Online Safety Bill (Ninth sitting)

John Nicolson Excerpts

Committee stage
Tuesday 14th June 2022 Public Bill Committees

[The Chair]

We are now sitting in public and the proceedings are being broadcast. Please switch electronic devices to silent. Tea and coffee are not allowed during sittings.

Clause 40

Secretary of State’s powers of direction

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

I beg to move amendment 84, in clause 40, page 38, line 5, leave out subsection (a).

This amendment would remove the ability of the Secretary of State to modify Ofcom codes of practice ‘for reasons of public policy’.

[The Chair]

With this it will be convenient to discuss the following:

Clause stand part.

Clause 41 stand part.

New clause 12—Secretary of State’s powers to suggest modifications to a code of practice—

“(1) The Secretary of State may on receipt of a code write within one month of that day to OFCOM with reasoned, evidence-based suggestions for modifying the code.

(2) OFCOM shall have due regard to the Secretary of State’s letter and must reply to the Secretary of State within one month of receipt.

(3) The Secretary of State may only write to OFCOM twice under this section for each code.

(4) The Secretary of State and OFCOM shall publish their letters as soon as reasonably possible after transmission, having made any reasonable redactions for public safety and national security.

(5) If the draft of a code of practice contains modifications made following changes arising from correspondence under this section, the affirmative procedure applies.”

This new clause gives the Secretary of State powers to suggest modifications to a code of practice, as opposed to the powers of direction proposed in clause 40.

[John Nicolson]

Amendment 84 is very simple: it removes one sentence—

“for reasons of public policy”.

Of all the correspondence that I have had on the Bill—there has been quite a lot—this is the clause that has most aggrieved the experts. A coalition of groups with a broad range of interests, including child safety, human rights, women and girls, sport and democracy, all agree that the Secretary of State is granted excessive powers in the Bill, and that it threatens the independence of the independent regulator. Businesses are also wary of this power, in part due to the uncertainty that it causes.

The reduction of Ministers’ powers under the Bill was advised by the Joint Committee on the draft Bill and by the Digital, Culture, Media and Sport Committee. I am sure that the two hon. Members on the Government Benches who sat on those Committees and added their names to their reports—the hon. Members for Watford and for Wolverhampton North East—will vote for the amendment. How could they possibly have put their names to the Select Committee report and the Joint Committee report and then just a few weeks later decide that they no longer support the very proposals that they had advanced?

Could the Minister inform us which special interest groups specifically have backed the Secretary of State’s public policy powers under the Bill? I am fascinated to know. Surely, all of us believe in public policy that is informed by expert evidence. If the Secretary of State cannot produce any experts at all who believe that the powers that she enjoys are appropriate or an advantage, or improve legislation, then we should not be proceeding in the way that we are. Now that I know that our proceedings are being broadcast live, I also renew my call to anyone watching who is in favour of these powers as they are to say so, because so far we have found no one who holds that position.

We should be clear about exactly what these powers do. Under clause 40, the Secretary of State can modify the draft codes of practice, thus allowing the Government a huge amount of power over the independent communications regulator. The Government have attempted to play down these powers by stating that they would be used only in exceptional circumstances. However, the legislation does not define what “exceptional circumstances” means, and it is far too nebulous a term for us to proceed under the current circumstances. Rather, a direction can reflect public policy. Will the Minister also clarify the difference between “public policy” and “government policy”, which was the wording in the draft Bill?

The regulator must not be politicised in this way. Regardless of the political complexion of the Government, when they have too much influence over what people can say online, the implications for freedom of speech are grave, especially when the content that they are regulating is not illegal. I ask the Minister to consider how he would feel if, rather than being a Conservative, the Culture Secretary came from among my friends on the Labour Benches. I would argue that that would be a significant improvement, but I imagine that the Minister would not. I see from his facial expression that that is the case.

There are ways to future-proof and enhance the transparency of Ofcom in the Bill that do not require the overreach of these powers. When we are allowing the Executive powers over the communications regulator, the protections must be absolute and iron-clad. As it stands, the Bill leaves leeway for abuse of these powers. No matter how slim a chance the Minister feels that there is of that, as parliamentarians we must not allow it. That is why I urge the Government to consider amendment 84.

