Online Safety Bill

Joanna Cherry Excerpts

Report stage
Tuesday 12th July 2022 Commons Chamber

[Damian Collins]

My right hon. Friend is entirely right on that point. The structure of the Bill is very simple. There is a legal priority of harms, and things that are illegal offline will be regulated online at the level of the criminal threshold. There are protections for freedom of speech and there is proper transparency about harmful content, which I will come on to address.

[Joanna Cherry (Edinburgh South West) (SNP)]

Does the Minister agree that, in moderating content, category 1 service providers such as Twitter should be bound by the duties under our domestic law not to discriminate against anyone on the grounds of a protected characteristic? Will he take a look at the amendments I have brought forward today on that point, which I had the opportunity of discussing with his predecessor, who I think was sympathetic?

[Damian Collins]

The hon. and learned Lady makes a very important point. The legislation sets regulatory thresholds at the criminal law level based on existing offences in law. Many of the points she made are covered by existing public law offences, particularly in regards to discriminating against people based on their protected characteristics. As she well knows, the internet is a reserved matter, so the legal threshold is set at where UK law stands, but where law may differ in Scotland, the police authorities in Scotland can still take action against individuals in breach of the law.

[Joanna Cherry]

The difficulty is that Twitter claims it is not covered by the Equality Act 2010. I have seen legal correspondence to that effect. I am not talking about the criminal law here. I am talking about Twitter’s duty not to discriminate against women, for example, or those who hold gender critical beliefs in its moderation of content. That is the purpose of my amendment today—it would ensure that Twitter and other service providers providing a service in the United Kingdom abide by our domestic law. It is not really a reserved or devolved matter.

[Damian Collins]

The hon. and learned Lady is right. There are priority offences where the companies, regardless of their terms of service, have to meet their obligations. If something is illegal offline, it is illegal online as well. There are priority areas where the company must proactively look for that. There are also non-priority areas where the company should take action against anything that is an offence in law and meets the criminal threshold online. The job of the regulator is to hold them to account for that. They also have to be transparent in their terms of service as category 1 companies. If they have clear policies against discrimination, which they on the whole all do, they will have to set out what they would do, and the regulator can hold them to account to make sure they do what they say. The regulator cannot make them take down speech that is legal or below a criminal threshold, but they can hold them to account publicly for the decisions they make.

One of the most important aspects of this Bill with regard to the category 1 companies is transparency. At the moment, the platforms make decisions about curating their content—who to take down, who to suppress, who to leave up—but those are their decisions. There is no external scrutiny of what they do or even whether they do what they say they will do. As a point of basic consumer protection law, if companies say in their terms of service that they will do something, they should be held to account for it. What is put on the label also needs to be in the tin and that is what the Bill will do for the internet.

I now want to talk about journalism and the role of the news media in the online world, which is a very important part of this Bill. The Government are committed to defending the invaluable role of a free media. Online safety legislation must protect the vital role of the press in providing people with reliable and accurate sources of information. Companies must therefore put in place protections for journalistic content. User-to-user services will not have to apply their safety duties in part 3 of the Bill to news publishers’ content shared on their services. News publishers’ content on their own sites will also not be in scope of regulation.

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Let me now say a word about free speech. It has been widely misreported that the Bill mandates censorship of speech that is legal but harmful. As I said in my intervention on the Minister earlier, that is categorically untrue. While the large social media platforms will have to address such content as part of their terms and conditions, they are not compelled in the actions that they have to take in relation to it; they simply have to risk-assess it, adopt a policy—what that policy is will be up to them—and then apply that policy consistently. They are not obliged to take any action, and they are certainly not obliged to remove the content entirely. Lest there should be any doubt about that, Government amendment 71 to clause 13 makes it explicit that it is reasonable to take no action if the platform sees fit.

[Joanna Cherry]

I hear what the hon. Gentleman is saying, but he will have heard the speech made by his colleague, the right hon. Member for Haltemprice and Howden (Mr Davis). Does he not accept that it is correct to say that there is a risk of an increase in content moderation, and does he therefore see the force of my amendment, which we have previously discussed privately and which is intended to ensure that Twitter and other online service providers are subject to anti-discrimination law in the United Kingdom under the Equality Act 2010?

