Online Safety Bill

Baroness Kidron Excerpts

Committee stage
Tuesday 9th May 2023 Lords Chamber

[Baroness Buscombe (Con)]

Okay; I thank my noble friend for his response. However, I would just say that we never would have broken like that, before 7.30 pm. I will leave it at that, but I will have a word with the usual channels.

[Baroness Kidron (CB)]

My Lords, I rise to speak to Amendments 141 and 303 in the name of the noble Lord, Lord Stevenson. Before I do, I mention in passing how delighted I was to see Amendment 40, which carries the names of the Minister and the noble Lord, Lord Stevenson—may there be many more like that.

I am concerned that without Amendments 141 and 303, the concept of “verified” is not really something that the law can take seriously. I want to ask the Minister two rather technical questions. First, how confident can the Government and Ofcom be that with the current wording, Ofcom could form an assessment of whether Twitter’s current “verified by blue” system satisfies the duty in terms of robustness? If it does not, does Ofcom have the power to send it back to the drawing board? I am sure noble Lords understand why I raise this: we have recently seen “verified by blue” ticks successfully bought by accounts impersonating Martin Lewis, US Senators and Putin propagandists. My concern is that in the absence of a definition of verification in the Bill such as the one proposed in Amendments 141 and 303, where in the current wording does Ofcom have the authority to say that “verified by blue” does not satisfy the user verification duty?

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[Lord Clement-Jones (LD)]

I entirely understand what the noble Baroness is saying, and I know that she feels particularly strongly about these issues given her experiences. The whole Bill is about trying to weigh up different aspects—we are on day 5 now, and this has been very much the tenor of what we are trying to talk about in terms of balance.

[Baroness Kidron (CB)]

I want to reassure the noble Baroness that we did discuss anonymity in relation to the issues that she has put forward. A company should not be able to use anonymity as an excuse not to deal with the situation, and that is slightly different from simply saying, “We throw our hands up on those issues”.

There was a difference between the fact that companies are using anonymity to say, “We don’t know who it is, and therefore we can’t deal with it”, and the idea that they should take action against people who are abusing the system and the terms of service. It is subtle, but it is very meaningful in relation to what the noble Baroness is suggesting.

[Lord Clement-Jones (LD)]

That is a very fair description. We have tried to emphasise throughout the discussion on the Bill that it is about not just content but how the system and algorithms work in terms of amplification. In page 35 of our report, we try to address some of those issues—it is not central to the point about anonymity, but we certainly talked about the way that messages are driven by the algorithm. Obviously, how that operates in practice and how the Bill as drafted operates is what we are kicking the tyres on at the moment, and the noble Baroness is absolutely right to do that.

The Government’s response was reasonably satisfactory, but this is exactly why this group explores the definition of verification and so on, and tries to set standards for verification, because we believe that there is a gap in all this. I understand that this is not central to the noble Baroness’s case, but—believe me—the discussion of anonymity was one of the most difficult issues that we discussed in the Joint Committee, and you have to fall somewhere in that discussion.

Requiring platforms to allow users to see other users’ verification status is a crucial further pillar to user empowerment, and it provides users with a key piece of information about other users. Being able to see whether an account is verified would empower victims of online abuse or threats—I think this partly answers the noble Baroness’s question—to make more informed judgments about the source of the problem, and therefore take more effective steps to protect themselves. Making verification status visible to all users puts more choice in their hands as to how they manage the higher risks associated with non-verified and anonymous accounts, and offers them a lighter-touch alternative to filtering out all non-verified users entirely.

We on these Benches support the amendments that have been put forward. Amendment 141 aims to ensure that a user verification duty delivers in the way that the public and Government hope it will—by giving Ofcom a clear remit to require that the verification systems that platforms are required to develop in response to the duty are sufficiently rigorous and accessible to all users.

I was taken by what the noble Baroness, Lady Bull, said, particularly the case for Ofcom’s duties as regards those with disabilities. We need Ofcom to be tasked with setting out the principles and minimum standards, because otherwise platforms will try to claim, as verification, systems that do not genuinely verify a user’s identity, are unaffordable to ordinary users or use their data inappropriately.

Likewise, we support Amendment 303, which would introduce a definition of “user identity verification” into the Bill to ensure that we are all on the same page. In Committee in the House of Commons, Ministers suggested that “user identity verification” is an everyday term so does not need a definition. This amendment, which no doubt the noble Baroness, Lady Merron, will speak to in more detail, is bang on point as far as that is concerned. That was not a convincing answer, and that is why this amendment is particularly apt.

