Online Safety Bill (Thirteenth sitting)

Barbara Keeley Excerpts

Committee stage & Committee Debate - 13th sitting
Tuesday 21st June 2022 Public Bill Committees

[Chris Philp]

In this clause we are specifically talking about access to information for researchers. Obviously, the transparency matters were covered in clauses 64 and 135. There is consensus across both parties that access to information for bona fide academic researchers is important. The clause lays out a path to take us in the direction of providing that access by requiring Ofcom to produce a report. We debated the matter earlier. The hon. Member for Worsley and Eccles South—I hope I got the pronunciation right this time—

[Barbara Keeley (Worsley and Eccles South) (Lab)]

You did.

[Chris Philp]

The hon. Lady made some points about the matter in an earlier sitting, as the shadow Minister just said. It is an area we are giving some careful thought to, because it is important that it is properly academically researched. Although Ofcom is being well resourced, as we have discussed, with lots of money and the ability to levy fees, we understand that it does not have a monopoly on wisdom—as good a regulator as it is. It may well be that a number of academics could add a great deal to the debate by looking at some of the material held inside social media firms. The Government recognise the importance of the matter, and some thought is being given to these questions, but at least we can agree that clause 136 as drafted sets out a path that leads us in this important direction.

Question put and agreed to.

Clause 136 accordingly ordered to stand part of the Bill.

Clause 137

OFCOM’s reports

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[The Chair]

With this, it will be convenient to consider clause 139 stand part.

[Barbara Keeley]

Good morning, Ms Rees. It is a pleasure to serve on the Committee with you in the Chair. Clause 138 allows companies to make appeals against Ofcom’s decisions regarding the categorisation of services within categories 1, 2A or 2B.

We have argued, many times, that we believe the Government’s size-based approach to categorisation is flawed. Our preference for an approach based on risk is backed up by the views of multiple stakeholders and the Joint Committee. It was encouraging to hear last week of the Minister’s intention to look again at the issues of categorisation, and I hope we will see movement on that on Report.

Clause 138 sets out that where a regulated provider has filed an appeal, they are exempt from carrying out the duties in the Bill that normally apply to services designated as category 1, 2A or 2B. That is concerning, given that there is no timeframe in which the appeals process must be concluded.

While the right to appeal is important, it is feasible that many platforms will raise appeals about their categorisation to delay the start of their duties under the Bill. I understand that the platforms will still have to comply with the duties that apply to all regulated services, but for a service that has been classified by Ofcom as high risk, it is potentially dangerous that none of the risk assessments on measures to assess harm will be completed while the appeal is taking place. Does the Minister agree that the appeals process must be concluded as quickly as possible to minimise the risk? Will he consider putting a timeframe on that?

Clause 139 allows for appeals against decisions by Ofcom to issue notices about dealing with terrorism and child sexual abuse material, as well as a confirmation decision or a penalty notice. As I have said, in general the right to appeal is important. However, would an appeals system work if, for example, a company were appealing to a notice under clause 103? In what circumstances does the Minister imagine that a platform would appeal a notice by Ofcom requiring the platform to use accredited technology to identify child sexual abuse content and swiftly take down that content? It is vital that appeals processes are concluded as rapidly as possible, so that we do not risk people being exposed to harmful or dangerous content.

[Chris Philp]

The shadow Minister has set out the purpose of the clauses, which provide for, in clause 138 appeal rights for decisions relating to registration under clause 81, and in clause 139 appeals against Ofcom notices.

I agree that it is important that judicial decisions in this area get made quickly. I note that the appeals are directly to the relevant upper tribunal, which is a higher tier of the tribunal system and tends to be a little less congested than the first-tier tribunal, which often gets used for some first-instance matters. I hope that appeals going to the upper tribunal, directly to that more senior level, provides some comfort.

On putting in a time limit, the general principle is that matters concerning listing are reserved to the judiciary. I recall from my time as a Minister in the Ministry of Justice, that the judiciary guards its independence fiercely. Whether it is the Senior President of Tribunals or the Lord Chief Justice, they consider listing matters to be the preserve of the judiciary, not the Executive or the legislature. Compelling the judiciary to hear a case in a certain time might well be considered to infringe on such principles.

We can agree, however—I hope the people making those listing decisions hear that we believe, that Parliament believes—that it is important to do this quickly, in particular where there is a risk of harm to individuals. Where there is risk to individuals, especially children, but more widely as well, those cases should be heard very expeditiously indeed.

