Digital Economy Bill

Baroness Hollins Excerpts

2nd reading (Hansard): House of Lords
Tuesday 13th December 2016 Lords Chamber

[Baroness Hollins (CB)]

My Lords, there are three areas of particular interest for me in this very wide-ranging Bill. The first is the sharing of sensitive health information. I remind noble Lords of my membership of the medical profession and that I am a past president of the British Medical Association.

The BMA believes the Bill should be amended to ensure that identifiable healthcare information is excluded from the entire scope of the Bill’s information disclosure powers. This is imperative if patients are to have trust in the confidential nature of the health service and feel confident in sharing sensitive information with healthcare professionals. The BMA recognises, and is supportive of, the many benefits in using healthcare data appropriately, such as for medical research and health service planning purposes, but this must not be achieved at the cost of confidentiality and must be in line with patient expectations about how their confidential information is handled.

I am therefore seeking clarification on two issues. First, the Bill sets out the need to comply with the Data Protection Act 1998 but overrules the common-law duty of confidentiality. It states:

“A disclosure under section 30, 31 or 32 does not breach … any obligation of confidence owed by the person making the disclosure”.

Compliance with the DPA alone does not offer adequate protections for the confidential nature of healthcare information, and the Bill as drafted could seriously undermine medical confidentiality. Why does the Bill not maintain the existing common-law duty of medical confidentiality?

Secondly, the treatment of sensitive health data under Clause 30’s powers is inconsistent with the Government’s own amendment to Clause 57’s powers in the other place. That amendment will uphold the existing protection for sharing healthcare data for research purposes. The Government said that a similar amendment to Clause 30 is not possible, because health is a devolved issue, but no justification has been provided for why Clauses 30 and 57 are being treated differently in this regard. Why is medical confidentiality not protected consistently throughout the Bill? It will be important for the Bill to be amended or clarified to provide adequate guarantees that all current protections of confidentiality will be upheld.

My second area of interest in the Bill concerns measures to make the internet a safer place for children and vulnerable adults. A number of noble Lords have already spoken about this. The NSPCC has written a very powerful briefing, reminding us that the internet is the place where children go to have fun and to learn. It calls on us to recognise the richness of children’s lives and how they deploy, use and interact with technology as a means of learning, empowerment, self-expression and connecting with others. But there are also real benefits to children and young people with learning disabilities and autism in using the internet to support learning and social interaction. Increasingly, the internet caters for these young people through using accessible design and simplified language, as well as instantly available video clips. However, with access to technology comes the potential for cyberbullying, online grooming and risk of exposure to inappropriate content. Children and young people cite viewing violent and harmful content as their second most common concern in the online world. It is important to remember that pornographic sites are not the only challenge—there are also sites promoting violence, drug use, self-harm and gambling.

This is a risk for all children and young people using the internet but the risk can be more profound for young people with a learning disability as a result of their increased vulnerability, a common tendency towards obsessional or compulsive behaviour and their social naivety. The Anti-Bullying Alliance found that pupils with special educational needs were 12% more likely to have experienced cyberbullying than their peers. Mencap, Ambitious about Autism and Cerebra were sufficiently concerned last year to publish Learning Disabilities, Autism and Internet Safety: A Parent’s Guide, which contains tips for parents on how to support their children to use the internet safely.

Many of these concerns and aspirations also apply to vulnerable adults who are at risk from the same types of intrusive and harmful content. I refer not just to people with developmental learning disabilities but to those who are experiencing a mental health crisis and for whom such material can only add to their troubles. What plans do the Government have to ensure that such vulnerable adults are also protected through the measures in the Bill?

The continued provision of the default-on adult content filtering regime is very important, including in relation to public wi-fi. While filters are not completely watertight, they will help to make the internet safer for many children and, indeed, vulnerable adults. So a great deal hangs on the promised government adult content filtering amendment, which I look forward to seeing in Committee.

The NSPCC is also calling for a statutory code of practice, with a set of minimum standards to keep children safe online. These minimum standards would set out responsibilities for anyone developing or hosting online content or services to ensure that there is parity of protection for children between the offline and online worlds.