[Chris Philp]

I did of course hear what was said by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis). To be honest, I think that increased scrutiny of content which might constitute abuse of harassment, whether of women or of ethnic minorities, is to be warmly welcomed. The Bill provides that the risk assessors must pay attention to the characteristics of the user. There is no cross-reference to the Equality Act—I know the hon. and learned Lady has submitted a request on that, to which my successor Minister will now be responding—but there are references to characteristics in the provisions on safety duties, and those characteristics do of course include gender and race.

In relation to the risk that these duties are over-interpreted or over-applied, for the first time ever there is a duty for social media firms to have regard to freedom of speech. At present these firms are under no obligation to have regard to it, but clause 19(2) imposes such a duty, and anyone who is concerned about free speech should welcome that. Clauses 15 and 16 go further: clause 15 creates special protections for “content of democratic importance”, while clause 16 does the same for content of journalistic importance. So while I hugely respect and admire my right hon. Friend the Member for Haltemprice and Howden, I do not agree with his analysis in this instance.

I would now like to ask a question of my successor. He may wish to refer to it later or write to me, but if he feels like intervening, I will of course give way to him. I note that four Government amendments have been tabled; I suppose I may have authorised them at some point. Amendments 72, 73, 78 and 82 delete some words in various clauses, for example clauses 13 and 15. They remove the words that refer to treating content “consistently”. The explanatory note attached to amendment 72 acknowledges that, and includes a reference to new clause 14, which defines how providers should go about assessing illegal content, what constitutes illegal content, and how content is to be determined as being in one of the various categories.

As far as I can see, new clause 14 makes no reference to treating, for example, legal but harmful content “consistently”. According to my quick reading—without the benefit of highly capable advice—amendments 72, 73, 78 and 82 remove the obligation to treat content “consistently”, and it is not reintroduced in new clause 14. I may have misread that, or misunderstood it, but I should be grateful if, by way of an intervention, a later speech or a letter, my hon. Friend the Minister could give me some clarification.

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[Dame Margaret Hodge]

First, congratulations to the Under-Secretary of State for Digital, Culture, Media and Sport, the hon. Member for Folkestone and Hythe (Damian Collins). I think his is one of the very few appointments in these latest shenanigans that is based on expertise and ability. I really welcome him, and the work he has done on the Bill this week has been terrific. I also thank the hon. Member for Croydon South (Chris Philp). When he held the position, he was open to discussion and he accepted a lot of ideas from many of us across the House. As a result, I think we have a better Bill before us today than we would have had. My gratitude goes to him as well.

I support much of the Bill, and its aim of making the UK the safest place to be online is one that we all share. I support the systems-based approach and the role of Ofcom. I support holding the platforms to account and the importance of protecting children. I also welcome the cross-party work that we have done as Back Benchers, and the roles played by both Ministers and by the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright). I thank him for his openness and his willingness to talk to us. Important amendments have been agreed on fraudulent advertising, bringing forward direct liability so there is not a two-year wait, and epilepsy trolling—my hon. Friend the Member for Batley and Spen (Kim Leadbeater) promoted that amendment.

I also welcome the commitment to bring forward amendments in the Lords relating to the amendments tabled by the hon. Member for Brigg and Goole (Andrew Percy) and the right hon. and learned Member for Kenilworth and Southam—I think those amendments are on the amendment paper but it is difficult to tell. It is important that the onus on platforms to be subject to regulation should be based not on size and functionality but on risk of harm. I look forward to seeing those amendments when they come back from the other place. We all know that the smallest platforms can present the greatest risk. The killing of 51 people in the mosques in Christchurch, New Zealand is probably the most egregious example, as the individual concerned had been on 8chan before committing that crime.

I am speaking to amendments 156 and 157 in my name and in the names of other hon. and right hon. Members. These amendments would address the issue of anonymous abuse. I think we all accept that anonymity is hugely important, particularly to vulnerable groups such as victims of domestic violence, victims of child abuse and whistleblowers. We want to retain anonymity for a whole range of groups and, in framing these amendments, I was very conscious of our total commitment to doing so.

