Online Safety Bill

Baroness Fox of Buckley Excerpts

Report stage
Wednesday 12th July 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, a lot of positive and interesting things have been said that I am sympathetic to, but this group of amendments raises concerns about a democratic deficit: if too much of the Bill is either delegated to the Secretary of State or open to interference in relation to the Secretary of State and Ofcom, who decides what those priorities are? I will ask for a couple of points of clarification.

I am glad to see that the term “public policy” has been replaced, because what did that mean? Everything. But I am not convinced that saying that the Secretary of State can decide not just on national security but on public safety and public health is reassuring in the present circumstances. The noble Lord, Lord Allan, has just pointed out what it feels like to be leaned on. We had a very recent example internationally of Governments leaning on big tech companies in relation to Covid policies, lockdowns and so on, and removing material that was seen to contradict official public health advice—often public health advice that turned out not to be accurate at all. There should at least have been a lot more debate about what were political responses to a terrible virus. Noble Lords will know that censorship became a matter of course during that time, and Governments interfering in or leaning on big tech directly was problematic. I am not reassured that the Government hold to themselves the ability to lean on Ofcom around those issues.

It is also worth remembering that the Secretary of State already has a huge amount of power to designate, as we have discussed previously. They can designate what constitute priority illegal offences and priority content harmful to children, and that can all change beyond what we have discussed here. We have already seen that there is a constant expansion of what those harms can be, and having those decisions removed using only secondary legislation, unaccountable to Parliament or to public scrutiny, really worries me. It is likely to give a green light to every identity group and special interest NGO to demand that the list of priority harms and so on should be dealt with. That is likely to make the job of the Secretary of State to respond to “something must be done” moral panics all the more difficult. If that is going to happen, we should have parliamentary scrutiny of it; it cannot just be allowed to happen elsewhere.

It is ironic that the Secretary of State is more democratic, because they are elected, than an unelected regulator. I just feel that there is a danger in so much smoke and mirrors. When the Minister very kindly agreed to see the noble Lord, Lord Moylan, and me, I asked in a rather exasperated way why Ofcom could not make freedom of expression a priority, with codes of practice so that it would have to check on freedom of speech. The Minister said, “It’s not up to me to tell Ofcom what to do”, and I thought, “The whole Bill is telling Ofcom what to do”. That did not seem to make any sense.

I had another exchange with the present Secretary of State—again, noble Lords will not be surprised to hear that it was not a sophisticated intervention on my part—in which I said, “Why can’t the Government force the big tech companies to put freedom of expression in their terms and conditions or terms of service?” The Minister said, “They are private companies; we’re not interfering in what they do”. So you just end up thinking, “The whole Bill is telling companies that they’re going to be compelled to act in relation to harm and safety, but not on freedom of expression”. What that means is that you feel all the time as though the Government are saying that they are outsourcing this to third parties, which means that you cannot hold anyone to account.

Civil liberties campaigner Guy Herbert compared this to what is happening with the banks at the moment; they are being blamed by the Government and held to account for things such as politically exposed people and Ts and Cs that overconcentrate on values such as EDI and ESG that may be leading to citizens of this country having their bank accounts closed down. The Government say that they will tell the regulator that it has to act and say that the banks cannot behave in this way, but this all came from legislation—it is not as though the regulator was doing it off its own bat. Maybe it overinterpreted the legislation and the banks then overinterpreted it again and overremoved.

The obvious analogy for me is that there is a danger here that we will not be able to hold anyone to account for overremoval of legitimate democratic discussion from the online world, because everyone is pointing the finger at everyone else. At the very least, the amendments are trying to say that any changes beyond what we have discussed so far on this Bill must come before Parliament. That is very important for any kind of democratic credibility to be attached to this legislation.

[Baroness Kidron (CB)]

My Lords, I too express my admiration to the noble Baroness, Lady Stowell, for her work on this group with the Minister and support the amendments in her name. To pick up on what the noble Baroness, Lady Harding, said about infinite ping-pong, it can be used not only to avoid making a decision but as a form of power and of default decision-making—if you cannot get the information back, you are where you are. That is a particularly important point and I add my voice to those who have supported it.

I have a slight concern that I want to raise in public, so that I have said it once, and get some reassurance from the Minister. New subsection (B1)(d) in Amendment 134 concerns the Secretary of State directing Ofcom to change codes that may affect

“relations with the government of a country outside the United Kingdom”.

Many of the companies that will be regulated sit in America, which has been very forceful about protecting its sector. Without expanding on this too much, when it was suggested that senior managers would face some sort of liability in international fora, various parts of the American Government and state apparatus certainly made their feelings clearly known.