Finally, I will speak about the possibilities offered in the Bill to protect the public from some of the harm caused by a media which refuse to regulate themselves adequately, despite cross-parliamentary acceptance of the Leveson inquiry recommendations. This country has managed broadcast regulation rather well, and Ofcom has a good track record. We do not hear of the Government being bullied by broadcast licence holders, or holding secret meetings in London hotels with ITV’s owners, or of the BBC Director-General entering No. 10 Downing Street through the back door for a quiet chat with the Prime Minister. But the same cannot be said of press regulation. This House knows the history of decades of failed press regulation—Leveson described it as a “pattern of cosmetic reform”.

Since Leveson part 1 reported, there has been an unprecedented propaganda war by the large newspaper companies opposing its moderate recommendations. We have witnessed a disgraceful retreat by the Government, reneging on promise after promise made to victims, the public and Parliament, including a willingness to abandon the incentives for the royal charter scheme that were enacted by Parliament, and a desire to cancel part 2 of the inquiry into the newspapers’ corporate cover-up and possible police corruption.

Lord Justice Leveson was alive to that happening, and warned of it in his report. He said that previous press promises to reform,

“have often not been followed through with meaningful action”.

Crucially, he said that if the press reject this final opportunity for voluntary, independent self-regulation, Parliament must act to protect the public interest and legislate. He said,

“if some or all of the industry are not willing to participate in effective independent regulation, my own concluded view is to reject the notion that they should escape regulation altogether. I cannot, and will not, recommend another last chance saloon for the press”.

I hope that this House will take up the challenge in the Bill. As Lord Justice Leveson pointed out, the news media move their position only when faced with the prospect of legislation. As Leveson found in his inquiry:

“Ultimately, the one incentive that we have heard about that has been demonstrated to be effective is the realistic threat of press standards legislation if an adequate voluntary body with full coverage is not forthcoming”.

I am still exploring what amendments will be possible, but noble Lords will recall that I was encouraged by Ministers to amend this Bill, rather than the Investigatory Powers Bill, despite the huge support in this Chamber for a mechanism to implement outstanding Leveson recommendations. I have asked Hacked Off to assist me with briefings on this matter.

Digital Economy Bill

Baroness Hollins Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Wednesday 8th February 2017 Lords Chamber

Moved by

[Baroness Hollins]

233F: After Clause 87, insert the following new Clause—
“Awards of costs in respect of legal claims made in relation to digitally published news-related material
(1) This section applies where—(a) a relevant claim is made against a person (“the defendant”),(b) the defendant was a relevant publisher at the material time, and(c) the claim is related to the publication of news-related material which is published on a website.(2) If the defendant was a member of an approved regulator at the time when the claim was commenced (or was unable to be a member at that time for reasons beyond the defendant’s control or it would have been unreasonable in the circumstances for the defendant to have been a member at that time), the court must not award costs against the defendant unless satisfied that—(a) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator, or(b) it is just and equitable in all the circumstances of the case to award costs against the defendant.(3) If the defendant was not a member of an approved regulator at the time when the claim was commenced (but would have been able to be a member at that time and it would have been reasonable in the circumstances for the defendant to have been a member at that time), the court must award costs against the defendant unless satisfied that—(a) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator (had the defendant been a member), or(b) it is just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs.(4) This section is not to be read as limiting any power to make rules of court.(5) For the purposes of this section—“relevant publisher” has the same meaning as in section 41 of the Crime and Courts Act 2013;“relevant claim”, “news-related material”, “material time” and “approved regulator” have the same meanings as in section 42 of that Act;“publication” has the same meaning as in section 42(9)(a) of that Act.”

[Baroness Hollins (CB)]

My Lords, I declare an interest as I gave evidence to the Leveson inquiry and my family decided that I should give evidence on their behalf—believing undertakings by the former Prime Minister that Lord Justice Leveson’s recommendations would be implemented. One of those recommendations, as we were all aware, was Section 40 of the Crown and Courts Act 2013, which Parliament enacted with cross-party support, but which the Government have so far failed to commence. This leaves victims of press abuse without affordable access to justice and leaves the royal charter hamstrung with no incentives for its use.

