widely supported amendments, either by accepting them or by tabling amendments of his own which guarantee the independence of the regulator.

Online Safety Bill

Viscount Colville of Culross Excerpts

Committee stage
Thursday 11th May 2023 Lords Chamber

[Lord Lucas (Con)]

My Lords, I also have a pair of amendments in this group. I am patron of a charity called JobsAware, which specialises in dealing with fraudulent job advertisements. It is an excellent example of collaboration between government and industry in dealing with a problem such as this. Going forward, though, they will be much more effective if there is a decent flow of information and if this Bill provides the mechanism for that. I would be very grateful if my noble friend would agree to a meeting, between Committee and Report, to discuss how that might best be achieved within the construct of this Bill.

It is not just the authorities who are able to deter these sort of things from happening. If there is knowledge spread through reputable networks about who is doing these things, it becomes much easier for other people to stop them happening. At the moment, the experience in using the internet must bear some similarity to walking down a Victorian street in London with your purse open. It really is all our responsibility to try to do something about this, since we now live so much of our life online. I very much look forward to my noble friend’s response.

[Viscount Colville of Culross (CB)]

My Lords, I had the great privilege of serving as a member of this House’s Fraud Act 2006 and Digital Fraud Committee under the excellent chairing of the noble Baroness, Lady Morgan. She has already told us of the ghastly effects that fraud has on individuals and indeed its adverse effects on businesses. We heard really dramatic statistics, such as when Action Fraud told us that 80% of fraud is cyber enabled.

Many of us here will have been victims of fraud—I have been a victim—or know people who have been victims of fraud. I was therefore very pleased when the Government introduced the fraudulent advertising provisions into the Bill, which will go some way to reducing the prevalence of online fraud. It seems to me that it requires special attention, which is what these amendments should do.

We heard in our inquiry about the problems that category 1 companies had in taking down fraudulent advertisements quickly. Philip Milton, the public policy manager at Meta, told us that it takes between 24 and 48 hours to review possibly harmful content after it has been flagged to the company. He recognised that, due to the deceptive nature of fraudulent advertising, Meta’s systems do not always recognise that advertising is fraudulent and, therefore, take-down rates would be variable. That is one of the most sophisticated tech platforms—if it has difficulties, just imagine the difficulty that other companies have in both recognising and taking down fraudulent advertising.

Again and again, the Bill recognises the difficulties that platforms have in systematising the protections provided in the Bill. Fraud has an ever-changing nature and is massively increasing—particularly so for fraudulent advertising. It is absolutely essential that the highest possible levels of transparency are placed upon the tech companies to report their response to fraudulent advertising. Both Ofcom and users need to be assured that not only do the companies have the most effective reporting systems but, just as importantly, they have the most effective transparency to check how well they are performing.

To do this, the obligations on platforms must go beyond the transparency reporting requirements in the Bill. These amendments would ensure that they include obligations to provide information on incidence of fraud advertising, in line with other types of priority illegal content. These increased obligations are part of checking the effectiveness of the Bill when it comes to being implemented.

The noble Baroness, Lady Stowell, told us on the fifth day of Committee, when taking about the risk-assessment amendments she had tabled:

“They are about ensuring transparency to give all users confidence”.—[Official Report, 9/5/23; col. 1755.]


Across the Bill, noble Lords have repeatedly stated that there needs to be a range of ways to judge how effectively the protections provided are working. I suggest to noble Lords that these amendments are important attempts to help make the Bill more accountable and provide the data to future-proof the harms it is trying to deal with. As we said in the committee report:

“Without sufficient futureproofing, technology will most likely continue to create new opportunities for fraudsters to target victims”.


I ask the Minister to at least look at some of these amendments favourably.

[Baroness Kidron (CB)]

My Lords, I shall say very briefly in support of these amendments that in 2017, the 5Rights Foundation, of which I am the chair, published the Digital Childhood report, which in a way was the thing that put the organisation on the map. The report looked at the evolving capacity of children through childhood, what technology they were using, what happened to them and what the impact was. We are about to release the report again, in an updated version, and one of the things that is most striking is the introduction of fraud into children’s lives. At the point at which they are evolving into autonomous people, when they want to buy presents for their friends and parents on their own, they are experiencing what the noble Baroness, Lady Morgan, expressed as embarrassment, loss of trust and a sense of deserting confidence—I think that is probably the phrase. So I just want to put on the record that this is a problem for children also.