Online Safety Bill (Tenth sitting)

John Nicolson Excerpts

Committee stage
Tuesday 14th June 2022 Public Bill Committees

[John Nicolson (Ochil and South Perthshire) (SNP)]

I beg to move amendment 142, in schedule 7, page 183, line 11, leave out from “under” to the end of line and insert

“any of the following provisions of the Suicide Act 1961—

(a) section 2;

(b) section 3A (inserted by section Communication offence for encouraging or assisting self-harm of this Act).”

[The Chair]

With this it will be convenient to discuss new clause 36—Communication offence for encouraging or assisting self-harm—

‘(1) In the Suicide Act 1961, after section 3 insert—

“3A Communication offence for encouraging or assisting self-harm

(1) A person (“A”) commits an offence if—

(a) A sends a message,

(b) the message encourages or could be used to assist another person (“B”) to inflict serious physical harm upon themselves, and

(c) A’s act was intended to encourage or assist the infliction of serious physical harm.

(2) The person referred to in subsection (1)(b) need not be a specific person (or class of persons) known to, or identified by, A.

(3) A may commit an offence under this section whether or not any person causes serious physical harm to themselves, or attempts to do so.

(4) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both;

(b) on indictment, to imprisonment for a term not exceeding 5 years, or a fine, or both.

(5) “Serious physical harm” means serious injury amounting to grievous bodily harm within the meaning of the Offences Against the Person Act 1861.

(6) No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.

(7) If A arranges for a person (“A2”) to do an Act and A2 does that Act, A is also to be treated as having done that Act for the purposes of subsection (1).

(8) In proceedings for an offence to which this section applies, it shall be a defence for A to prove that—

(a) B had expressed intention to inflict serious physical harm upon themselves prior to them receiving the message from A;

(b) B’s intention to inflict serious physical harm upon themselves was not initiated by A; and

(c) the message was wholly motivated by compassion towards B or to promote the interests of B’s health or wellbeing.”’

[John Nicolson]

New clause 36 seeks to criminalise the encouragement or assistance of a suicide. Before I move on to the details of the new clause, I would like to share the experience of a Samaritans supporter, who said:

“I know that every attempt my brother considered at ending his life, from his early 20s to when he died in April, aged 40, was based on extensive online research. It was all too easy for him to find step-by-step instructions so he could evaluate the effectiveness and potential impact of various approaches and, most recently, given that he had no medical background, it was purely his ability to work out the quantities of various drugs and likely impact of taking them in combination that equipped him to end his life.”

It is so easy when discussing the minutiae of the Bill to forget its real-world impact. I have worked with Samaritans on the new clause, and I use that quote with permission. It is the leading charity in trying to create a suicide-safer internet. It is axiomatic to say that suicide and self-harm have a devastating impact on people’s lives. The Bill must ensure that the online space does not aid the spreading of content that would promote this behaviour in any way.

There has rightly been much talk about how children are affected by self-harm content online. However, it should be stressed they do not exclusively suffer because of that content. Between 2011 and 2015, 151 patients who died by suicide were known to have visited websites that encouraged suicide or shared information about methods of harm, and 82% of those patients were aged over 25. It is likely that, as the Bill stands, suicide-promoting content will be covered in category 1 services, as it will be designated as harmful. Unless this amendment is passed, that content will not be covered on smaller sites, which is crucial. As Samaritans has identified, it is precisely in these smaller fora and websites that harm proliferates. The 151 patients who took their own life after visiting harmful websites may have been part of a handful of people using those sites, which would not fall under the definition of category 1, as I am sure the Minister will confirm.

[Kim Leadbeater (Batley and Spen) (Lab)]

The hon. Gentleman makes a very important point, which comes to the nub of a lot of the issues we face with the Bill: the issue of volume versus risk. Does he agree that one life lost to suicide is one life too many? We must do everything that we can in the Bill to prevent every single life being lost through suicide, which is the aim of his amendment.