In response to the Government’s failure to follow through on their undertakings, I tabled amendments to the then Investigatory Powers Bill to replace Section 40 of the Crown and Courts Act with a similar provision. Government Ministers and others, in resisting those amendments, suggested that the Digital Economy Bill would be a better vehicle to resolve the matter—particularly because of the urgent nature of the Investigatory Powers Bill. Although my amendments were in scope and the Bill had been amended with a large majority by your Lordships’ House, I agreed to withdraw them when they were returned by the other place.

I will very briefly explain the effect of the amendment I am proposing today. It would make a similar provision to that in Section 40 in the Crime and Courts Act 2013 in so far as is possible within the scope of this Bill. Lord Justice Leveson recommended that all newspapers should join an independently approved regulator that is independent and effective, and that such a regulator would offer guaranteed, low-cost arbitration as a cheap route to justice for the press and free for the public. If a newspaper refused to join a system that Lord Justice Leveson set out and to offer low-cost arbitration, the judge said that, in order to prevent the power and work of newspapers being used to bully and intrude on ordinary members of the public, the newspaper would have to shoulder the court costs of any claim brought successfully against it. To avoid having to meet the costs of claims brought against it, and indeed to benefit from costs protection if sued in court, a publisher need only join a recognised regulator and resolve any claim far more cheaply through that regulator’s arbitration system.

It is this provision that the former Secretary of State decided not to commence. The amendment I am moving today would bring a Section 40 lookalike into effect for online publications. That would include, of course, the major print publishers, which all have significant news websites. Given that it relates only to the online publication of libels or other illegal abuses as they relate to online publication, it is slightly narrower in effect than the provision agreed by Parliament in 2013. It is a weaker substitute for Section 40. But in the absence of any of the access to justice which Section 40 would provide for families and individuals attacked unfairly by the press, it is far better than nothing at all.

The Government may argue that a consultation on these matters is ongoing. Lord Justice Leveson consulted publicly throughout 2011 and 2012. Section 40 was one of his many recommendations. My family and I went through the traumatic process of giving evidence at Leveson because we expected that his recommendations would be taken seriously. The consultation now being considered in private, with a government Minister presiding over it, does not, to be honest, inspire the same confidence.

My second amendment, Amendment 234A, simply provides for immediate commencement for reasons that I do not need to explain. I hope that the Committee will support these probing amendments. I beg to move.

[Lord Low of Dalston (CB)]

My Lords, I support the amendments because they provide the Government with yet another opportunity to deliver on their commitments to the victims of press abuse and bring this critical access-to-justice measure into force.

Amendment 233F would not bring Section 40 of the Crime and Courts Act into force in full, as we have heard. That is regrettable but it is as much as can be done within the scope of the Bill. However, it will demonstrate to the Government that this matter is not going to go away, and that people like the noble Baroness, Lady Hollins, will keep bringing back amendments such as this and seeking to insert them into any Bill into which they can plausibly be inserted until the Government keep their promises to the victims of press abuse.

It is now almost four years since the cross-party agreement was reached and Section 40 was enacted by Parliament. This House, as the noble Baroness reminded us, voted for it again as an amendment to the Investigatory Powers Bill before Christmas. The press lobby believes that by intimidating the Government with the threat of negative headlines and causing maximum delay, it can prevent it coming into effect. I support the amendment because I do not believe that people such as Mr Murdoch are sovereign and because I do not believe that the Government should override the will of Parliament to placate the interests of newspaper owners.

The consultation that the Government have launched, which has recently ended, is offensive to the victims of press abuse, whose evidence was accepted by Lord Justice Leveson, and should be offensive to Parliament, which enacted this measure in 2013. The former Prime Minister David Cameron, as the noble Baroness, Lady Hollins, has again reminded us, undertook to implement Leveson’s recommendations unless they were “manifestly bonkers”. Retrospective consultations to undermine the recommendations of a public inquiry whose recommendations were not manifestly bonkers, as well as the will of Parliament, are an affront to any understanding of what is meant by “good governance”. It is no wonder that the consultation exercise is facing a legal challenge.