Equally, freedom of speech is very important, as the right hon. Member for Haltemprice and Howden (Mr Davis) said, but freedom of speech has never meant freedom to harm, which is not a right this House should promote. It is difficult to define, and it is difficult to get the parameters correct, but we should not think that freedom of speech is an absolute right without constraints.

[Joanna Cherry]

I agree with the right hon. Lady that freedom of speech is not absolute. As set out in article 10 of the European convention on human rights, there have to be checks and balances. Nevertheless, does she agree freedom of speech is an important right that this House should promote, with the checks and balances set out in article 10 of the ECHR?

[Dame Margaret Hodge]

Absolutely. I very much welcome the hon. and learned Lady’s amendment, which clarifies the parameters under which freedom of speech can be protected and promoted.

Equally, freedom of speech does not mean freedom from consequences. The police and other enforcement agencies can pursue unlawful abuse, assuming they have the resources, which we have not discussed this afternoon. I know the platforms have committed to providing the finance for such resources, but I still question whether the resources are there.

The problem with the Bill and the Government amendments, particularly Government amendment 70, is that they weaken the platforms’ duty on legal but harmful abuse. Such abuse is mainly anonymous and the abusers are clever. They do not break the law; they avoid the law with the language they use. It might be best if I give an example. People do not say, in an antisemitic way, “I am going to kill all Jews.” We will not necessarily find that online, but we might find, “I am going to harm all globalists.” That is legal but harmful and has the same intent. We should think about that, without being beguiled by the absolute right to freedom of speech that I am afraid the right hon. Member for Haltemprice and Howden is promoting, otherwise we will find that the Bill does not meet the purposes we all want.

Much of the abuse is anonymous. We do not know how much, but much of it is. When there was racist abuse at the Euros, Twitter claimed that 99% of postings of racist abuse were identifiable. Like the Minister, I wrote to Twitter to challenge that claim and found that Twitter was not willing to share its data with me, claiming GDPR constraints.

It is interesting that, in recent days, the papers have said that one reason Elon Musk has given for pulling out of his takeover is that he doubts Twitter’s claim that fake and spam accounts represent less than 5% of users. There is a lack of understanding and knowledge of the extent of anonymous abuse.

In the case I have shared with the Minister on other occasions, I received 90,000 posts in the two months from the publication of the Equality and Human Rights Commission report to the shenanigans about the position of the previous leader of the Labour party—from October to Christmas. The posts were monitored for me by the Community Security Trust. When I asked how many of the posts were anonymous, I was told that it had been unable to do that analysis. I wish there were the resources to do so, but I think most of the posts were anonymous and abusive.

There is certainly public support for trying to tackle abusive posts. A June 2021 YouGov poll found that 78% of the public are in favour of revealing the identity of those who post online, and we should bear that in mind. If people feel strongly about this, and the poll suggests that they do, we should respond and not put it to one side.

The Government have tried to tackle this with a compromise following the very good work by the hon. Member for Stroud (Siobhan Baillie). The Bill places a duty on the platforms to give users the option to verify their identity. If a user chooses to remain unverified, they may not be able to interact with verified accounts. Although I support the motives behind that amendment, I have concerns.

First, the platform itself would have to verify who holds the account, which gives the platforms unprecedented access to personal details. Following Cambridge Analytica, we know how such data can be abused. Data on 87 million identities was stolen, and we know it was used to influence the Trump election in 2016, and it may have been a factor in the Brexit referendum.

Secondly, the police have been very clear on how I should deal with anonymous online abuse. They say that the last thing I should do is remove it, as they need it to be able to judge whether there is a real threat within the abuse that they should take seriously. So individuals having that right does not diminish the real harm they could face if the online abuse is removed.

Thirdly, one of the problems with a lot of online abuse is not just that it is horrible or can be dangerous in particular circumstances, but that it prevents democracy. It inhibits freedom of speech by inhibiting engagement in free, democratic discourse. Online abuse is used to undermine an individual’s credibility. A lot of the abuse I receive seeks to undermine my credibility. It says that I am a bad woman, that I abuse children, that I break tax law and that I do this, that and the other. Building that picture of me as someone who cannot be believed undermines my ability to enter into legitimate democratic debate on issues I care about. Simply removing anonymous online abuse from my account does not stop the circulation of abusive, misleading content that undermines my democratic right to free speech. Therefore, in its own way, it undermines free speech.