The hon. Member for Worsley and Eccles South also asked about the basis on which appeals might be made and decided. I think that is made fairly clear. For example, clause 139(3) makes it clear that, in deciding an appeal, the upper tribunal will use the same principles as would be applied by the High Court to an application for judicial review—so, standard JR terms—which in the context of notices served or decisions made under clause 103 might include whether the power had been exercised in conformity with statute. If the power were exercised or purported to be exercised in a manner not authorised by statute, that would be one grounds for appeal, or if a decision were considered so grossly unreasonable that no reasonable decision maker could make it, that might be a grounds for appeal as well.

I caution the Committee, however: I am not a lawyer and my interpretation of judicial review principles should not be taken as definitive. Lawyers will advise their clients when they come to apply the clause in practice and they will not take my words in Committee as definitive when it comes to determining “standard judicial review principles”—those are well established in law, regardless of my words just now.

[Barbara Keeley]

There is a concern that platforms might raise appeals about their categorisation in order to delay the start of their duties under the Bill. How would the Minister act if that happened—if a large number of appeals were pending and the duties under the Bill therefore did not commence?

[Chris Philp]

Clearly, resourcing of the upper tribunal is a matter decided jointly by the Lord Chancellor and the Secretary of State for Justice, in consultation with the Lord Chief Justice, and, in this case, the Senior President of Tribunals. Parliament would expect the resourcing of that part of the upper tribunal to be such that cases could be heard in an expedited matter. Particularly where cases concern the safety of the public—and particularly of children—we expect that to be done as quickly as it can.

Question put and agreed to.

Clause 138 accordingly ordered to stand part of the Bill.

Clause 139 ordered to stand part of the Bill.

Clause 140

Power to make super-complaints

--- Later in debate ---

[Barbara Keeley]

The Bill currently specifies that super-complaints can be made back to Ofcom by bodies representing users or members of the public. The addition of consumer representatives through the amendments is important. Consumer representatives are a key source of information about harms to users of online services, which are widespread, and would be regulated by this legislation. We support the amendments, which would include consumers on the list as an entity that is eligible to make super-complaints.

[Chris Philp]

Clearly, we want the super-complaint function to be as effective as possible and for groups of relevant people, users or members of the public to be able to be represented by an eligible entity to raise super-complaints. I believe we are all on the same page in wanting to do that. If I am honest, I am a little confused as to what the addition of the term “consumers” will add. The term “users” is defined quite widely, via clause 140(6), which then refers to clause 181, where, as debated previously, a “user” is defined widely to include anyone using a service, whether registered or not. So if somebody stumbles across a website, they count as a user, but the definition being used in clause 140 about bringing super-complaints also includes “members of the public”—that is, regular citizens. Even if they are not a user of that particular service, they could still be represented in bringing a complaint.

Given that, by definition, “users” and “members of the public” already cover everybody in the United Kingdom, I am not quite sure what the addition of the term “consumers” adds. By definition, consumers are a subset of the group “users” or “members of the public”. It follows that in seeking to become an eligible entity, no eligible entity will purport to act for everybody in the United Kingdom; they will always be seeking to define some kind of subset of people. That might be children, people with a particular vulnerability or, indeed, consumers, who are one such subset of “members of the public” or “users”. I do not honestly understand what the addition of the word “consumers” adds here when everything is covered already.

--- Later in debate ---

[Kirsty Blackman]

I beg to move amendment 77, in clause 140, page 121, line 9, leave out subsection (2).

This amendment removes the tests that complaints have to be of particular importance in order to be admissible.

When I first read clause 140, subsection (2) raised a significant number of red flags for me. The subsection might be reasonable if we did not have giant companies—social media platforms particularly—that significant numbers of people across the UK use regularly. Facebook might be counted as a “single regulated service”, but 85% of UK residents—57.1 million people—had a Facebook account earlier this year. Twitter is used by 28% of people living in the UK, which is 19 million users. TikTok is at 19%, which is significantly less, but still a very high number of people—13 million users. I can understand the decision that a super-complaint picking on one certain company might be a bit extreme, but it does not make sense when we are considering the Facebooks of this world.