[John Nicolson]

I do, of course, agree. As anyone who has suffered with someone in their family committing suicide knows, it has a lifelong family effect. It is yet another amendment where I feel we should depart from the pantomime of so much parliamentary procedure, where both sides fundamentally agree on things but Ministers go through the torturous process of trying to tell us that every single amendment that any outside body or any Opposition Member, whether from the SNP or the Labour party, comes up with has been considered by the ministerial team and is already incorporated or covered by the Bill. They would not be human if that were the case. Would it not be refreshing if there were a slight change in tactic, and just occasionally the Minister said, “Do you know what? That is a very good point. I think I will incorporate it into the Bill”?

None of us on the Opposition Benches seeks to make political capital out of any of the things we propose. All of us, on both sides of the House, are here with the best of intentions, to try to ensure that we get the best possible Bill. We all want to be able to vote for the Bill at the end of the day. Indeed, as I said, I have worked with two friends on the Conservative Benches—with the hon. Member for Watford on the Joint Committee on the draft Bill and with the hon. Member for Wolverhampton North East on the Select Committee on Digital, Culture, Media and Sport—and, as we know, they have both voted for various proposals. It is perhaps part of the frustration of the party system here that people are forced to go through the hoops and pretend that they do not really agree with things that they actually do agree with.

Let us try to move on with this, in a way that we have not done hitherto, and see if we can agree on amendments. We will withdraw amendments if we are genuinely convinced that they have already been considered by the Government. On the Government side, let them try to accept some of our amendments—just begin to accept some—if, as with this one, they think they have some merit.

I was talking about Samaritans, and exactly what it wants to do with the Bill. It is concerned about harmful content after the Bill is passed. This feeds into potentially the most important aspect of the Bill: it does not mandate risk assessments based exclusively on risk. By adding in the qualifications of size and scope, the Bill wilfully lets some of the most harmful content slip through its fingers—wilfully, but I am sure not deliberately. Categorisation will be covered by a later amendment, tabled by my hon. Friend the Member for Aberdeen North, so I shall not dwell on it now.

In July 2021, the Law Commission for England and Wales recommended the creation of a new narrow offence of the “encouragement or assistance” of serious self-harm with “malicious intent”. The commission identified that there is

“currently no offence that adequately addresses the encouragement of serious self-harm.”

The recommendation followed acknowledgement that

“self-harm content online is a worrying phenomenon”

and should have a

“robust fault element that targets deliberate encouragement of serious self-harm”.

Currently, there are no provisions of the Bill to create a new offence of assisting or encouraging self- harm.

In conclusion, I urge the Minister to listen not just to us but to the expert charities, including Samaritans, to help people who have lived experience of self-harm and suicide who are calling for regulation of these dangerous sites.

[Alex Davies-Jones (Pontypridd) (Lab)]

Good afternoon, Sir Roger; it is a pleasure, as ever, to serve under your chairship. I rise to speak to new clause 36, which has been grouped with amendment 142 and is tabled in the names of the hon. Members for Ochil and South Perthshire and for Aberdeen North.

I, too, pay tribute to Samaritans for all the work it has done in supporting the Bill and these amendments to it. As colleagues will be aware, new clause 36 follows a recommendation from the Law Commission dating back to July 2021. The commission recommended the creation of a new, narrow offence of the “encouragement or assistance” of serious self-harm with “malicious intent”. It identified that there is

“currently no offence that adequately addresses the encouragement of serious self-harm.”

The recommendation followed acknowledgement that

“self-harm content online is a worrying phenomenon”

and should have a

“robust fault element that targets deliberate encouragement of serious self-harm”.

Currently, there are no provisions in the Bill to create a new offence of assisting or encouraging self-harm, despite the fact that other recommendations from the Law Commission report have been brought into the Bill, such as creating a new offence of cyber-flashing and prioritising tackling illegal suicide content.

We all know that harmful suicide and self-harm content is material that has the potential to cause or exacerbate self-harm and suicidal behaviours. Content relating to suicide and self-harm falls into both categories in the Bill—illegal content and legal but harmful content. Encouraging or assisting suicide is also currently a criminal offence in England and Wales under the Suicide Act 1961, as amended by the Coroners and Justice Act 2009.

Content encouraging or assisting someone to take their own life is illegal and has been included as priority illegal content in the Bill, meaning that platforms will be required to proactively and reactively prevent individuals from encountering it, and search engines will need to structure their services to minimise the risk to individuals encountering the content. Other content, including content that positions suicide as a suitable way of overcoming adversity or describes suicidal methods, is legal but harmful.

