Online Safety Bill

Baroness Harding of Winscombe Excerpts

Report stage
Monday 10th July 2023 Lords Chamber

[Baroness Kidron (CB)]

My Lords, I rise to speak to all the amendments in this group. It is a cause of great regret that, despite many private meetings with officials, government lawyers and Ministers, we have not yet come to an agreement that would explicitly include in the Bill harm that does not derive from content. I will be listening very carefully to the Minister, if he should change his mind during the debate.

The amendments in this group fall into three categories. First, there is a series of amendments in my name and those of the noble Lord, Lord Stevenson, the noble Baroness, Lady Harding, and the right reverend Prelate the Bishop of Oxford: Amendments 35, 36, 37A and 85. I hope the Government will accept them as consequential because, in meetings last week, they would not accept that harm to children can arise from the functionality and design of services and not just from the content. Each of these amendments simply makes it clear that harm can arise absent from content: nothing more, nothing less. If the Minister agrees that harm may derive from the design of products and services, can he please explain, when he responds, why these amendments are not acceptable? Simply put, it is imperative that the features, functionalities or behaviours that are harmful to children, including those enabled or created by the design or operation of the service, are in scope of the Bill. This would make it utterly clear that a regulated company has a duty to design its service in a manner that does not harm children.

The Government have primary priority harmful content, priority content or non-designated harmful content, the latter being a category that is yet to be defined, but not the harm that emerges from how the regulated company designs its service. For example, there are the many hundreds of small reward loops that make up a doomscroll or make a game addictive; commercial decisions such as Pokémon famously did for a time, which was to end every game in a McDonald’s car park; or, more sinister still, the content-neutral friend recommendations that introduce a child to other children like them, while pushing children into siloed groups. For example, they deliberately push 13 year-old boys towards Andrew Tate—not for any content reason, but simply on the basis that 13 year-old boys are like each other and one of them has already been on that site.

The impact of a content-neutral friend recommendation has rocked our schools as female teachers and girls struggle with the attitudes and actions of young boys, and has torn through families, who no longer recognise their sons and brothers. To push hundreds of thousands of children towards Andrew Tate for no reason other than to benefit commercially from the network effect is a travesty for children and it undermines parents.

The focus on content is old-fashioned and looks backwards. The Bill is drafted as if it has particular situations and companies in mind but does not think about how fast the business moves. When we started the Bill, none of us thought about the impact of TikTok; last week, we saw a new service, Threads, go from zero to 70 million users in a single day. It is an act of stunning hubris to be so certain of the form of harm. To be unprepared to admit that some harm is simply design means that, despite repeated denials, this is just a content Bill. The promise of systems and processes being at the heart of the Bill has been broken.

The second set of amendments in this group are in the name of my noble friend Lord Russell. Amendments 46 and 90 further reveal the attitude of the Government, in that they are protecting the companies rather than putting them four-square in the middle of their regime. The Government specifically exempt the manner of dissemination from the safety duties. My noble friend Lord Russell’s amendment would leave that out and ensure that the manner of dissemination, which is fundamental to the harm that children experience, is included. Similarly, Amendment 240 would take out “presented by content” so that harm that is the result of the design decisions is included in the Bill.

The third set are government Amendments 281C and 281D, and Amendment 281F, in my name. For absence of doubt, I am totally supportive of government Amendments 281C to 281E, which acknowledge the cumulative harms; for example, those that Molly Russell experienced as she was sent more and more undermining and harmful content. In as far as they are a response to my entreaties, and those of other noble Lords, that we ensure that cumulative harmful content is the focus of our concerns, I am grateful to the Government for tabling them. However, I note that the Government have conceded only the role of cumulative harm for content. Amendments 281D and 281E once again talk about content as the only harm to children.

The noble Lord, Lord Stevenson, the noble Baroness, Lady Harding, and the right reverend Prelate the Bishop of Oxford have added their names to Amendment 281F, and I believe I am right in saying that if there were not a limit to four names, there were a great many Peers who would have added their names also. For the benefit of the House, I will quote directly from the amendment:

“When in relation to children, references to harm include the potential impact of the design and operation of a regulated service separately and additionally from harms arising from content, including the following considerations … the potential cumulative impact of exposure to harm or a combination of harms … the potential for harm to result from features, functionalities or behaviours enabled or created by the design and operation of services … the potential for some features and functionalities within a service to be higher risk than other aspects of the service … that a service may, when used in conjunction with other services, facilitate harm to a child on a different service … the potential for design strategies that exploit a child’s developmental vulnerabilities to create harm, including validation metrics and compulsive reward loops … the potential for real time services, features and functionalities such as geolocation, livestream broadcasts or events, augmented and virtual environments to put children at immediate risk … the potential for content neutral systems that curate or generate environments, content feeds or contacts to create harm to children … that new and emerging harms may arise from artificial intelligence, machine generated and immersive environments”.


Before I continue, I ask noble Lords to consider which of those things they would not like for their children, grandchildren or, indeed, other people’s children. I have accepted that the Government will not add the schedule of harms as I first laid it: the four Cs of content, conduct, contact and commercial harms. I have also accepted that the same schedule, written in the less comfortable language of primary priority, priority and non-designated harms, has also been rejected. However, the list that I just set out, and the amendment to the duties that reflect those risks, would finally put the design of the system at the heart of the Bill. I am afraid that, in spite of all our conversations, I cannot accept the Government’s argument that all harm comes from content.

