Online Safety Act 2023 (Category 1, Category 2A and Category 2B Threshold Conditions) Regulations 2025

Baroness Penn Excerpts

Monday 24th February 2025 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, I rise briefly to illustrate why we are as concerned as we are. One of the platforms that would not come under the categorisation that we would wish it to is Telegram. Last month, on 16 January, a 19 year-old man, Cameron Finnigan, a member of a Satanist extremist group called 764, was sentenced to six years in prison on charges including encouraging suicide and possessing indecent images of a child.

764 originates in the United States; Telegram has been used to disseminate it across the Atlantic. The FBI describes 764 as

“a network of violent extremists who seek to normalize the production, sharing, and possession of child pornography and gore material to desensitize and corrupt youth toward future acts of violence. Members of 764 gain notoriety by systematically targeting, grooming, and extorting victims through online social media platforms”,

particularly the small ones. It continues:

“Members demand that victims engage in and share media of self-mutilation, sexual acts, harm to animals, acts of random violence, suicide, and murder, all for the purpose of accelerating chaos and disrupting society and the world order”.


On that basis, you can understand completely why Ofcom thinks this is fine.

This is unacceptable and the Government really should look at this again. Above all, it is incumbent on Ofcom to recognise that to, apparently wilfully, diverge from the clear stated will of both Houses of Parliament, and what is written in the Act, is not simply inappropriate but, as other noble Lords have suggested, may well be illegal, and that should be looked into.

[Baroness Penn (Con)]

My Lords, I will be incredibly brief, having not been part of the collective of Peers who worked on the parent Act to this statutory instrument. The key question that has been highlighted is, what is the Government’s interpretation now of the powers in the Act? The Government’s and the Official Opposition’s interpretation at the time it was passed was that it had the power to include in category 1 providers on the basis of risk, not size. I am incredibly concerned because, in the debate in the Commons, the Minister said that

“as things stand, the Secretary of State does not have the power to include them”.—[Official Report, Commons, Third Delegated Legislation Committee, 4/2/25; col. 16.]

That was a reference to small but risky providers, and actually the Minister seemed slightly outraged at the implication that they were not acting where they should otherwise be doing so. So can the Minister clarify for this debate whether it is the Government’s position that they would like to include them and that that is the intention that they thought the Act had given them, but they cannot under the law as it is written; or that they do have the powers but have chosen not to, which is our understanding of their decision-making?

The reason that is so important is that the Minister has committed to reviewing these thresholds in future, but such reviews will have very little power if the Act itself is faulty and does not give them the ability to designate on the basis of risk, or the review is pointless because they already have the powers and the evidence of the risk of these providers but are choosing not to act.

I have another point on legal advice. In the debate in the Commons, the Minister committed to writing, including a letter from government lawyers, setting out in great detail what she was saying

“in relation to the powers of the Secretary of State in setting the categories”.—[Official Report, Commons, Third Delegated Legislation Committee, 4/2/25; col. 19.]

In other words, the letter would clarify for people what the interpretation, which has so shifted from the original debate, is from the Government. I may have missed that letter—maybe it was placed in the House of Commons Library—but perhaps the Minister could say whether the letter was written and share its content with this Chamber also, because I think that gets to the heart of what we are regretting today from the Government.

[Lord Knight of Weymouth (Lab)]

I just want to say very briefly that, having served alongside my noble friend Lord Stevenson on the Front Bench during the passage of this Act, I want to thoroughly endorse what he has said. I am very proud of the work that we did together—I echo what the noble Baroness, Lady Morgan, said—to try to create a piece of legislation that could work in a very complex area, and I think we did a good job.

My fear now is that, now that Ofcom, the regulator, has published its road map, it is like a juggernaut: it has just got on with delivering what it was always going to deliver and has ignored what we in this House amended the Bill to do. In that respect, it is treating us with contempt and it is important that we express our regret in one way or another this evening about the way that we have been treated. I came in wanting to be convinced by my noble friend the Minister; I am afraid that so far she has not done it.

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

The SI before us today, based on Ofcom’s advice, is the best way that we can find, in terms of practicality, of enforcing what was written in the Act.

[Baroness Penn (Con)]

Does the Minister accept that the Act does not oblige the Secretary of State to follow Ofcom’s advice, and that the Government have a separate decision-making moment—a process—to consider that advice and reach their own decision? So it is not on Ofcom; it is on the Government. It is the Government who think it is the correct way forward to ignore what was previously in the Act.

[Baroness Jones of Whitchurch (Lab)]

The noble Baroness is right that that is a factor that we considered. The Secretary of State received Ofcom’s advice, duly reflected on it, looked at all the evidence and decided that we would abide by Ofcom’s advice on the issue. It was the Secretary of State’s decision, and that is why we have this SI in front of us today.