The Labour party’s Front-Bench team recognises that not all content falls neatly into the legal but harmful category. What can be helpful for one user can be extremely distressing to others. Someone may find it extremely helpful to share their personal experience of suicide, for example, and that may also be helpful to other users. However, the same material could heighten suicidal feelings and levels of distress in someone else. We recognise the complexities of the Bill and the difficulties in developing a way around this, but we should delineate harmful and helpful content relating to suicide and self-harm, and that should not detract from tackling legal but clearly harmful content.

In its current form, the Bill will continue to allow legal but clearly harmful suicide and self-harm content to be accessed by over-18s. Category 1 platforms, which have the highest reach and functionality, will be required to carry out risk assessments of, and set out in their terms and conditions their approach to, legal but harmful content in relation to over-18s. As the hon. Member for Ochil and South Perthshire outlined, however, the Bill’s impact assessment states that “less than 0.001%” of in-scope platforms

“are estimated to meet the Category 1 and 2A thresholds”,

and estimates that only 20 platforms will be required to fulfil category 1 obligations. There is no requirement on the smaller platforms, including those that actively encourage suicide, to do anything at all to protect over-18s. That simply is not good enough. That is why the Labour party supports new clause 36, and we urge the Minister to do the right thing by joining us.

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[Chris Philp]

I am grateful for the element of gender balance that the hon. Member has introduced, and she is right to highlight the suicide risk. Inciting suicide is already a criminal offence under section 2 of the Suicide Act 1961 and we have named it a priority offence. Indeed, it is the first priority offence listed under schedule 7—it appears a third of the way down page 183—for exactly the reason she cited, and a proactive duty is imposed on companies by paragraph 1 of schedule 7.

On amendment 142 and the attendant new clause 36, the Government agree with the sentiment behind them—namely, the creation of a new offence of encouraging or assisting serious self-harm. We agree with the substance of the proposal from the hon. Member for Ochil and South Perthshire. As he acknowledged, the matter is under final consideration by the Law Commission and our colleagues in the Ministry of Justice. The offence initially proposed by the Law Commission was wider in scope than that proposed under new clause 36. The commission’s proposed offence covered the offline world, as well as the online one. For example, the new clause as drafted would not cover assisting a person to self-harm by providing them with a bladed article because that is not an online communication. The offence that the Law Commission is looking at is broader in scope.

The Government have agreed in principle to create an offence based on the Law Commission recommendation in separate legislation, and once that is done the scope of the new offence will be wider than that proposed in the new clause. Rather than adding the new clause and the proposed limited new offence to this Bill, I ask that we implement the offence recommended by the Law Commission, the wider scope of which covers the offline world as well as the online world, in separate legislation. I would be happy to make representations to my colleagues in Government, particularly in the MOJ, to seek clarification about the relevant timing, because it is reasonable to expect it to be implemented sooner rather than later. Rather than rushing to introduce that offence with limited scope under the Bill, I ask that we do it properly as per the Law Commission recommendation.

Once the Law Commission recommendation is enacted in separate legislation, to which the Government have already agreed in principle, it will immediately flow through automatically to be incorporated into clause 52(4)(d), which relates to illegal content, and under clause 176, the Secretary of State may, subject to parliamentary approval, designate the new offence as a priority offence under schedule 7 via a statutory instrument. The purpose of amendment 142 can therefore be achieved through a SI.

The Government publicly entirely agree with the intention behind the proposed new clause 36, but I think the way to do this is to implement the full Law Commission offence as soon as we can and then, if appropriate, add it to schedule 7 by SI. The Government agree with the spirit of the hon. Gentleman’s proposal, but I believe that the Government already have a plan to do a more complete job to create the new offence.

[John Nicolson]

I have nothing to add and, having consulted my hon. Friend the Member for Aberdeen North, on the basis of the Minister’s assurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Chris Philp]

I beg to move amendment 116, in schedule 7, page 183, line 11, at end insert—

“1A An offence under section 13 of the Criminal Justice Act (Northern Ireland) 1966 (c. 20 (N.I.)) (assisting suicide etc).”

This amendment adds the specified offence to Schedule 7, with the effect that content amounting to that offence counts as priority illegal content.

