Online Safety Bill

David Davis Excerpts

Report stage
Monday 5th December 2022 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

My intervention is on the same point as that raised by my right hon. Friend the Member for North West Hampshire (Kit Malthouse), but from the opposite direction, in effect. What if it turns out that, as many security specialists and British leaders in security believe—not just the companies, but professors of security at Cambridge and that sort of thing—it is not possible to implement such measures without weakening encryption? What will the Minister’s Bill do then?

[Paul Scully]

The Bill is very specific with regard to encryption; this provision will cover solely CSEA and terrorism. It is important that we do not encroach on privacy.

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[Alex Davies-Jones]

It may be a drop in the ocean to the likes of Elon Musk or Mark Zuckerberg—these multibillionaires who are taking over social media and using it as their personal plaything. They are not going to listen to fines; the only way they are going to listen, sit up and take notice is if criminal liability puts their neck on the line and makes them answer for some of the huge failures of which they are aware.

The right hon. and learned Member mentions that he shares the sentiment of the amendment but feels it could be wrong. We have an opportunity here to put things right and put responsibility where it belongs: with the tech companies, the platforms and the managers responsible. In a similar way to what happens in the financial sector or in health and safety regulation, it is vital that people be held responsible for issues on their platforms. We feel that criminal liability will make that happen.

[Mr David Davis]

May I intervene on a point of fact? The hon. Lady says that fines are a drop in the ocean. The turnover of Google is $69 billion; 10% of that is just shy of $7 billion. That is not a drop in the ocean, even to Elon Musk.

[Alex Davies-Jones]

We are looking at putting people on the line. It needs to be something that people actually care about. Money does not matter to these people, as we have seen with the likes of Google, Elon Musk and Mark Zuckerberg; what matters to them is actually being held to account. Money may matter to Government Members, but it will be criminal liability that causes people to sit up, listen and take responsibility.

While I am not generally in the habit of predicting the Minister’s response or indeed his motives—although my job would be a hell of a lot easier if I did—I am confident that he will try to peddle the line that it was the Government who introduced director liability for compliance failures in an earlier draft of the Bill. Let me be crystal clear in making this point, because it is important. The Bill, in its current form, makes individuals at the top of companies personally liable only when a platform fails to supply information to Ofcom, which misses the point entirely. Directors must be held personally liable when safety duties are breached. That really is quite simple, and I am confident that it would be effective in tackling harm online much more widely.

We also support new clause 28, which seeks to establish an advocacy body to represent the interests of children online. It is intended to deal with a glaring omission from the Bill, which means that children who experience online sexual abuse will receive fewer statutory user advocacy protections than users of a post office or even passengers on a bus. The Minister must know that that is wrong and, given his Government’s so-called commitment to protecting children, I hope he will carefully consider a new clause which is supported by Members on both sides of the House as well as the brilliant National Society for the Prevention of Cruelty to Children. In rejecting new clause 28, the Government would be denying vulnerable children a strong, authoritative voice to represent them directly, so I am keen to hear the Minister’s justification for doing so, if that is indeed his plan.

Members will have noted the bundle of amendments tabled by my hon. Friend the Member for Worsley and Eccles South (Barbara Keeley) relating to Labour’s concerns about the unnecessary powers to overrule Ofcom that the Bill, as currently drafted, gives the Secretary of State of the day. During Committee evidence sessions, we heard from Will Perrin of the Carnegie UK Trust, who, as Members will know, is an incredibly knowledgeable voice when it comes to internet regulation. He expressed concern about the fact that, in comparison with other regulatory frameworks such as those in place for advertising, the Bill

“goes a little too far in introducing a range of powers for the Secretary of State to interfere with Ofcom’s day-to-day doing of its business.”––[Official Report, Online Safety Public Bill Committee, 26 May 2022; c. 117.]

Labour shares that concern. Ofcom must be truly independent if it is to be an effective regulator. Surely we have to trust it to undertake logical processes, rooted in evidence, to arrive at decisions once this regime is finally up and running. It is therefore hard to understand how the Government can justify direct interference, and I hope that the Minister will seriously consider amendments 23 to 30, 32, and 35 to 41.