If someone is making a complaint about a single regulated service and that service is Facebook, Twitter, TikTok or another large platform—or a new, yet-to-be-created platform—that significant numbers of people use, there is no justification for treating that complaint differently just because it is against a single entity. When a complaint is made against Facebook—I am picking on Facebook because 85% of the UK public are members of it; it is an absolute behemoth—I would like there to be no delay in its being taken to Ofcom. I would like Ofcom not to have to check and justify that the complaint is “of particular importance”.

Subsection (2)(a) states that one of the tests of the complaint should be that it “is of particular importance” or, as subsection (2)(b) notes, that it

“relates to the impacts on a particularly large number of users of the service or members of the public.”

I do not understand what

“large number of users of the service”

would mean. Does a large number of the users of Facebook mean 50% of its users? Does it mean 10%? What is a large number? Is that in percentage terms, or is it something that is likely to impact 1 million people? Is that a large number? The second part—

“large number…of members of the public”—

is again difficult to define. I do not think there is justification for this additional hoop just because the complaint relates to a single regulated service.

Where a complaint relates to a very small platform that is not causing significant illegal harm, I understand that Ofcom may want to consider whether it will accept, investigate and give primacy and precedence to that. If the reality is that the effect is non-illegal, fairly minor and impacts a fairly small number of people, in the order of hundreds instead of millions, I can understand why Ofcom might not want to give that super-complaint status and might not want to carry out the level of investigation and response necessary for a super-complaint. But I do not see any circumstances in which Ofcom could justify rejecting a complaint against Facebook simply because it is a complaint against a single entity. The reality is that if something affects one person on Facebook, it will affect significantly more than one person on Facebook because of Facebook’s absolutely massive user base. Therefore this additional hoop is unrealistic.

Paragraph (a), about the complaint being “of particular importance”, is too woolly. Does it relate only to complaints about things that are illegal? Does it relate only to things that are particularly urgent—something that is happening now and that is having an impact today? Or is there some other criterion that we do not yet know about?

I would very much appreciate it if the Minister could give some consideration to amendment 77, which would simply remove subsection (2). If he is unwilling to remove that subsection, I wonder whether we could meet halfway and whether, let us say, category 1 providers could all be excluded from the “single provider” exemption, because they have already been assessed by Ofcom to have particular risks on their platforms. That group is wider than the three names that I have mentioned, and I think that that would be a reasonable and realistic decision for the Government—and direction for Ofcom—to take. It would be sensible.

If the Government believe that there is more information—more direction—that they could add to the clause, it would be great if the Minister could lay some of that out here and let us know how he intends subsection (2) to operate in practice and how he expects Ofcom to use it. I get that people might want it there as an additional layer of protection, but I genuinely do not imagine that it can be justified in the case of the particularly large providers, where there is significant risk of harm happening.

I will illustrate that with one last point. The Government specifically referred earlier to when Facebook—Meta—stopped proactively scanning for child sexual abuse images because of an issue in Europe. The Minister mentioned the significant amount of harm and the issues that were caused in a very small period. And that was one provider—the largest provider that people use and access. That massive amount of harm can be caused in a very small period. I do not support allowing Meta or any other significantly large platform to have a “get out of jail” card. I do not want them to be able to go to Ofcom and say, “Hey, Ofcom, we’re challenging you on the basis that we don’t think this complaint is of particular importance” or “We don’t think the complaint relates to the impacts on a particularly large number of users of the service or members of the public.” I do not want them to have that ability to wriggle out of things because this subsection is in the Bill, so any consideration that the Minister could give to improving clause 140 and subsection (2) would be very much appreciated.

[Barbara Keeley]

We support the SNP’s amendment 77, moved by the hon. Member for Aberdeen North. The super-complaints mechanism introduced by clause 140 is a useful device for reporting numerous, widespread concerns about the harm caused by multiple or single services or providers. Subsection (1) includes the conditions on the subjects of super-complaints, which can relate to one or more services. However, as the hon. Member has pointed out, that is caveated by subsection (2), under which a super-complaint that refers to a single service or provider must prove, as she has just outlined, that it is “of particular importance” or

“relates to the impacts on a particularly large number of users of the service or members of the public.”

Given the various hoops through which a super-complaint already has to jump, it is not clear why the additional conditions are needed. Subsection (2) significantly muddies the waters and complicates the provisions for super-complaints. For instance, how does the Minister expect Ofcom to decide whether the complaint is of particular importance? What criteria does he expect the regulator to use? Why include it as a metric in the first place when the super-complaint has already met the standards set out in subsection (1)?