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Division 26

Ayes: 5

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Labour: 3
Scottish National Party: 2

Noes: 9

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Conservative: 9

[John Nicolson]

I beg to move amendment 90, in schedule 7, page 185, line 39, at end insert—

“Human trafficking

22A An offence under section 2 of the Modern Slavery Act 2015.”

This amendment would designate human trafficking as a priority offence.

Our amendment seeks to deal explicitly with what Meta and other companies refer to as “domestic servitude”, which we know better as human trafficking. This abhorrent practice has sadly been part of our society for hundreds if not thousands of years, and today, human traffickers are aided by various apps and platforms. The same platforms that connect us with old friends and family across the globe have been hijacked by the very worst people in our world, who are using them to create networks of criminal enterprise, none more cruel than human trafficking.

Investigations by the BBC and The Wall Street Journal have uncovered how traffickers use Instagram, Facebook and WhatsApp to advertise, sell, and co-ordinate the trafficking of young women. One would think that this issue would be of the utmost importance to Meta—Facebook, as it was at the time—yet, as the BBC reported,

“the social media giant only took ‘limited action’ until ‘Apple Inc. threatened to remove Facebook’s products from the App Store, unless it cracked down on the practice’.”

Those of us who have sat on the DCMS Committee and the Joint Committee on the draft Bill—I and my friends across the aisle, the hon. Members for Wolverhampton North East and for Watford—know exactly what it is like to have Facebook’s high heid yins before you. They will do absolutely nothing to respond to legitimate pressure. They understand only one thing: the force of law and of financial penalty. Only when its profits were in danger did Meta take the issue seriously.

The omission of human trafficking from schedule 7 is especially worrying because if it is not directly addressed as priority illegal content, we can be certain that it will not be prioritised by the platforms. We know that from their previous behaviour.

[Kirsty Blackman]

Can my hon. Friend see any reason—I am baffled by this—why the Government would leave out human trafficking? Can he imagine any justification that the Minister could possibly have for suggesting that it is not a priority offence, given the Conservative party’s stated aims and, to be fair, previous action in respect of, for example, the Modern Slavery Act 2015?

[John Nicolson]

It is an interesting question. Alas, I long ago stopped trying to put myself into the minds of Conservative Ministers—a scary place for any of us to be.

We understand that it is difficult to try to regulate in respect of human trafficking on platforms. It requires work across borders and platforms, with moderators speaking different languages. We established that Facebook does not have moderators who speak different languages. On the Joint Committee on the draft Bill, we discovered that Facebook does not moderate content in English to any adequate degree. Just look at the other languages around the world—do we think Facebook has moderators who work in Turkish, Finnish, Swedish, Icelandic or a plethora of other languages? It certainly does not. The only language that Facebook tries to moderate—deeply inadequately, as we know—is English. We know how bad the moderation is in English, so can the Committee imagine what it is like in some of the world’s other languages? The most terrifying things are allowed to happen without moderation.

Regulating in respect of human trafficking on platforms is not cheap or easy, but it is utterly essential. The social media companies make enormous amounts of money, so let us shed no tears for them and the costs that will be entailed. If human trafficking is not designated a priority harm, I fear it will fall by the wayside, so I must ask the Minister: is human trafficking covered by another provision on priority illegal content? Like my hon. Friend the Member for Aberdeen North, I cannot see where in the Bill that lies. If the answer is yes, why are the human rights groups not satisfied with the explanation? What reassurance can the Minister give to the experts in the field? Why not add a direct reference to the Modern Slavery Act, as in the amendment?

If the answer to my question is no, I imagine the Minister will inform us that the Bill requires platforms to consider all illegal content. In what world is human trafficking that is facilitated online not a priority? Platforms must be forced to be proactive on this issue; if not, I fear that human trafficking, like so much that is non-priority illegal content, will not receive the attention it deserves.

[Alex Davies-Jones]

Schedule 7 sets out the list of criminal content that in-scope firms will be required to remove as a priority. Labour was pleased to see new additions to the most recent iteration, including criminal content relating to online drug and weapons dealing, people smuggling, revenge porn, fraud, promoting suicide and inciting or controlling prostitution for gain. The Government’s consultation response suggests that the systems and processes that services may use to minimise illegal or harmful content could include user tools, content moderation and recommendation procedures.