Before I address Labour’s main concerns about the Government’s proposed changes to the Bill, I want to record our support for new clauses 29 and 30, which seek to bring media literacy duties back into the scope of the Bill. As we all know, media literacy is the first line of defence when it comes to protecting ourselves against false information online. Prevention is always better than cure. Whether it is a question of viral conspiracy theories or Russian disinformation, Labour fears that the Government’s approach to internet regulation will create a two-tier internet, leaving some more vulnerable than others.

However, I am sorry to say that the gaps in this Bill do not stop there. I was pleased to see that my hon. Friend the Member for Rotherham (Sarah Champion) had tabled new clause 54, which asks the Government to formally consider the impact that the use of virtual private networks will have on Ofcom’s ability to enforce its powers. This touches on the issue of future-proofing, which Labour has raised repeatedly in debates on the Bill. As we have heard from a number of Members, the tech industry is evolving rapidly, with concepts such as the metaverse changing the way in which we will all interact with the internet in the future. When the Bill was first introduced, TikTok was not even a platform. I hope the Minister can reassure us that the Bill will be flexible enough to deal with those challenges head-on; after all, we have waited far too long.

That brings me to what Labour considers to be an incredible overturn by the Government relating to amendment 239, which seeks to remove the new offence of harmful communications from the Bill entirely. As Members will know, the communications offence was designed by the Law Commission with the intention of introducing a criminal threshold for the most dangerous online harms. Indeed, in Committee it was welcome to hear the then Minister—the present Minister for Crime, Policing and Fire, the right hon. Member for Croydon South (Chris Philp)—being so positive about the Government’s consultation with the commission. In relation to clause 151, which concerns the communications offences, he even said:

“The Law Commission is the expert in this kind of thing…and it is right that, by and large, we follow its expert advice in framing these offences, unless there is a very good reason not to. That is what we have done—we have followed the Law Commission’s advice, as we would be expected to do.” ––[Official Report, Online Safety Public Bill Committee, 21 June 2022; c. 558.]

Less than six months down the line, we are seeing yet another U-turn from this Government, who are doing precisely the opposite of what was promised.

Removing these communications offences from the Bill will have real-life consequences. It will mean that harmful online trends such as hoax bomb threats, abusive social media pile-ons and fake news such as encouraging people to drink bleach to cure covid will be allowed to spread online without any consequence.

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This loose cannon, Elon Musk, is an enormously wealthy man, and he is quite strange, isn’t he? He is intrinsically imbued with the power of silicon valley and those new techno-masters of the universe. We are dealing with those realities, and this Bill is very imperfect.

[Mr David Davis]

My hon. Friend is giving a fascinating disquisition on this industry, but is not the implication that, in effect, these companies are modern buccaneer states and we need to do much more to legislate? I am normally a deregulator, but we need more than one Bill to do what we seek to do today.

[Julian Knight]

My right hon. Friend is correct. We spoke privately before this debate, and he said this is almost five Bills in one. There will be a patchwork of legislation, and there is a time limit. This is a carry-over Bill, and we have to get it on the statute book.

This Bill is not perfect by any stretch of the imagination, and I take the Opposition’s genuine concerns about legal but harmful material. The shadow Minister mentioned the tragic case of Molly Russell. I heard her father being interviewed on the “Today” programme, and he spoke about how at least three quarters of the content he had seen that had prompted that young person to take her life had been legal but harmful. We have to stand up, think and try our best to ensure there is a safer space for young people. This Bill does part of that work, but only part. The work will be done in the execution of the Bill, through the wording on age verification and age assurance.

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In what world do we live where overpaid executives running around in their jeans and sneakers are allowed to make decisions on the hoof about how their platforms should be regulated without being held to account for their actions?

[Mr David Davis]

The right hon. Lady and I have co-operated to deal with international corporate villains, so I am interested in her proposal. However, a great number of these actions are taken by algorithms—I speak as someone who was taken down by a Google algorithm—so what happens then? I see no reason why we should not penalise directors, but how do we establish culpability?

[Dame Margaret Hodge]

That is for an investigation by the appropriate enforcement agency—Ofcom et al.—and if there is evidence that culpability rests with the managing director, the owner or whoever, they should be prosecuted. It is as simple as that. A case would have to be established through evidence, and that should be carried out by the enforcement agency. I do not think that this is any different from any other form of financial or other crime. In fact, it is from my experience in that that I came to this conclusion.