I am sure that the channels between our Government and the US are much more straightforward than any that I have witnessed, but it is absolutely definite that more than one Member of your Lordships’ House was approached about the senior management and said, “This is a worry to us”. I believe that where we have landed is very good, but I would like the Minister to say what the limits of that power are and acknowledge that it could get in a bit of a muddle with the economic outcomes that we were talking about, celebrating that they had been taken off the list, and government relations. That was the thing that slightly worried me in the government amendments, which, in all other ways, I welcome.

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[Baroness Morgan of Cotes (Con)]

My Lords, I will speak very briefly to this amendment; I know that the House is keen to get on to other business today. I very much welcome the amendment that the Government have tabled. My noble friend the Minister has always said that they want to keep women and girls safe online. As has been referred to elsewhere, the importance of making our digital streets safer cannot be overestimated.

As my noble friend said, women and girls experience a disproportionate level of abuse online. That is now recognised in this amendment, although this is only the start, not the end, of the matter. I thank my noble friend and the Secretary of State for their engagement on this issue. I thank the chief executive and the chair of Ofcom. I also thank the noble Baroness, Lady Kidron, the right reverend Prelate the Bishop of Gloucester, who I know cannot be here today, and the noble Lord, Lord Knight, who signed the original amendment that we discussed in Committee.

My noble friend has already talked about the campaigners outside the Chamber who wanted there to be specific mention of women and girls in the Bill. I thank Refuge, the 100,000 people who signed the End Violence Against Women coalition’s petition, BT, Glitch, Carnegie UK, Professor Lorna Woods, the NSPCC and many others who made the case for this amendment.

As my noble friend said, this is Ofcom guidance. It is not necessarily a code of practice, but it is still very welcome because it is broader than just the specific offences that the Government have legislated on, which I also welcome. As he said, this puts all the things that companies, platforms and search engines should be doing to protect women and girls online in one specific place. My noble friend mentioned holistic protection, which is very important.

There is no offline/online distinction these days. Women and girls should feel safe everywhere. I also want to say, because I know that my noble friend has had a letter, that this is not about saying that men and boys should not be safe online; it is about recognising the disproportionate levels of abuse that women and girls suffer.

I welcome the fact that, in producing this guidance, Ofcom will have to consult with the Domestic Abuse Commissioner and the Victims’ Commissioner and more widely. I look forward, as I am sure do all the organisations I just mentioned, to working with Ofcom on the first set of guidance that it will produce. It gives me great pleasure to have signed the amendment and to support its introduction.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I know that we do not have long and I do not want to be churlish. I am not that keen on this amendment, but I want to ask a question in relation to it.

I am concerned that there should be no conflation in the best practice guidance between the actual, practical problems of, for example, victims of domestic abuse being stalked online, which is a threat to their safety, or threatened with physical violence—I understand that—and abuse. Abuse is horrible to be on the receiving end of, but it is important for freedom of thought and freedom of speech that we do not make no distinction between words and action. It is important not to overreact or frighten young women by saying that being shouted at is the same as being physically abused.

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[Lord Parkinson of Whitley Bay (Con)]

I am very grateful to everyone for the support they have expressed for this amendment both in the debate now and by adding their names to it. As I said, I am particularly grateful to my noble friend Lady Morgan, with whom we have worked closely on it. I am also grateful for her recognition that men and boys also face harm online, as she rightly points out. As we discussed in Committee, this Bill seeks to address harms for all users but we recognise that women and girls disproportionately face harm online. As we have discussed with the noble Baroness, Lady Merron, women and girls with other characteristics such as women of colour, disabled women, Jewish women and many others face further disproportionate harm and abuse. I hope that Amendment 152 demonstrates our commitment to giving them the protection they need, making it easy and clear for platforms to implement protections for them across all the wide-ranging duties they have.

The noble Baroness, Lady Burt of Solihull, asked why it was guidance and not a code of practice. Ofcom’s codes of practice will set out how companies can comply with the duties and will cover how companies should tackle the systemic risks facing women and girls online. Stipulating that Ofcom must produce specific codes for multiple different issues could, as we discussed in Committee, create duplication between the codes, causing confusion for companies and for Ofcom.

As Ofcom said in its letter to your Lordships ahead of Report, it has already started the preparatory work on the draft illegal content and child sexual abuse and exploitation codes. If it were required to create a separate code relating to violence against women and girls, this preparatory work would need to be revised, so there would be the unintended—and, I think, across the House, undesired—consequence of slowing down the implementation of these vital protections. I am grateful for the recognition that we and Ofcom have had on that point.

Instead, government Amendment 152 will consolidate all the relevant measures across codes of practice, such as on illegal content, child safety and user empowerment, in one place, assisting platforms to reduce the risk of harm that women and girls disproportionately face.

On timing, at present Ofcom expects that this guidance will be published in phase 3 of the implementation of the Bill, which was set out in Ofcom’s implementation plan of 15 June. This is when the duties in Part 4 of the Bill, relating to terms of service and so on, will be implemented. The guidance covers the duties in Part 4, so for guidance to be comprehensive and have the most impact in protecting women and girls, it is appropriate for it to be published during phase 3 of the Bill’s implementation.