More widely, although we appreciate that the establishment of priority offences online is the route the Government have chosen to go down with the Bill, we believe the Bill remains weak in relation to addressing harms to adults and wider societal harms. Sadly, the Bill remains weak in its approach and has seemingly missed a number of known harms to both adults and children that we feel are a serious omission. Three years on from the White Paper, the Government know where the gaps are, yet they have failed to address them. That is why we are pleased to support the amendment tabled by the hon. Members for Ochil and South Perthshire and for Aberdeen North.

Human trafficking offences are a serious omission from schedule 7 that must urgently be rectified. As we all know from whistleblower Frances Haugen’s revelations, Facebook stands accused, among the vast array of social problems, of profiting from the trade and sale of human beings—often for domestic servitude—by human traffickers. We also know that, according to internal documents, the company has been aware of the problems since at least 2018. As the hon. Member for Ochil and South Perthshire said, we know that a year later, on the heels of a BBC report that documented the practice, the problem was said to be so severe that Apple itself threatened to pull Facebook and Instagram from its app store. It was only then that Facebook rushed to remove content related to human trafficking and made emergency internal policy changes to avoid commercial consequences described as “potentially severe” by the company. However, an internal company report detailed that the company did not take action prior to public disclosure and threats from Apple—profit over people.

In a complaint to the US Securities and Exchange Commission first reported by The Wall Street Journal, whistleblower Haugen wrote:

“Investors would have been very interested to learn the truth about Facebook almost losing access to the Apple App Store because of its failure to stop human trafficking on its products.”

I cannot believe that the Government have failed to commit to doing more to tackle such abhorrent practices, which are happening every day. I therefore urge the Minister to do the right thing and support amendment 90.

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[Chris Philp]

I am happy to give that further consideration, but please do not interpret that as a firm commitment. I repeat that the Modern Slavery Act is brought into the scope of this Bill via clause 52(4)(d).

[John Nicolson]

I have nothing further to add. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 7, as amended, agreed to.

Clause 53

“Content that is harmful to children” etc

[The Chair]

I have had no indication that anybody wishes to move Carla Lockhart’s amendment 98—she is not a member of the Committee.

Question proposed, That the clause stand part of the Bill.

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[Chris Philp]

The hon. Member is asking me a somewhat technical question, and I hesitate to answer without taking full advice, but I think the answer is yes. The reason that loot boxes are not considered gambling in our view is that they do not have a monetary value, so the exclusion in clause 53(5)(b)(i) does not apply. On a quick off-the-cuff reading, it does not strike me immediately that the exclusions in (5)(b)(ii) or (iii) would apply to loot boxes either, so I believe—and officials who know more about this than I do are nodding—that the hon. Lady is right to say that it would be possible for loot boxes to become primary priority content or priority content by way of a statutory instrument. Yes, my belief is that that would be possible.

Question put and agreed to.

Clause 53 accordingly ordered to stand part of the Bill.

Clause 54

“Content that is harmful to children” etc

[John Nicolson]

I beg to move amendment 83, in clause 54, page 50, line 39, at end insert—

“(2A) Priority content designated under subsection (2) must include content that contains health-related misinformation and disinformation, where such content is harmful to adults.”

This amendment would amend Clause 54 so that the Secretary of State’s designation of “priority content that is harmful to adults” must include a description of harmful health related misinformation or disinformation (as well as other priority content that might be designated in regulations by the Secretary of State).

The Bill requires category 1 service providers to set out how they will tackle harmful content on their platforms. In order for this to work, certain legal but harmful content must be designated in secondary legislation as

“priority content that is harmful to adults.”

As yet, however, it is not known what will be designated as priority content or when. There have been indications from Government that health-related misinformation and disinformation will likely be included, but there is no certainty. The amendment would ensure that harmful health-related misinformation and disinformation would be designated as priority content that is harmful to adults.

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[Chris Philp]

I am grateful to the shadow Minister for confirming her support for free speech. Perhaps I could take this opportunity to apologise to you, Sir Roger, and to Hansard for turning round. I will try to behave better in future.

[John Nicolson]

I find myself not entirely reassured, so I think we should press the amendment to a vote.

Question put, That the amendment be made.