I heard what the noble Baroness, Lady Buscombe, had to say, but in many ways the amendment in the previous group in the name of the noble Lord, Lord Knight, met some of the noble Baroness’s concerns. As regards the amendment in the name of the noble Lord, Lord Moylan, we are all Wikipedia fans, so we all want to make sure that there is no barrier to Wikipedia operating successfully. I wonder whether perhaps the noble Lord is making quite a lot out of the Wikipedia experience, but I am sure the Minister will enlighten us all and will have a spot-on response for him.

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[Baroness Kidron (CB)]

I am sorry to interrupt the noble Lord. Is the answer to my question that the blue tick and the current Meta system will not be considered as verification under the terms of the Bill? Is that the implication of what he said?

[Lord Parkinson of Whitley Bay (Con)]

Yes. The blue tick is certainly not identity verification. I will write to confirm on Meta, but they are separate and, as the example of blue ticks and Twitter shows, a changing feast. That is why I am talking in general terms about the approach, so as not to rely too much on examples that are changing even in the course of this Committee.

Government Amendment 43A stands in my name. This clarifies that “non-verified user” refers to users whether they are based in the UK or elsewhere. This ensures that, if a UK user decides he or she no longer wishes to interact with non-verified users, this will apply regardless of where they are based.

Finally, Amendment 106 in the name of my noble friend Lady Buscombe would make an addition to the online safety objectives for regulated user-to-user services. It would amend them to make it clear that one of the Bill’s objectives is to protect people from communications offences committed by anonymous users.

The Bill already imposes duties on services to tackle illegal content. Those duties apply across all areas of a service, including the way it is designed and operated. Platforms will be required to take measures—for instance, changing the design of functionalities, algorithms, and other features such as anonymity—to tackle illegal content.

Ofcom is also required to ensure that user-to-user services are designed and operated to protect people from harm, including with regard to functionalities and other features relating to the operation of their service. This will likely include the use of anonymous accounts to commit offences in the scope of the Bill. My noble friend’s amendment is therefore not needed. I hope she will be satisfied not to press it, along with the other noble Lords who have amendments in this group.

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[Lord Black of Brentwood (Con)]

My Lords, this is my first opportunity to speak in Committee on this important Bill, but I have followed it very closely, and the spirit in which constructive debate has been conducted has been genuinely exemplary. In many ways, it mirrors the manner in which the Joint Committee, on which I had the privilege to serve with other noble Lords, was conducted, and its report rightly has influenced our proceedings in so many ways. I declare an interest as deputy chairman of Telegraph Media Group, which is a member of the News Media Association, and a director of the Regulatory Funding Company, and note my other interests as set out in the register.

I will avoid the temptation to ruminate philosophically, as the noble Baroness, Lady Fox, entertained us by doing. I will speak to Amendment 48, in the name of the noble Lord, Lord Stevenson of Balmacara, and the other amendments which impact on the definition of “recognised news publisher”. As the noble Lord said, his amendments are pretty robust in what they seek to achieve, but I am very pleased that he has tabled them, because it is important that we have a debate about how the Bill impacts on freedom of expression—I use that phrase advisedly—and press and media freedom. The noble Lord’s aims are laudable but do not quite deliver what he intends.

I will explain why it is important that Clauses 13 and 14 stand part of the Bill, and without amendments of the sort proposed. The Joint Committee considered this issue in some detail and supported the inclusion of the news publisher content exemption. These clauses are crucial to the whole architecture of the Bill because they protect news publishers from being dragged into an onerous regime of statutory content control. The press—these clauses cover the broadcasters too—have not been subject to any form of statutory regulation since the end of the 17th century. That is what we understand by press freedom: that the state and its institutions do not have a role in controlling or censoring comment. Clauses 13 and 14 protect that position and ensure that the media, which is of course subject to rigorous independent standard codes as well as to criminal and civil law, does not become part of a system of state regulation by the back door because of its websites and digital products.

That is what is at the heart of these clauses. However, it is not a carte blanche exemption without caveats. As the Joint Committee looked at, and as we have heard, to qualify for it, publishers must meet stringent criteria, as set out in Clause 50, which include being subject to standards codes, having legal responsibility for material published, having effective policies to handle complaints, and so on. It is exactly the same tough definition as was set out in the National Security Bill, which noble Lords across the House supported when it was on Report here.

