Online Safety Bill (Fourteenth sitting)

Baroness Keeley Excerpts

Committee stage
Tuesday 21st June 2022 Public Bill Committees

[The Chair]

With this it will be convenient to discuss the following:

Amendment 153, in clause 141, page 121, line 32, after “140” insert

“, which must include the requirement that OFCOM must respond to such complaints within 90 days”

Clauses 141 and 142 stand part.

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

Good afternoon, Ms Rees. The importance of an effective complaints procedure has been argued strongly by many people who have given oral and written evidence to this Committee and indeed by Committee members. It is welcome that clause 140 introduces a super-complaints mechanism to report multiple, widespread concerns about the harm caused by services, but the lack of redress for individuals has been raised repeatedly.

This is a David and Goliath situation, with platforms holding all the power, while individuals are left to navigate the often complex and underfunded internal complaints systems provided by the platforms. This is what the London School of Economics and Political Science has called the

“current imbalance between democratic, ‘people’ power and the power of platforms.”

As we argued on new clause 1, there is a clear need to consider a route for redress at an individual level. The current situation is unsatisfactory for people who feel they have been failed by a service’s complaints system and who find themselves with no source of redress.

The current situation is also unsatisfactory for the regulator. Kevin Bakhurst from Ofcom told the right hon. Member for Basingstoke during our evidence sessions:

“Those individual complaints, although we are not going to be very specific in looking at individual pieces of material per se, are very useful to alert us where there are issues around particular types of offence or harm that the platforms are not seen to be dealing with properly.”––[Official Report, Online Safety Public Bill Committee, 24 May; c.9-10, Q9.]

An external redress process was recommended by the Joint Committee on the draft Bill and has been suggested by multiple stakeholders. Our new clause would make sure that we find the best possible solution to the problem. I hope the Minister reconsiders these points and supports new clause 1 when the time comes to vote on it.

As I have argued previously, organisations will not be able to make full and effective use of the super-complaints system unless the platforms risk assessments are published in full. The Opposition’s amendments 11 and 13 sought to address that issue, and I am disappointed that the Government failed to grasp their importance. There is now a real risk that civil society and other groups will not be able to assess and identify the areas where a company may not be meeting its safety duties. How does the Minister expect organisations making super-complaints to identify and argue that a service is causing harm to its users if they have no access to the company’s own analysis and mitigation strategy? Not including a duty to publish risk assessments leaves a gaping hole in the Bill and risks undermining the super-complaints mechanism. I hope that the Minister will reconsider his opposition to this important transparency mechanism in future stages of the Bill.

For powers about super-complaints to be meaningful, there must be a strict deadline for Ofcom to respond to them, and we will support the SNP amendment if it is pushed to a vote. The Enterprise Act 2002 gives a 90-day deadline for the Competition and Markets Authority to respond. Stakeholders have suggested a similar deadline to respond for super-complaints as an effective mechanism to ensure action from the regulator. I urge the Minister to consider this addition, either in the Bill with this amendment, or in the secondary legislation that the clause requires.

Clauses 141 and 142 relate to the structures around super-complaints. Clause 141 appears to be more about handing over powers to the Secretary of State than insuring a fair system of redress. The Opposition have said repeatedly how we feel about the powers being handed over to the Secretary of State. Clause 142 includes necessary provisions on the creation and publication of guidance by Ofcom, which we do not oppose. Under clause 141, Ofcom will have to provide evidence of the validity of the super-complaint and the super-complainant within a stipulated timeframe. However, there is little in the Bill about what will happen when a super-complaint is made, and much of the detail on how that process will work has been left to secondary legislation.

Does the Minister not think that it is strange to leave it up to the Secretary of State to determine how Ofcom is to deal with super-complaints? How does he envisage the system working, and what powers does he think Ofcom will need to be able to assert itself in relation to super-complaints? It seems odd to leave the answers to those important questions out of the Bill.