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When Ian Russell spoke about his daughter’s experience, I thought it was particularly moving when he said that police officers were not allowed to view the content on their own. They worked in shifts for short periods of time, yet that content was pushed at a vulnerable girl by a social media platform algorithm when she was on her own, probably late at night, with no one else to see it and no one to protect her. That was done in a systematic way, consistently, over a lengthy period of time. People should be held to account for that. It is outrageous—it is disgusting—that that was allowed to happen. Preventing that is one of the changes that the Bill will help us to deliver.

[Mr David Davis]

I listened with interest to the comments of the right hon. Member for Barking (Dame Margaret Hodge) about who should be held responsible. I am trying to think through how that would work in practice. Frankly, the adjudication mechanism, under Ofcom or whoever it might be, would probably take a rather different view in the case of a company: bluntly, it would go for “on the balance of probabilities”, whereas with an individual it might go for “beyond reasonable doubt”. I am struggling —really struggling—with the question of which would work best. Does my hon. Friend have a view?

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[Sarah Champion]

Thank you, Madam Deputy Speaker. The Minister has the potential to do so much with this Bill. I urge him to do it, and to do it speedily, because that is what this country really needs.

[Mr David Davis]

I do not agree with every detail of what the hon. Member for Rotherham (Sarah Champion) said, but I share her aims. She has exactly the right surname for what she does in standing up for children.

To avoid the risk of giving my Whip a seizure, I congratulate the Government and the Minister on all they have done so far, both in delaying the Bill and in modifying their stance.

My hon. Friend the Member for Solihull (Julian Knight), who is no longer in the Chamber, said that this is five Bills in one and should have had massively more time. At the risk of sounding like a very old man, there was a time when this Bill would have had five days on Report. That is what should have happened with such a big Bill.

Opposition Members will not agree, but I am grateful that the Government decided to remove the legal but harmful clause. The simple fact is that the hon. Member for Pontypridd (Alex Davies-Jones) and I differ not in our aim—my new clause 16 is specifically designed to protect children—but on the method of achieving it. Once upon a time, there was a tradition that this Chamber would consider a Companies Bill every year, because things change over time. We ought to have a digital Bill every year, specifically to address not legal but harmful but, “Is it harmful enough to be made illegal?” Obviously, self-harm material is harmful enough to be made illegal.

The hon. Lady and I have similar aims, but we have different perspectives on how to attack this. My perspective is as someone who has seen many pieces of legislation go badly wrong despite the best of intentions.

The Under-Secretary of State for Digital, Culture, Media and Sport, my hon. Friend the Member for Sutton and Cheam (Paul Scully), knows he is a favourite of mine. He did a fantastic job in his previous role. I think this Bill is a huge improvement, but he has a lot more to do, as he recognises with the Bill returning to Committee.

One area on which I disagree with many of my hon. and right hon. Friends is the question of encryption. The Bill allows Ofcom to issue notices directing companies to use “accredited technology,” but it might as well say “magic,” because we do not know what is meant by “accredited technology.” Clause 104 will create a pressure to undermine the end-to-end encryption that is not only desirable but crucial to our telecommunications. The clause sounds innocuous and legalistic, especially given that the notices will be issued to remove terrorist or child sexual exploitation content, which we all agree has no place online.

[Damian Collins]

Rather than it being magic, does my right hon. Friend agree that a company could not ignore it if we demystified the process? By saying there is an existing technology that is available and proven to work, the company would have to explain why it is not using that technology or something better.

[Mr Davis]

I will come back to that in some detail.

The first time I used encryption it was one-time pads and Morse, so it was a long time ago. The last time was much more recent. The issue here is that clause 104 causes pressure by requiring real-time decryption. The only way to do that is by either having it unencrypted on the server, having it weakly encrypted or creating a back door. I am talking not about metadata, which I will come back to in a second, but about content. In that context, if the content needs to be rapidly accessible, it is bound to lead to weakened encryption.

This is perhaps a debate for a specialist forum, but it is very dangerous in a whole series of areas. What do we use encryption for? We use it for banking, for legal and privileged conversations, and for conversations with our constituents and families. I could go on and on about the areas in which encryption matters.

[Adam Afriyie (Windsor) (Con)]

My right hon. Friend will be aware that the measure will encompass every single telephone conversation when it switches to IP. That is data, too.