Amendments 156 and 157, in my name and in the name of other colleagues, are based on a strong commitment to protecting anonymity, especially for vulnerable groups. We seek to tackle anonymous abuse not by denying anonymity but by ensuring traceability. It is quite simple. The Government recognise the feasibility and importance of that with age verification; they have now accepted the argument on age verification, and I urge them to take it further. Although I have heard that various groups are hostile to what we are suggesting, in a meeting I held last week with HOPE not hate there was agreement that what we are proposing made sense, and therefore we and the Government should pursue it.

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[Anna McMorrin (Cardiff North) (Lab)]

Not too long ago, the tech industry was widely looked up to and the internet was regarded as the way forward for democracy and freedoms. Today that is not the case. Every day we read headlines about data leaks, racist algorithms, online abuse, and social media platforms promoting, and becoming swamped in, misinformation, misogyny and hate. These problems are not simply the fault of those platforms and tech companies; they are the result of a failure to govern technology properly. That has resulted from years of muddled thinking and a failure to bring forward this Bill, and now, a failure to ensure that the Bill is robust enough.

Ministers have talked up the Bill, and I welcome the improvements that were made in Committee. Nevertheless, Ministers had over a decade in which to bring forward proposals, and in that time online crime exploded. Child sexual abuse online has become rife; the dark web provides a location for criminals to run rampant and scams are widespread.

Delay has also allowed disinformation to spread, including state-sponsored propaganda and disinformation, such as from Russia’s current regime. False claims and fake fact checks are going viral. That encourages other groups to adopt such tactics, in an attempt to undermine democracy, from covid deniers to climate change deniers—it is rampant.

Today I shall speak in support of new clause 3, to put violence against women and girls on the face of the Bill. As a female MP, I, along with my colleagues, have faced a torrent of abuse online, attacking me personally and professionally. I have been sent images such as that of a person with a noose around their neck, as well as numerous messages containing antisemitic and misogynistic abuse directed towards both me and my children. It is deeply disturbing, but also unsurprising, that one in five women across the country have been subjected to abuse; I would guess that that figure is actually much higher.

[Joanna Cherry]

I am really sorry to hear about the abuse that the hon. Lady and her family have received. Many women inside and without this Chamber, such as myself, receive terrible abuse on Twitter, including repeated threats to shoot us if we do not shut the f-u-c-k up. Twitter refuses to take down memes of a real human hand pointing a gun at me and other feminists and lesbians, telling us to shut the f-u-c-k up. Does she see the force of my amendment to ensure that Twitter apply its moderation policy evenly across society with regard to all protected characteristics, including sex?

[Anna McMorrin]

The hon. and learned Lady makes a very good point, and that illustrates what I am talking about in my speech—the abuse that women face online. We need this legislation to ensure that tech companies take action.

There is a very dark side to the internet, deeply rooted in misogyny. The End Violence Against Women organisation released statistics last year, stating that 85% of women who experienced online abuse from a partner or ex-partner also received abuse online. According to the latest Office for National Statistics figures, 92% of women who were killed in the year ending March 2021 were killed by men. Just yesterday, a woman was stabbed in the back by a male cyclist in east London, near to where Zara Aleena was murdered just two weeks ago. And in the year 2021, nearly 41,000 women were victims of sexual assault—and those were just the ones who reported it. We know that the actual figure was very much higher. That was the highest number of sexual offences ever recorded within a 12-month period. It is highly unlikely that any of those women will ever see their perpetrator brought to justice, because of the current 1.3% prosecution rate of rape cases. Need I continue?

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[Sir Jeremy Wright]

Yes, that is a possible way forward. Ofcom will need to produce a code of practice in this area. I am sure my hon. Friend on the Front Bench will say that that is a suitable way to deal with the problem that I have identified. It may well be, but at this stage, it is right for the House to recognise that the drafting of the Bill at the moment seeks to offer support to platforms, for which I am sure they will be grateful, but it will need to offer some more in order to allow these judgments to be made.

I restate the point that I have made in previous debates on this subject: there is little point in this House passing legislation aimed to make the internet a safer place if the legislation does not work as it is intended to. If our regime does not work, we will keep not a single person any safer. It is important, therefore, that we think about this Bill not in its overarching statements and principles but, particularly at this stage of consideration, in terms of how it will actually work.