[Kirsty Blackman (Aberdeen North) (SNP)]

I appreciate the support from the Opposition in relation to amendment 153. I want to talk about amendment 153, but also about some of the issues there are with clauses 140 and 141—not so much 142. Clause 140(3) allows the Secretary of State to make regulations in relation to working out who an eligible entity is for making super-complaints. The Minister has helpfully been very clear that the definition is likely to be pretty wide—the definition of groups that are working on behalf of consumers is likely to be wide. The regulations that are made in this section are going to be made under the draft affirmative procedure. Although secondary legislation is not brilliant, the affirmative procedure will allow more scrutiny than negative procedure. I appreciate that the Minister has chosen—or the people drafting the Bill have chosen—that way forward for deciding on the eligible entity.

I am concerned that when it comes to clause 141(1), the regulations setting out how the complaints process will be made, and the regulation level, will be done under the negative procedure rather than under the draft affirmative procedure. I have got the Delegated Powers and Regulatory Reform Committee memorandum, which tells us about each of the delegated powers of the Bill, and the justification for them. I understand that the Department is referring to the Police Super-complaints (Designation and Procedure) Regulations 2018, which were made under the negative procedure. However, I am not convinced that in the Policing and Crime Act 2017 we were left with quite so little information about what would be included in those complaints. I think the justification for the negative procedure is not great, especially given the concerns raised about the over-reach of the Secretary of State’s power and the amount of influence they have on Ofcom.

I think clause 142 is fine; it makes sense that Ofcom is able to make guidance. I would have liked to see the regulation part involve more input from parliamentarians. If there is not going to be more input from parliamentarians, there should at least be more in the Bill about how the complaints procedure would work. The reason we have tabled amendment 153 is to ensure that Ofcom provides a response. That response does not have to be a final response saying, “We have investigated everything and these are the findings.” I understand that that may take some time. However, Ofcom must provide a response to super-complainants in 90 days. Even if it were to provide that information in the terms laid out in clause 141(2)(d)—whether a complaint is within clause 140, or is admissible under clause 140 or whether an entity is an eligible entity—and we were to commit Ofcom to provide that information within 90 days, that would be better than the current drafting, which is no time limits at all. It is not specified. It does not say that Ofcom has to deal with the complaint within a certain length of time.

A quick response from Ofcom is important for a number of reasons. I expect that those people who are bringing super-complaints are likely to be third sector organisations. Such organisations do not have significant or excessive budgets. They will be making difficult choices about where to spend their money. If they are bringing forward a super-complaint, they will be doing it on the basis that they think it is incredibly important and it is worth spending their finite funding on legal advice in order to bring forward that super-complaint. If there is an unnecessary delay before Ofcom even recognises whether the complaint is eligible, charities may spend money unnecessarily on building up a further case for the next stages of the super-complaint. They should be told very quickly, “No, we are not accepting this” or “Yes, we are accepting this”.

Ofcom has the ability to levy fees so that it can provide the service that we expect it to provide as a result of the Bill. It will have a huge amount of extra work compared with its current work. It needs to be able to levy fees in order to fulfil its functions. If there is no timeline and it says, “We want to levy fees because we want to be able to respond on a 90-day basis”, it would not be beyond companies to come back and say, “That is unrealistic—you should not be charging us extra fees in order for you to have enough people to respond within a 90-day period to super-complaints.”

If Ofcom is to be able to levy fees effectively to provide the level of service that we would all—including, I am sure, the Minister—like to see to super-complainants who are making very important cases on behalf of members of the public and people who are being harmed by content online, and to give Ofcom that backing when it is setting the structures and levying the fees, it would be sensible for the Minister to make some commitments about the timelines for super-complaints.

In earlier clauses of the Bill, primacy is given to complaints to social media platforms, for example—to regulated providers—about freedom of speech. The Bill says that they are to give such complaints precedence. They are to deal with them as important and, where some content has been taken down, quickly. That precedence is written into the Bill. Such urgency is not included in these three clauses on super-complaints in the way I would like to see. The Bill should say that Ofcom has to deal with super-complaints quickly. I do not mean it should do that by doing a bad job. I mean that it should begin to investigate quickly, work out whether it is appropriate to investigate it under the super-complaints procedure, and then begin the investigation.

