Draft Online Safety Act 2023 (Category 1, Category 2A and Category 2B Threshold Conditions) Regulations 2025
Debate between Feryal Clark and Kirsty Blackman(1 month, 1 week ago)
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Feryal Clark
I thank all Members for their very powerful contributions to the debate. This instrument will bring us one step closer to a safer online world for our citizens. It is clearer than ever that it is desperately needed: transparency, accountability and user empowerment matter now more than ever.
The Opposition spokesperson, the hon. Member for Huntingdon, asked whether we agree on the need for companies not to wait for the duties in the Act to be implemented, but to ensure that safety is baked in from the start. I absolutely agree, and he will be aware that the Secretary of State has made that point on many occasions. He also raised the issue of proportionality. I confirm that many of the duties on categorised services are subject to the principle of proportionality, which requires Ofcom to consider measures that are technically feasible to providers of a certain size or capacity, and in some cases duties are based on the assessment of risk of harm presented by the service.
For example, in determining what is proportionate for the user empowerment duties on content for category 1 services, the findings of the most recent user empowerment assessments are relevant. They include the incidence of relevant content on the service in addition to the size and capacity of the provider. Where a code of practice is relevant to a duty, Ofcom must have regard to the principles on proportionality, and what is proportionate for one kind of service might not be for another.
The hon. Member for Huntingdon is absolutely right that the pornography review has been completed. The Government are reviewing that at the moment and will publish it in due course.
In response to the hon. Members for Newton Abbot and for Aberdeen North (Kirsty Blackman) and to the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright), when the Online Safety Act was introduced, category 1 thresholds were due to be assessed based on the level of risk and harm for adults—as the Members read out very clearly. That was removed during the passage of the Bill by the previous Government.
As things stand, although Baroness Morgan’s successful amendment made it possible for threshold conditions to be based solely on functionalities, it did not change the basis of Ofcom’s research, which for category 1 is easy, quick and wide dissemination of content. The Secretary of State had to consider that. I will repeat that for all Members to hear again: the Secretary of State has to act within the powers given to him in schedule 11 when setting out the threshold and conditions. The powers do not allow for thresholds to be determined by another body, as per the amendment.
Although the hon. Member for Aberdeen North very powerfully read out the Act, it very clearly sets out that it does not actually do what she is asking for it to do. We absolutely agree that small but risky sites need to be covered, but as it stands, the Secretary of State does not have the powers to include them.
Feryal Clark
Sorry, I have lots of points to cover. If I have not covered the hon Member’s concerns in my response, she is more than welcome to intervene later.
These small but risky services are of significant concern to the Government, and they will still have to protect against illegal content and, where relevant, content that is harmful to children. Ofcom also has a dedicated taskforce to go after them. I hope that answers the hon. Member’s question.
The hon. Member for Newton Abbot also raised the review of Ofcom’s approach. The regulator has already trialled an approach of targeting small but risky services through its regulation of video-sharing platforms. Indeed, a number of those services improved their policies and content moderation in response. All the adult platforms under the VSP regime, large and small, have implemented age verification through this route to ensure that under-18s cannot access pornography on their services. In instances where services fail to make necessary changes, they will face formal enforcement action from Ofcom. Ofcom has a proven track record and the Government have every faith in its ability to take action against non-compliant services.
The hon. Member also raised issues around how Ofcom will enforce action against small but risky services. Ofcom will have robust enforcement powers available to use against companies that fail to fulfil their duties and it will be able to issue enforcement decisions. Action can include fines of up to £18 million or 10% of qualifying worldwide revenue in the relevant year, whichever is higher, and Ofcom can direct companies to take specific steps to comply with its regulation.
Feryal Clark
I am going to make some progress. On livestreaming, Ofcom considered that functionality, but concluded that the key functionalities that spread content easily, quickly and widely are content recommender systems and forwarding or resharing user-generated content.
Services accessed by children must still be safe by design, regardless of whether they are categorised. Small but risky services will also still be required to comply with illegal content duties. The hon. Member for Aberdeen North should be well aware of that as she raised concerns on that issue.
On child safety, there were questions about how online safety protects children from harmful content. The Act requires all services in scope to proactively remove and prevent users from being exposed to priority illegal content, such as illegal suicide content and child sexual exploitation and abuse material. That is already within the remit.
In addition, companies that are likely to be accessed by children will need to take steps to protect children from harmful content and behaviour on their services, including content that is legal but none the less presents a risk of harm to children. The Act designates content that promotes suicide or self-harm as in the category of primary priority content that is harmful to children. Parents and children will also be able to report pro-suicide or pro-self-harm content to the platform and the reporting mechanism will need to be easy to navigate for child users. On 8 May, Ofcom published its draft children’s safety codes of conduct, in which it proposed measures that companies should employ to protect children from suicide and self-harm content, as well as other content.
Finally, on why category 1 is not based on risk, such as the risk of hate speech, when the Act was introduced, category 1 thresholds were due to be assessed on the level of risk of harm to adults from priority content disseminated by means of that service. As I said earlier, that was removed during the Act’s passage by the then Government and replaced with consideration of the likely functionalities and how easily, quickly and widely user-generated content is disseminated, which is a significant change. Although the Government understand that that approach has its critics, who argue that the risk of harm is the most significant factor, that is the position under the Act.
Kirsty Blackman
The Minister is making the case that the Secretary of State’s hands are tied by the Act —that it requires stuff in relation to the number of users. Can she tell us in which part of the Act it says that, because it does not say that? If she can tell us where it is in the Act, I am quite willing to sit down and shut up about this point, but it is not in the Act.
Feryal Clark
The legislation allows the Secretary of State to deviate from Ofcom’s advice and to publish a statement explaining why. However, the core consideration for category 1 under schedule 11 is—I repeat for the third time—how easily, quickly and widely regulated user-generated content is disseminated by means of a service. As a result, for category 1, Ofcom concluded that the content is disseminated with increased breadth as the number of users increases.
The decision to proceed with the threshold combination recommended by Ofcom, rather than discounting user-number thresholds, reflects that any threshold condition created by the Government should consider the factors as set out in the Act, including easy, quick and wide dissemination for category 1, and the evidence base. That is what the Act says. As a result, the Government decided to not proceed with an approach that deviated from Ofcom’s recommendation, particularly considering the risk of unintended consequences.
I am more than happy to write to the hon. Member for Aberdeen North with the full details. I understand that she feels very passionately about this point, but the Act is the Act. Although I am grateful for her contribution, I have to follow what the Act says, based on the legal advice that I get.