[Mr Davis]

That is correct. The companies cannot easily focus the measure on malicious content alone, and that is the problem. With everything we do in dealing with enforcing the law, we have to balance the extent to which we make the job of the law enforcement agency possible—ideally, easy—against the rights we take away from innocent citizens. That is the key balance. Many bad things happen in households but we do not require people to live in houses with glass walls. That shows the intrinsic problem we have.

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[Sir William Cash (Stone) (Con)]

Many years ago, in the 1970s, I was much involved in the Protection of Children Bill, which was one of the first steps in condemning and making illegal explicit imagery of children and their involvement in the making of such films. We then had the broadcasting Acts and the video Acts, and I was very much involved at that time in saying that we ought to prohibit such things in videos and so on. I got an enormous amount of flack for that. We have now moved right the way forward and it is tremendous to see not only the Government but the Opposition co-operating together on this theme. I very much sympathise with not only what my right hon. Friend has just said—I am very inclined to support his new clause for that reason— but with what the right hon. Member for Barking (Dame Margaret Hodge) said. I was deeply impressed by the way in which she presented the argument about the personal liability of directors. We cannot distinguish between a company and the people who run it, and I am interested to hear what the Government have to say in reply to that.

[Mr Davis]

I very much agree with my hon. Friend on that. He and I have been allies in the past—and sometimes opponents—and he has often been far ahead of other people. I am afraid that I do not remember the example from the 1970s, as that was before even my time here, but I remember the intervention he made in the 1990s and the fuss it caused. From that point of view, I absolutely agree with him. My new clause is clearly worded and I hope the House will give it proper consideration. It is important that we put something in the Bill on this issue, even if the Government, quite properly, amend it later.

I wish to raise one last point, which has come up as we have talked through these issues. I refer to the question of individual responsibility. One or two hon. Ladies on the Opposition Benches have cited algorithmic outcomes. As I said to the right hon. Member for Barking, I am worried about how we place the responsibility, and how it would lead the courts to behave, and so on. We will debate that in the next few days and when the Bill comes back again.

There is one other issue that nothing in this Bill covers, and I am not entirely sure why. Much of the behaviour pattern is algorithmic and it is algorithmic with an explicit design. As a number of people have said, it is designed as clickbait; it is designed to bring people back. We may get to a point, particularly if we come back to this year after year, of saying, “There are going to be rules about your algorithms, so you have to write it into the algorithm. You will not use certain sorts of content, pornographic content and so on, as clickbait.” We need to think about that in a sophisticated and subtle way. I am looking at my hon. Friend the Member for Folkestone and Hythe (Damian Collins), the ex-Chairman of the Select Committee, on this issue. If we are going to be the innovators—and we are the digital world innovators— we have to get this right.

[Damian Collins]

My right hon. Friend is right to raise this important point. The big area here is not only clickbait, but AI-generated recommendation tools, such as a news feed on Facebook or “next up” on YouTube. Mitigating the illegal content on the platforms is not just about content moderation and removal; it is about not promoting.

[Mr Davis]

My hon. Friend is exactly right about that. I used the example of clickbait as shorthand. The simple truth is that “AI-generated” is also a misnomer, because these things are not normally AI; they are normally algorithms written specifically to recommend and to maximise returns and revenue. We are not surprised at that. Why should we be? After all, these are commercial companies we are talking about and that is what they are going to do. Every commercial company in the world operates within a regulatory framework that prevents them from making profits out of antisocial behaviour.

[Aaron Bell (Newcastle-under-Lyme) (Con)]

On the AI point, let me say that the advances we have seen over the weekend are remarkable. I have just asked OpenAI.com to write a speech in favour of the Bill and it is not bad. That goes to show that the risks to people are not just going to come from algorithms; people are going to be increasingly scammed by AI. We need a Bill that can adapt with the times as we move forward.

[Mr Davis]

Perhaps we should run my speech against—[Laughter.] I am teasing. I am coming to the end of my comments, Madam Deputy Speaker. The simple truth is that these mechanisms—call them what you like—are controllable if we put our mind to it. It requires subtlety, testing the thing out in practice and enormous expert input, but we can get this right.

[Several hon. Members rose—]

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[Mr Davis]

I rise in support of the right hon. Gentleman. The production order structure, as it stands, is already being abused: I know of a case in place today. The measure should be stronger and clearer—the Bill contains almost nothing on this—on the protection of journalists, whistleblowers and all people for public interest reasons.