In some cases, stuff will be really urgent and will need to be dealt with very quickly, especially if, for example, it includes child sexual abuse images. That would need to be dealt with in a matter of hours or days, rather than any longer period.

I would like to see some sort of indication given to Ofcom about the timelines that we are expecting it to work to. Given the amount of work that third sector organisations have put in to support this Bill and try to make it better, this is a fairly easy amendment for the Minister to accede to—an initial response by Ofcom within a 90-day period; we are not saying overnight—so that everyone can be assured that the internet is, as the Minister wishes, a much safer place.

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[The Chair]

With this it will be convenient to discuss the following:

Clauses 151 to 155 stand part.

Clause 157 stand part.

[Barbara Keeley]

Part 10 of the Bill sets out three new offences involving harmful, false or threatening communications. Clause 156 includes a new offence on cyber-flashing, to which my hon. Friend the Member for Pontypridd will speak shortly.

For many years, charities have been calling for an update to the offences included in the Malicious Communications Act 1998 and the Communications Act 2003. Back in 2018, the Law Commission pointed out that using the criminal law to deal with harmful online conduct was hindered by several factors, including limited law enforcement capacity to pursue the scale of abusive communications, what the commission called a “persistent cultural tolerance” of online abuse, and difficulties in striking a balance between protecting people from harm and maintaining rights of freedom of expression—a debate that we keep coming to in Committee and one that is still raging today. Reform of the legislation governing harmful online communications is welcome—that is the first thing to say—but the points laid out by the Law Commission in 2018 still require attention if the new offences are to result in the reduction of harm.

My hon. Friend the Member for Batley and Spen spoke about the limited definition of harm, which relates to psychological harm but does not protect against all harms resulting from messages received online, including those that are physical. We also heard from the hon. Member for Ochil and South Perthshire about the importance of including an offence of encouraging or assisting self-harm, which we debated last week with schedule 7. I hope that the Minister will continue to upgrade the merits of new clause 36 when the time comes to vote on it.

Those are important improvements about what should constitute an offence, but we share the concerns of the sector about the extent to which the new offences will result in prosecution. The threshold for committing one of the offences in clause 150 is high. When someone sends the message, there must be

“a real and substantial risk that it would cause harm to a likely audience”,

and they must have

“no reasonable excuse for sending the message.”

The first problem is that the threshold of having to prove the intention to cause distress is an evidential threshold. Finding evidence to prove intent is notoriously difficult. Professor Clare McGlynn’s oral evidence to the Committee was clear:

“We know from the offence of non-consensual sending of sexual images that it is that threshold that limits prosecutions, but we are repeating that mistake here with this offence.”

Professor McGlynn highlighted the story of Gaia Pope. With your permission, Ms Rees, I will make brief reference to it, in citing the evidence given to the Committee. In the past few weeks, it has emerged that shortly before Gaia Pope went missing, she was sent indecent images through Facebook, which triggered post-traumatic stress disorder from a previous rape. Professor McGlynn said:

“We do not know why that man sent her those images, and I guess my question would be: does it actually matter why he sent them? Unfortunately, the Bill says that why he sent them does matter, despite the harm it caused, because it would only be a criminal offence if it could be proved that he sent them with the intention of causing distress or for sexual gratification and being reckless about causing distress.”––[Official Report, Online Safety Public Bill Committee, 24 May 2022; c. 58, Q105.]

The communications offences should be grounded upon consent rather than the motivation of the perpetrator. That is a clear omission in the Bill, which my hon. Friend the Member for Pontypridd will speak more about in relation to our amendments 41 and 42 to clause 156. The Government must act or risk missing a critical opportunity to tackle the harms resulting from communications offences.

We then come to the problem of the “reasonable excuse” defence and the “public interest” defence. Clause 150(5) sets out that the court must consider

“whether the message is, or is intended to be, a contribution to a matter of public interest”.