Even if we are wrong today—which we are most definitely not—in a world of AI, immersive tech and augmented reality, is it not dangerous and, indeed, foolish, to exclude harm that might come from a source other than content? I imagine that the Minister will make the argument that the features are covered in the risk assessment duties and that, unlike content, features may be good or bad so they cannot be characterised as harmful. To that I say: if the risk assessment is the only process that matters, why do the Government feel it necessary to define the child safety duties and the interpretation of harm? The truth is, they have meaning. In setting out the duty of a company to a child, why would the Government not put the company’s design decisions right at the centre of that duty?

As for the second part of the argument, a geolocation feature may of course be great for a map service but less great if it shows the real-time location of a child to a predator, and livestreaming from a school concert is very different from livestreaming from your bedroom. Just as the noble Lord, Lord Allan, explained on the first day on Report, there are things that are red lines and things that are amber; in other words, they have to be age-appropriate. This amendment does not seek—nor would it mean—that individual features or functionalities would be prevented, banned or stopped. It would mean that a company had a duty to make sure that their features and functionalities were age-appropriate and did not harm children—full stop. There would be no reducing this to content.

Finally, I want to repeat what I have said before. Sitting in the court at Molly Russell’s inquest, I watched the Meta representative contest content that included blood cascading down the legs of a young woman, messages that said, “You are worthless”, and snippets of film of people jumping off buildings. She said that none of those things met the bar of harmful content according to Meta’s terms and conditions.

Like others, I believe that the Online Safety Bill could usher in a new duty of care towards children, but it is a category error not to see harm in the round. Views on content can always differ but the outcome on a child is definitive. It is harm, not harmful content, that the Bill should measure. If the Minister does not have the power to accede, I will, with great regret, be testing the opinion of the House. I beg to move.

[Baroness Harding of Winscombe (Con)]

My Lords, as so often in the course of the Bill, I associate myself wholeheartedly with the comments that the noble Baroness, Lady Kidron, just made. I, too, thank my noble friend the Minister and the Secretary of State for listening to our debates in Committee on the need to be explicit about the impact of cumulative harmful content. So I support Amendments 281C, 281D and 281E, and I thank them for tabling them.

--- Later in debate ---

[Baroness Harding of Winscombe (Con)]

My Lords, as somebody who is only five feet and two inches, I have felt that size does not matter for pretty much all my life and have long wanted to say that in a speech. This group of amendments is really about how size does not matter; risk does. I will briefly build on the speech just given by the noble Lord, Lord Allan, very eloquently as usual, to describe why risk matters more than size.

First, there are laws for which size does matter—small companies do not need to comply with certain systems and processes—but not those concerned with safety. I have in my mind’s eye the small village fête, where we expect a risk assessment if we are to let children ride on rides. That was not the case 100 years ago, but is today because we recognise those dangers. One of the reasons why we stumbled into thinking that size should matter in this Bill is that we are not being honest about the scale of the risk for our children. If the risk is large enough, we should not be worrying about size; we should be worrying about that risk. That is the first reason why we have to focus on risk and not size.

The second reason is subsequent to what I have just said—the principles of the physical world should apply to the online world. That is one of the core tenets of this Bill. That means that if you recognise the real and present risks of the digital world you have to say that it does not matter whether a small number of people are affected. If it is a small business, it still has an obligation not to put people in harm’s way.

Thirdly, small becomes big very quickly—unfortunately, that has not been true for me, but it is true in the digital world as Threads has just shown us. Fourthly, we also know that in the digital world re-engineering something once it has got very big is really difficult. There is also a practical reason why you want engineers to think about the risks before they launch services rather than after the event.

We keep being told, rightly, that this is a Bill about systems and processes. It is a Bill where we want not just the outcomes that the noble Lord, Lord Allan, has referred to in terms of services in the UK genuinely being safer; we are trying to effect a culture change. I would argue one of the most important culture changes is that any bright, young tech entrepreneur has to start by thinking about the risks and therefore the safety procedures they need to put in place as they build their tech business from the ground up and not once they have reached some artificial size threshold.

[Baroness Kidron (CB)]

My Lords, I have to admit that it was incompetence rather than lack of will that meant I did not add my name to Amendment 39 in the name of the noble Lord, Lord Bethell, and I would very much like the Government to accept his argument.

In the meantime, I wonder whether the Minister would be prepared to make it utterly clear that proportionality does not mean a little bit of porn to a large group of children or a lot of porn to a small group of children; rather, it means that high-risk situations require effective measures and low-risk situations should be proportionate to that. On that theme, I say to the noble Lord, Lord Allan, whose points I broadly agree with, that while we would all wish to see companies brought into the fold rather than being out of the fold, it rather depends on their risk.

This brings me neatly to Amendments 43 and 87 from the noble Lord, Lord Russell, to which I managed to add my name. They make a very similar point to Amendment 39 but across safety duties. Amendment 242 in my name, to which the noble Lord, Lord Stevenson, the noble Baroness, Lady Harding, and the right reverend Prelate the Bishop of Oxford have added their names, makes the same point—yet again—in relation to Ofcom’s powers.

All these things are pointing in the same direction as Amendment 245 in the name of the noble Baroness, Lady Morgan, which I keep on trumpeting from these Benches and which offers an elegant solution. I urge the Minister to consider Amendment 245 before day four of Report because if the Government were to accept it, it would focus company resources, focus Ofcom resources and, as we discussed on the first day of Report, permit companies which do not fit the risk profile of the regime and are unable to comply with something that does not fit their model yet leaves them vulnerable to enforcement also to be treated in an appropriate way.

Collectively, the ambition is to make sure that we are treating things in proportion to the risk and that proportionate does not start meaning something else.