Online Safety Bill

Baroness Merron Excerpts

Committee stage
Thursday 22nd June 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, this has been an interesting debate, though one of two halves, if not three.

The noble Lord, Lord Bethell, introduced his amendment in a very measured way. My noble friend Lady Benjamin really regrets that she cannot be here, but she strongly supports it. I will quote her without taking her speech entirely on board, as we have been admonished for that previously. She would have said that

“credit card companies have claimed ignorance using the excuse of how could they be expected to know they are supporting porn if they were not responsible for maintaining porn websites … This is simply not acceptable”.

Noble Lords must forgive me—I could not possibly have delivered that in the way that my noble friend would have done. However, I very much took on board what the noble Lord said about how this makes breaches transparent to the credit card companies. It is a right to be informed, not an enforcement power. The noble Lord described it as a simple and proportionate measure, which I think is fair. I would very much like to hear from the Minister why, given the importance of credit card companies in the provision of pornographic content, this is not acceptable to the Government.

The second part of this group is all about effective enforcement, which the noble Lord, Lord Bethell, spoke to as well. This is quite technical; it is really important that these issues have been raised, in particular by the noble Lord. The question is whether Ofcom has the appropriate enforcement powers. I was very taken by the phrase

“pre-empt a possible legal challenge”,

as it is quite helpful to get your retaliation in first. Underlying all this is that we need to know what advice the Minister and Ofcom are getting about the enforcement powers and so on.

I am slightly more sceptical about the amendments from the noble Lord, Lord Curry. I am all in favour of the need for speed in enforcement, particularly having argued for it in competition cases, where getting ex-ante powers is always a good idea—the faster one can move, the better. However, restricting the discretion of Ofcom in those circumstances seems to me a bit over the top. Many of us have expressed our confidence in Ofcom as we have gone through the Bill. We may come back to this in future; none of us thinks the Bill will necessarily be the perfect instrument, and it may prove that we do not have a sufficiently muscular regulator. I entirely respect the noble Lord’s track record and experience in regulation, but Ofcom has so far given us confidence that it will be a muscular regulator.

I turn now to the third part of the group. I was interested in the context in which my noble friend placed enforcement; it is really important and supported by the noble Baroness, Lady Morgan. It is interesting what questions have been asked about the full extent of the Government’s ambitions in this respect: are VPNs going to be subject to these kinds of notices? I would hope so; if VPNs are really the gateway to some of the unacceptable harms that we are trying to prevent, we should know about that. We should be very cognisant of the kind of possible culture being adopted by some of the social media and regulated services, and we should tailor our response accordingly. I will be interested to hear what the Government have to say on that.

[Baroness Merron (Lab)]

My Lords, I am grateful to the noble Lords, Lord Bethell, Lord Curry and Lord Allan for introducing their amendments, to the noble Baroness, Lady Morgan, for her direct question, and to the noble Baroness, Lady Kidron, for her equally direct question. I am sure they will be of great assistance to the Minister when he replies. I will highlight the words of the noble Lord, Lord Allan, who said “We are looking for services to succeed”. I think that is right, but what is success? It includes compliance and enforcement, and that is what this group refers to.

The amendments introduced by the noble Lord, Lord Bethell, seek to strengthen what is already in the Bill about Ofcom’s Chapter 6 powers of enforcement, otherwise known as business disruption powers, and they focus on what happens in the event of a breach; they seek to be more prescriptive than what we already have. I am sure the Minister will remember that the same issue came up in the Digital Economy Bill, around the suggestion that the Government should take specific powers. There, the Government argued they had assurances from credit card companies that, if and when action was required, they would co-operate. In light of that previous discussion, it will be interesting to hear what the Minister has to say.

In respect of the amendments introduced by the noble Lord, Lord Curry, on the need to toughen up requirements on Ofcom to act, I am sure the Minister will say that these powers are not required and that the Bill already makes provision for Ofcom blocking services which are failing in their duties. I echo the concern of the noble Lord, Lord Clement-Jones, about being overly prescriptive and not allowing Ofcom to do its job. The truth is that Ofcom may need discretion but it also needs teeth, and I will be interested to hear what the Minister has to say about whether he feels, in the light of the debate today and other conversations, that there is sufficient toughness in the Bill and that Ofcom will be able to do the job it is required to do. There is an issue of the balance of discretion versus requirement, and I know he will refer to this. I will also be interested to hear from the Minister about the view of Ofcom with respect to what is in the Bill, and whether it feels that it has sufficient powers.

I will raise a final point about the amendments in the name of the noble Lord, Lord Curry. I think they ask a valid question about the level of discretion that Ofcom will have. I ask the Minister this: if, a few years down the line, we find that Ofcom has not used the powers suitably, despite clear failures, what would the Government seek to do? With that, I look forward to hearing from the Minister.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, where necessary, the regulator will be able to apply to the courts for business disruption measures. These are court orders which will require third-party ancillary services and access facilities to withdraw their services from, or impede users’ access to, non-compliant regulated services. These are strong, flexible powers which will ensure that Ofcom can take robust action to protect users. At the same time, we have ensured that due process is followed. An application for a court order will have to specify the non-compliant provider, the grounds and evidence on which the application is based and the steps that third parties must take to withdraw services or block users’ access. Courts will consider whether business disruption measures are an appropriate way of preventing harm to users and, if an order is granted, ensure it is proportionate to the risk of harm. The court will also consider the interests of all relevant parties, which may include factors such as contractual terms, technical feasibility and the costs of the measures. These powers will ensure that services can be held to account for failure to comply with their duties under the Bill, while ensuring that Ofcom’s approach to enforcement is proportionate and upholds due process.