The wording in the clause states that this should not “determine the point”. If that is the case, why does the provision exist? Does the Minister recognise that there is a risk of the provision being abused? In a response to a question from the hon. Member for Aberdeen North, the Minister has previously said that:

“Clause 150…does not give a get-out-of-jail-free card”.––[Official Report, Online Safety Public Bill Committee, 7 June 2022; c. 275.]

Could he lay out what the purpose of this “matter of public interest” defence is? Combined with the reasonable excuse defence in subsection (1), the provisions risk sending the wrong message when it comes to balancing harms, particularly those experienced by women, of which we have already heard some awful examples.

There is a difference in the threshold of harm between clause 150, on harmful communications offences, and clause 151, on false communications offences. To constitute a false communications offence, the message sender must have

“intended the message, or the information in it, to cause non-trivial psychological or physical harm to a likely audience”.

To constitute a harmful communications offence, the message sender must have

“intended to cause harm to a likely audience”

and there must have been

“a real and substantial risk that it would cause harm to a likely audience”.

Will the Minister set out the Government’s reasoning for that distinction? We need to get these clauses right because people have been let down by inadequate legislation and enforcement on harmful online communications offences for far too long.

[Chris Philp]

Let me start by saying that many of these clauses have been developed in careful consultation with the Law Commission, which has taken a great deal of time to research and develop policy in this area. It is obviously quite a delicate area, and it is important to make sure that we get it right.

The Law Commission is the expert in this kind of thing, and it is right that the Government commissioned it, some years ago, to work on these provisions, and it is right that, by and large, we follow its expert advice in framing these offences, unless there is a very good reason not to. That is what we have done—we have followed the Law Commission’s advice, as we would be expected to do. The clauses replace previous offences—for example, those in the Malicious Communications Act 1998—and update and improve those provisions in the form we see them in the Bill.

The shadow Minister, the hon. Member for Worsley and Eccles South, asked a number of questions about the drafting of the clauses and the thresholds that have to be met for an offence to be committed. We are trying to strike a balance between criminalising communications that deserve to be criminalised and not criminalising communications that people would consider should fall below the criminal threshold. There is obviously a balance to strike in doing that. We do not want to infringe free speech by going too far and having legitimate criticism and debate being subject to criminal sanctions. There is a balance to strike here between, on the one hand, public protection and where the criminal law sits versus, on the other hand, free speech and people expressing themselves. That is why clause 150 is constructed as it is, on the advice of the Law Commission.

As the hon. Member set out, the offence is committed only where there is a “real and substantial risk” that the likely audience would suffer harm. Harm is defined as

“psychological harm amounting to at least serious distress.”

Serious distress is quite a high threshold—it is significant thing, not something trivial. It is important to make that clear.

The second limb is that there is an intention to cause harm. Intention can in some circumstances be difficult to prove, but there are also acts that are so obviously malicious that there can be no conceivable motivation or intention other than to cause harm, where the communication is so obviously malfeasant. In those cases, establishing intent is not too difficult.

In a number of specific areas, such as intimate image abuse, my right hon. Friend the Member for Basingstoke and others have powerfully suggested that establishing intent is an unreasonably high threshold, and that the bar should be set simply at consent. For the intimate image abuse offence, the bar is set at the consent level, not at intent. That is being worked through by the Law Commission and the Ministry of Justice, and I hope that it will be brought forward as soon as possible, in the same way as the epilepsy trolling offence that we discussed a short while ago. That work on intimate image abuse is under way, and consent, not intent, is the test.

For the generality of communications—the clause covers any communications; it is incredibly broad in scope—it is reasonable to have the intent test to avoid criminalising what people would consider to be an exercise of free speech. That is a balance that we have tried to strike. The intention behind the appalling communications that we have heard in evidence and elsewhere is clear: it is in inconceivable that there was any other motivation or intention than to cause harm.