Without such clear definitions, alongside requirements not to take down or restrict access to trusted news sources without notification, opaque algorithms conjured up in Silicon Valley would end up restricting the access of UK citizens to news, with scant meaningful scope for reinstating it given the short shelf life of news. Ultimately, that would have a profound impact on the public’s right to access news, something which the noble Baroness rightly highlighted. That is why the Joint Committee recommended, at paragraph 304 of its report, that the Bill was

“strengthened to include a requirement that news publisher content should not be moderated, restricted or removed unless it is content the publication of which clearly constitutes a criminal offence, or which has been found to be unlawful by order of a court within the appropriate jurisdiction”.

The Government listened to that concern that the platforms would put themselves in the position of censor on issues of democratic importance, and quite rightly amended the draft Bill to deal with that point. Without it, instead of trusted, curated, regulated news comment, from the BBC to the Guardian to the Manchester Evening News, news would end up being filtered by Google and Facebook. That would be a crushing blow to free speech, to which all noble Lords are absolutely committed.

So, instead of these clauses acting as a bulwark against disinformation by protecting content of democratic importance, they would weaken the position of trusted news providers by introducing too much ambiguity into the system. As we all know, ambiguity brings with it legal challenge and constant controversy. This is especially so given that the exemptions that we are talking about already exist in statute elsewhere, which would cause endless confusion.

I understand the rationale behind many of the amendments, but I fear they would not work in practice. Free speech—and again I use the words advisedly—is a very delicate bloom, which can easily be swept away by badly drafted, uncertain or opaque laws. Its protection needs certainty, which is what the Bill, as it stands, provides. A general catch-all clause would be subject, I fear, to endless argument with the platforms, which are well known for such tactics and for endless legal wrangling.

I noted the remarks of the noble Lord, Lord Stevenson of Balmacara, in his superb speech on the opening day in Committee, when he said that one issue with the Bill is that it

“is very difficult to understand, in part because of its innate complexity and in part because it has been revised so often”. [Official Report, 19/4/23; col. 700.]


He added, in a welcome panegyric to clarity and concision, that given that it is a long and complex Bill, why would we add to it? I agree absolutely with him, but those are arguments for not changing the Bill in the way he proposes. I believe the existing provisions are clear and precise, practical and carefully calibrated. They do not leave room for doubt, and protect media freedom, investigative journalism and the citizen’s right to access authoritative news, which is why I support the Bill as it stands.

[Baroness Kidron (CB)]

My Lords, given the lateness of the hour, I will make just three very brief points. The first is that I find it really fascinating that the amendments in the name of the noble Baroness, Lady Stowell, come from a completely different perspective, but still demand transparency over what is going on. I fully support the formation that she has found, and I think that in many ways they are better than the other ones which came from the other perspective. But what I urge the Minister to hear is that we all seek transparency over what is going on.

Secondly, in many of the amendments—I think I counted about 14 or 15 in the name of the noble Lord, Lord Moylan, and also of the noble Lord, Lord Kamall—there is absolutely nothing I disagree with. My problem with these amendments really goes back to the debate we had on the first day on Amendment 1, in the name of the noble Lord, Lord Stevenson. He set out the purposes of the Bill, and the Minister gave what was considered by most Members of your Lordships’ House to be the groundwork of a very excellent alternative, in the language of government. It appears, as we go on, that many dozens of amendments could be dropped in favour of this purposive clause, which itself could include reference to human rights, children’s rights, the Equality Act, the importance of freedom of expression under the law, and so on. I urge the Minister to consider the feeling of the House: that the things said at the Dispatch Box to be implicit, again and again, the House requires to be explicit. This is one way we could do it, in short form, as the noble Lord, Lord Black, just urged us.

Thirdly, I do have to speak against Amendment 294. I would be happy to take the noble Lord, Lord Moylan, through dozens of studies that show the psychological impact of online harms: systems that groom users to gamble, that reward them for being online at any cost to their health and well-being, that profile them to offer harmful material, and more of the same whether they ask for it or not, and so on. I am also very happy to put some expert voices at his disposal, but I will just say this: the biggest clue as to why this amendment is wrongheaded is the number of behavioural psychologists that are employed by the tech sector. They are there, trying to get at our behaviours and thoughts; they anticipate our move and actually try to predict and create the next move. That is why we have to have psychological harm in the Bill.