The noble Baroness, Lady Fox, mentioned the rights of trans people and the rights of people to express their views. As she knows, gender reassignment and religious or philosophical belief are both protected characteristics under the Equality Act 2010. Sometimes those are in tension, but they are both protected in the law.

With gratitude to all the noble Lords who have expressed their support for it, I commend the amendment to the House.

[Baroness Fox of Buckley (Non-Afl)]

The Minister did not quite grasp what I said but I will not keep the House. Would he be prepared to accept recommendations for a broader consultation—or who do I address them to? It is important that groups such as the Women’s Rights Network and others, which suffer abuse because they say “I know what a woman is”, are talked to in a discussion on women and abuse, because that would be appropriate.

[Lord Parkinson of Whitley Bay (Con)]

I am sorry—yes, the noble Baroness made a further point on consultation. I want to reassure her and other noble Lords that Ofcom has the discretion to consult whatever body it considers appropriate, alongside the Victims’ Commissioner, the Domestic Abuse Commissioner and others who I mentioned. Those consultees may not all agree. It is important that Ofcom takes a range of views but is able to consult whomever. As I mentioned previously, Ofcom and its officers can be scrutinised in Parliament through Select Committees and in other ways. The noble Baroness could take it up directly with them but could avail herself of those routes for parliamentary scrutiny if she felt that her pleas were falling on deaf ears.

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At some point, someone has to say, “You’ve got it right: you shouldn’t be able to classify that as a recognised news publisher”, or, “You’ve got it wrong: actually, the British Government, in all their glory, stand behind the fact that Infowars should be recognised and given these special privileges”. Those are really important questions we have to ask about how this clause will work in practice. Amendments 158 and 161, because they allow explicitly for short-form video made especially for social media, will come to be seen as quite instrumental and not at all minor.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I am completely opposed to Amendments 159 and 160, but the noble Lords, Lord Faulks and Lord Black, and the noble Viscount, Lord Colville, have explained the issues perfectly. I am fully in agreement with what they said. I spoke at length in Committee on that very topic. This is a debate we will undoubtedly come back to in the media Bill. I, for one, am extremely disappointed that the Labour Party has said that it will not repeal Section 40. I am sure that these issues will get an airing elsewhere. As this is a speech-limiting piece of legislation, as was admitted earlier this week, I do not want any more speech limiting. I certainly do not want it to be a media freedom-limiting piece of legislation on top of that.

I want to talk mainly about the other amendments, Amendments 158 and 161, but approach them from a completely different angle from the noble Lord, Lord Allan of Hallam. What is the thinking behind saying that the only people who can clip content from recognised news publishers are the news publishers? The Minister mentioned in passing that there might be a problem of editing them, but it has become common practice these days for members of the public to clip from recognised news publishers and make comments. Is that not going to be allowed? That was the bit that completely confused me. It is too prescriptive; I can see all sorts of people getting caught by that.

The point that the noble Lord, Lord Allan of Hallam, made about what constitutes a recognised news publisher is where the issue gets quite difficult. The point was made about the “wrong” organisations, but I want to know who decides what is right and wrong. We might all nod along when it comes to Infowars and RT, but there are lots of organisations that would potentially fail that test. My concern is that they would not be able to appeal when they are legitimate news organisations, even if not to everybody’s taste. Because I think that we already have too much speech limiting in the Bill, I do not want any more. This is important.

When it comes to talking about the “wrong” organisations, I noticed that the noble Lord, Lord McNally, referred to people who went to Rupert Murdoch’s parties. I declare my interests here: I have never been invited or been to a Rupert Murdoch party—although do feel free, I say, if he is watching—but I have read about them in newspapers. For some people in this Chamber, the “wrong” kind of news organisation is, for example, the Times or one with the wrong kind of owner. The idea that we will all agree or know which news publishers are the “wrong” kind is not clear, and I do not think that the test is going to sort it out.

Will the Minister explain what organisations can do if they fail the recognised news publisher test to appeal and say, “We are legitimate and should be allowed”? Why is there this idea that a member of the public cannot clip a recognised news publisher’s content without falling foul? Why would they not be given some exemption? I genuinely do not understand that.

[Baroness Stowell of Beeston (Con)]

My Lords, I shall speak very briefly. I feel a responsibility to speak, having spoken in Committee on a similar group of amendments when the noble Lords, Lord Lipsey and Lord McNally, were not available. I spoke against their amendments then and would do so again. I align myself with the comments of my noble friend Lord Black, the noble Lord, Lord Faulks, and the noble Viscount, Lord Colville. As the noble Baroness, Lady Fox, just said, they gave a comprehensive justification for that position. I have no intention of repeating it, or indeed repeating my arguments in Committee, but I think it is worth stating my position.