I hope that the Government will keep their promises and implement Section 40 without delay, and I hope that they are under no illusion about the strength of feeling on all sides of the House on this matter. There may not be too many people here at this hour to demonstrate that, but the Government should make no mistake: it is the case. I attended a meeting the other evening where constructive proposals were discussed that seemed to some of us to have the makings of a settlement between those pressing for the implementation of Section 40 and the newspaper editors. Surely the Government should be trying to broker such an agreement instead of just sitting on their hands. Until they do, as I say, amendments such as this will keep coming back.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am obliged to the noble Baroness, Lady Hollins. I will address Amendments 233F and 234A together. The amendments, of course, mirror Section 40 of the Crime and Courts Act 2013 but would apply to digitally published news-related material only, as we know. The House has debated the issue of Section 40 on various recent occasions, including during passage of the Investigatory Powers Act and the Policing and Crime Act. There was also a stand-alone debate just before the Christmas Recess.

There is obviously a great strength of feeling about this matter. I realise that some Members of this House are frustrated by what they see as a lack of progress by government on Section 40. However, the Committee should also recall the strength of feeling on the other side of the debate. Many noble Lords have argued passionately in this House against Section 40 and are concerned about its commencement and its impact upon freedom of the press. That is why the Government ran a consultation to consider the matter further.

The press self-regulatory landscape has changed significantly in the past four years since the Leveson inquiry reported. It is right that the Government take stock, look at the changes which have already taken place and seek the views of all interested parties on the most effective way to ensure that the inexcusable practices which led to the Leveson inquiry being established can never happen again.

A consultation was the most appropriate way to ensure that the Government were listening to all views when considering options for the next step in respect of Section 40. Indeed, the consultation closed on 10 January, and it is estimated that we have received more than 140,000 responses. I know that many Members of this House responded to the consultation, and of course we are grateful that they took the time to do that, but many others have responded as well. It will be necessary to consider the many and diverse views that have been expressed with regard to this matter.

As many Members of the Committee will know, and as the noble Lord, Lord Prescott, mentioned, the consultation is now subject to a legal challenge. While I cannot comment on the ongoing legal proceedings, the Government have committed not to take any final decisions on the matters to which the consultation relates until the judicial review application has been determined. As such, it is not possible for me to set out a timetable for when the Government will respond to the consultation. But of course we hope that that judicial review application will be determined much sooner than later.

That brings me on to the amendments from the noble Baroness, Lady Hollins. The issues that she has raised are of critical importance. I appreciate that she and her family were themselves the subject of press abuse, as were other Members of this House. I also recognise the strength of feeling that parties have on the commencement of Section 40. However, with respect, now is not the right time for this House to consider the present amendment.

News consumption is becoming increasingly global and more and more people are reading their news online from a multitude of sources from around the world. Bringing in a law that effectively mirrors Section 40 but for relevant digital publications only would create an incoherent regime applying different rules depending on the mechanism by which an article has been published.

Noble Lords who have supported these amendments have raised the profile of this issue and given a clear signal of their intent—and of their continuing intent. This has not gone unnoticed in government. But we must ensure that we consider this matter properly. As I said before, a free press is an essential component of a fully functioning democracy and we must ensure that we protect that. I note what the noble Lord, Lord Prescott, said about the position in Ireland. I am not in a position to express a view as to the manner in which that operates but I am perfectly content to indicate that we will look at that going forward as well. I hope that that will satisfy the noble Lord. At this stage, however, I urge the noble Baroness, Lady Hollins, to withdraw her amendment.

[Baroness Hollins]

My Lords, I thank the Minister for his reply. My hope is for a free and responsible press. However, what is most disappointing for the public is that over the last four years of inertia and of the press’s failure to establish a proper regulator, countless more individuals have been affected by press abuse and have no access to redress. They include victims from the Paris Bataclan attack, the Shoreham air disaster, and many more. This issue is still live and is still troubling. All these individuals have been let down by the Government’s decision to renege on their promises and to prevent access to justice for ordinary victims of press abuse. I am disappointed by the Minister’s response and I intend to return to this on Report. I beg leave to withdraw my amendment.

Amendment 233F withdrawn.