There are some defences—well, not defences, but conditions to be met—in clause 150(1)(c). The person must have “no reasonable excuse”. Subsection (5) makes it clear that

“In deciding whether a person has a reasonable excuse…one of the factors that a court must consider (if it is relevant in a particular case) is whether the message is, or is intended to be, a contribution to a matter of public interest (but that does not determine the point)”

of whether there is a reasonable excuse—it simply has to be taken into account by the court and balanced against the other considerations. That qualification has been put in for reasons of free speech.

There is a delicate balance to strike between criminalising what should be criminal and, at the same time, allowing reasonable free speech. There is a line to draw, and that is not easy, but I hope that, through my comments and the drafting of the clause, the Committee will see that that line has been drawn and a balance struck in a carefully calibrated way. I acknowledge that the matter is not straightforward, but we have addressed it with advice from the Law Commission, which is expert in this area. I commend clause 150 to the Committee.

The other clauses in this group are a little less contentious. Clause 151 sets out a new false communication offence, and I think it is pretty self-explanatory as drafted. The threatening communications offence in clause 152 is also fairly self-explanatory—the terms are pretty clear. Clause 153 contains interpretative provisions. Clause 154 sets out the extra-territorial application, and Clause 155 sets out the liability of corporate officers. Clause 157 repeals some of the old offences that the new provisions replace.

Those clauses—apart from clause 150—are all relatively straightforward. I hope that, in following the Law Commission’s advice, we have struck a carefully calibrated balance in the right place.

[Barbara Keeley]

I would like to take the Minister back to the question I asked about the public interest defence. There is a great deal of concern that a lot of the overlaying elements create loopholes. He did not answer specifically the question of the public interest defence, which, combined with the reasonable excuse defence, sends the wrong message.

[Chris Philp]

The two work together. On the reasonable excuse condition, for the offence to have been committed, it has to be established that there was no reasonable excuse. The matter of public interest condition—I think the hon. Lady is referring to subsection (5)—simply illustrates one of the ways in which a reasonable excuse can be established, but, as I said in my remarks, it is not determinative. It does not mean that someone can say, “There is public interest in what I am saying,” and they automatically have a reasonable excuse—it does not work automatically like that. That is why in brackets at the end of subsection (5) it says

“but that does not determine the point”.

That means that if a public interest argument was mounted, a magistrate or a jury, in deciding whether the condition in subsection (1)(c)—the “no reasonable excuse” condition—had been met, would balance the public interest argument, but it would not be determinative. A balancing exercise would be performed. I hope that provides some clarity about the way that will operate in practice.

[Barbara Keeley]

That was about as clear as mud, actually, but let us leave it there.

Question put and agreed to.

Clause 150 accordingly ordered to stand part of the Bill.

Clauses 151 to 155 ordered to stand part of the Bill.

Clause 156

Sending etc photograph or film of genitals

[Alex Davies-Jones]

I beg to move amendment 41, in clause 156, page 131, line 15, at end insert—

“(za) B has not consented for A to share the photograph or film with B, or”.

This amendment makes it an offence to send an image of genitals to another person if the recipient has not given consent to receive the image.

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[The Chair]

With this it will be convenient to discuss schedule 13.

[Barbara Keeley]

We have argued that changes to the legislation are long overdue to protect people from the harms caused by online communications offences. The clause and schedule 13 include necessary amendments to the legislation, so we do not oppose them standing part of the Bill.

[Chris Philp]

The clause cross-references schedule 13 and sets out amendments to existing legislation consequential on the communications offences in part 10. Schedule 13 has a number of consequential amendments, divided broadly into two parts. It makes various changes to the Sexual Offences Act 2003, amends the Regulatory Enforcement and Sanctions Act 2008 in relation to the Malicious Communications Act 1988, and makes various other changes, all of which are consequential on the clauses we have just debated. I therefore commend clause 158 and its associated schedule 13 to the Committee.

Question put and agreed to.

Clause 158 accordingly ordered to stand part of the Bill.

Schedule 13 agreed to.

Clause 159

Providers that are not legal persons

Question proposed, That the clause stand part of the Bill.