Draft Online Safety Bill Report

David Johnston Excerpts

Thursday 13th January 2022 Commons Chamber

[David Johnston (Wantage) (Con)]

My right hon. and learned Friend makes an important point about flexibility. I wonder whether he is familiar with the work of the Epilepsy Society, which has found that people with photo-sensitive epilepsy are being sent flashing images in the hope that that might induce a seizure. Does he feel that that type of harm ought to be incorporated in the definitions in the Bill as well?

[Jeremy Wright]

Sadly, I am familiar with the activity that my hon. Friend describes. Of course, it is quite possible that such activity is unlawful, in which case it may well be covered in that part of the Bill. If it is not, we must ensure that there is sufficient flexibility to cover it elsewhere.

The conflict between flexibility and specificity appears elsewhere too. The Committee is right to say, as was my hon. Friend the Member for Gosport (Dame Caroline Dinenage), that the categorisation approach to differentiating platforms that present greater harm from those that present lesser harm is too blunt an instrument. We need a more sophisticated approach based on risk profile, as the Committee says—one that recognises that risks can emerge from unexpected places and with which we can see small platforms becoming influential very quickly.

I also think that the Committee is entirely right to seek to change the emphasis of the Bill away from solely content and towards activity and systems too, because ultimately it is the ordering, promoting and manipulation of content that is the root of the problem, and that is what the Bill should seek to address. Transparency will of course be crucial in enabling the regulator to do so.

It is also right to highlight, as the report does, what needs adding to or bolstering in the Bill, whether it be anonymity, the management of end-to-end encryption, misinformation and disinformation, or age assurance and verification, which others have spoken about. There are, as the Committee says, other changes needed to the Bill. The structure at the moment is heavily dependent on risk assessments that platforms themselves conduct. There is no provision at the moment for the regulator to do something about those risk assessments being profoundly inadequate, whether by accident or design, and there clearly needs to be.

We all agree that Ofcom needs adequate sanctions to be taken seriously. I welcome, as the Committee does, the Government’s indication that they will bring forward more quickly individual director liability for information offences—in other words, failures to give Ofcom information about what is going on. We need to recognise that out of that arises the potentially fairly ludicrous situation in which an individual director might be engaging in the most appalling conduct, but so long as they are honest with the regulator about it, they are okay. That cannot be right and that is why I think the Committee is right to identify the need for an additional offence to deal with egregious conduct by directors.

The balance between parliamentary oversight and the operation of ministerial discretion in the Bill is, frankly, in the wrong place. There is too little of the former and too much of the latter. Power for Ministers to amend codes of practice in order to reflect Government policy is a particularly chilling potential infringement on the independence of the regulator. That needs to be repaired.

The final point I want to make is this: when we approach a Bill not just of this complexity but with the groundbreaking nature that my hon. Friend the Member for Gosport described, we need to do so with humility. We may not get everything right first time and there is no monopoly of wisdom. There is no example for us to look to internationally and the rest of the world is looking at us to do this first. I take the point made earlier about delay, but we are still doing it first. We need to get it right and I hope the Government will approach it with an open mind.