You will not find a bigger supporter of the Bill in this House than me, Madam Deputy Speaker, but I want to see it work well and be effective. That means that some of the problems that I am highlighting must be addressed. Because humility is a good way to approach debates on something as ground-breaking and complex as this, I do not pretend that I have all the right answers. These amendments have been tabled because the Bill as it stands does not quite yet do the job that we want it to do. It is a good Bill—it needs to pass—but it can be better, and I very much hope that this process will improve it.

[Joanna Cherry]

I rise to speak to new clause 24 and amendments 193 and 191 tabled in my name. I also want to specifically give my support to new clause 6 and amendments 33 and 34 in the name of the right hon. Member for Kingston upon Hull North (Dame Diana Johnson).

The purpose of my amendments, as I have indicated in a number of interventions, is to ensure that, when moderating content, category 1 service providers such as Twitter abide by the anti-discrimination law of our domestic legal systems—that is to say the duties set out in the Equality Act 2010 not to discriminate against, harass or victimise their users on the grounds of a protected characteristic.

I quickly want to say a preliminary word about the Bill. Like all responsible MPs, I recognise the growing concern about online harms, and the need to protect service users, especially children, from harmful and illegal content online. That said, the House of Lords’ Communication and Digital Committee was correct to note that the internet is not currently the unregulated Wild West that some people say it is, and that civil and criminal law already applies to activities online as well as offline.

The duty of care, which the Bill seeks to impose on online services, will be a significant departure from existing legislation regulating online content. It will allow for a more preventative approach to regulating illegal online content and will form part of a unified regulatory framework applying to a wide range of online services. I welcome the benefits that this would represent, especially with respect to preventing the proliferation of child sexual and emotional abuse online.

Before I became an MP, I worked for a number of years as a specialist sex crimes prosecutor, so I am all too aware of how children are targeted online. Sadly, there are far too many people in our society, often hiding in plain sight, who seek to exploit children. I must emphasise that child safeguarding should be a No. 1 priority for any Government. In so far as this Bill does that, I applaud it. However, I do have some concerns that there is a significant risk that the Bill will lead to censorship of legal speech by online platforms. For the reasons that were set out by the right hon. Member for Haltemprice and Howden (Mr Davis), I am also a bit worried that it will give the Government unacceptable controls over what we can and cannot say online, so I am keen to support any amendments that would ameliorate those aspects of the Bill. I say this to those Members around the Chamber who might be looking puzzled: make no mistake, when the Bill gives greater power to online service providers to regulate content, there is a very real risk that they will be lobbied by certain groups to regulate what is actually legal free speech by other groups. That is partly what my amendment is designed to avoid.

[Sir Jeremy Wright]

What the hon. and learned Lady says is sensible, but does she accept—this is a point the Minister made earlier—that, at the moment, the platforms have almost unfettered control over what they take down and what they leave up? What this Bill does is present a framework for the balancing exercise that they ought to apply in making those decisions.

[Joanna Cherry]

That is why I am giving the Bill a cautious welcome, but I still stand by my very legitimate concerns about the chilling effect of aspects of this Bill. I will give some examples in a moment about the problems that have arisen when organisations such as Twitter are left to their own devices on their moderation of content policy.

As all hon. Members will be aware, under the Equality Act there are a number of protected characteristics. These include: age; gender reassignment; being married or in a civil partnership; being pregnant or on maternity leave; disability; race, including colour, nationality, ethnic or national origin; religion or belief; sex and sexual orientation. It is against the law to discriminate, victimise or harass anyone because of any of those protected characteristics, but Twitter does discriminate against some of the protected characteristics. It often discriminates against women in the way that I described in an intervention earlier. It takes down expressions of feminist belief, but refuses to take down expressions of the utmost violent intent against women. It also discriminates against women who hold gender-critical beliefs. I remind hon. Members that, in terms of the Employment Appeal Tribunal’s decision in the case of Maya Forstater, the belief that sex matters is worthy of respect in a democratic society and, under the Equality Act, people cannot lawfully discriminate against women, or indeed men, who hold those views.

Twitter also sometimes discriminates against lesbians, gay men and bisexual people who assert that their sexual orientation is on the basis of sex, not gender, despite the fact that same-sex orientation, such as I hold, is a protected characteristic under the Equality Act.

At present, Twitter claims not to be covered by the Equality Act. I have seen correspondence from its lawyers that sets out the purported basis for that claim, partly under reference to schedule 25 to the Equality Act, and partly because it says:

“Twitter UK is included in an Irish Company and is incorporated in the Republic of Ireland. It does pursue economic activity through a fixed establishment in the UK but that relates to income through sales and marketing with the main activity being routed through Ireland.”

I very much doubt whether that would stand up in court, since Twitter is clearly providing a service in the United Kingdom, but it would be good if we took the opportunity of this Bill to clarify that the Equality Act applies to Twitter, so that when it applies moderation of content under the Bill, it will not discriminate against any of the protected characteristics.

The Joint Committee on Human Rights, of which I am currently the acting Chair, looked at this three years ago. We had a Twitter executive before our Committee and I questioned her at length about some of the content that Twitter was content to support in relation to violent threats against women and girls and, on the other hand, some of the content that Twitter took down because it did not like the expression of certain beliefs by feminists or lesbians.

We discovered on the Joint Committee on Human Rights that Twitter’s hateful conduct policy does not include sex as a protected characteristic. It does not reflect the domestic law of the United Kingdom in relation to anti-discrimination law. Back in October 2019, in the Committee’s report on democracy, freedom of expression and freedom of association, we recommended that Twitter should include sex as a protected characteristic in its hateful conduct policy, but Twitter has not done that. It seems Twitter thinks it is above the domestic law of the United Kingdom when it comes to anti-discrimination.

At that Committee, the Twitter executive assured me that certain violent memes that often appear on Twitter directed against women such as me and against many feminists in the United Kingdom, threatening us with death by shooting, should be removed. However, just in the past 48 hours I have seen an example of Twitter’s refusing to remove that meme. Colleagues should be assured that there is a problem here, and I would like us to direct our minds to it, as the Bill gives us an opportunity to do.

Whether or not Twitter is correctly praying in aid the loophole it says there is in the Equality Act—I think that is questionable—the Bill gives us the perfect opportunity to clarify matters. Clause 3 of clearly brings Twitter and other online service providers within the regulatory scheme of the Bill as a service with

“a significant number of United Kingdom users”.

The Bill squarely recognises that Twitter provides a service in the United Kingdom to UK users, so it is only a very small step to amend the Bill to make it absolutely clear that when it does so it should be subject to the Equality Act. That is what my new clause 24 seeks to do.

I have also tabled new clauses 193 and 191 to ensure that Twitter and other online platforms obey non-discrimination law regarding Ofcom’s production of codes of practice and guidance. The purpose of those amendments is to ensure that Ofcom consults with persons who have expertise in the Equality Act before producing those codes of conduct.

I will not push the new clauses to a vote. I had a very productive meeting with the Minister’s predecessor, the hon. Member for Croydon South (Chris Philp), who expressed a great deal of sympathy when I explained the position to him. I have been encouraged by the cross-party support for the new clauses, both in discussions before today with Members from all parties and in some of the comments made by various hon. Members today.

I am really hoping that the Government will take my new clauses away and give them very serious consideration, that they will look at the Joint Committee’s report from October 2019 and that either they will adopt these amendments or perhaps somebody else will take them forward in the other place.

[Damian Collins]

I can assure the hon. and learned Lady that I am happy to carry on the dialogue that she had with my predecessor and meet her to discuss this at a further date.

[Joanna Cherry]

I am delighted to hear that. I must tell the Minister that I have had a huge number of approaches from women, from lesbians and from gay men across the United Kingdom who are suffering as a result of Twitter’s moderation policy. There is a lot of support for new clause 24.

Of course, it is important to remember that the Equality Act protects everyone. Gender reassignment is there with the protected characteristics of sex and sexual orientation. It is really not acceptable for a company such as Twitter, which provides a service in the United Kingdom, to seek to flout and ignore the provisions of our domestic law on anti-discrimination. I am grateful to the Minister for the interest he has shown and for his undertaking to meet me, and I will leave it at that for now.