As somebody who is new to these proceedings, I think it would be nice if, just for once, the Government listened to arguments and were prepared to accept them, rather than us going through this Gilbert and Sullivan pantomime where we advance arguments, we vote and we always lose. The Minister often says he agrees with us, but he still rejects whatever we say.

--- Later in debate ---

[Chris Philp]

I can provide my hon. Friend with that reassurance on the exceptional circumstances point. The Joint Committee report was delivered in December, approximately six months ago. It was a very long report—I think it had more than 100 recommendations. Of course, members of the Committee are perfectly entitled, in relation to one or two of those recommendations, to have further discussions, listen further and adjust their views if they individually see fit.

[John Nicolson]

rose—

[Chris Philp]

Let me just finish this point and then I will give way. The shadow SNP spokesman, the hon. Member for Ochil and South Perthshire, asked about the Government listening and responding, and we accepted 66 of the Joint Committee’s recommendations —a Committee that he served on. We made very important changes to do with commercial pornography, for example, and fraudulent advertising. We accepted 66 recommendations, so it is fair to say we have listened a lot during the passage of this Bill. On the amendments that have been moved in Committee, often we have agreed with the amendments but the Bill has already dealt with the matter. I wanted to respond to those two points before giving way.

--- Later in debate ---

[John Nicolson]

I am intrigued, as I am sure viewers will be. What is the new information that has come forward since December that has resulted in the Minister believing that he must stick with this? He has cited new information and new evidence, and I am dying to know what it is.

[Chris Philp]

I am afraid it was not me that cited new information. It was my hon. Friend the Member for Watford who said he had had further discussions with Ministers. I am delighted to hear that he found those discussions enlightening, as I am sure they—I want to say they always are, but let us say they often are.

--- Later in debate ---

[Kim Leadbeater]

I will not push the amendment to a vote, but it is important to continue this conversation, and I encourage the Minister to consider the matter as the Bill proceeds. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[John Nicolson]

I beg to move amendment 86, in clause 50, page 47, line 3, after “material” insert—

“or special interest news material”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 87, in clause 50, page 47, line 28, leave out the first “is” and insert—

“and special interest news material are”.

Amendment 88, in clause 50, page 47, line 42, at end insert—

““special interest news material” means material consisting of news or information about a particular pastime, hobby, trade, business, industry or profession.”

[John Nicolson]

In its current form, the Online Safety Bill states that platforms do not have any duties relating to content from recognised media outlets and new publishers, and the outlets’ websites are also exempt from the scope of the Bill. However, the way the Bill is drafted means that hundreds of independently regulated specialist publishers’ titles will be excluded from the protections afforded to recognised media outlets and news publishers. This will have a long-lasting and damaging effect on an indispensable element of the UK’s media ecosystem.

Specialist publishers provide unparalleled insights into areas that broader news management organisations will likely not analyse, and it would surely be foolish to dismiss and damage specialist publications in a world where disinformation is becoming ever more prevalent. The former Secretary of State, the right hon. Member for Maldon (Mr Whittingdale), also raised this issue on Second Reading, where he stated that specialist publishers

“deserve the same level of protection.”—[Official Report, 19 April 2022; Vol. 712, c. 109.]

Part of the rationale for having the news publishers exemption in the Bill is that it means that the press will not be double-regulated. Special interest material is already regulated, so it should benefit from the same exemptions.

[Chris Philp]

For the sake of clarity, and for the benefit of the Committee and those who are watching, could the hon. Gentleman say a bit more about what he means by specialist publications and perhaps give one or two examples to better illustrate his point?

[John Nicolson]

I would be delighted to do so. I am talking about specific and occasionally niche publications. Let us take an example. Gardeners’ World is not exactly a hotbed of online harm, and nor is it a purveyor of disinformation. It explains freely which weeds to pull up and which not to, without seeking to confuse people in any way. Under the Bill, however, such publications will be needlessly subjected to rules, creating a regulatory headache for the sector. This is a minor amendment that will help many businesses, and I would be interested to hear from the Minister why the Government will not listen to the industry on this issue.

[Chris Philp]

I thank the hon. Member for Ochil and South Perthshire for his amendment and his speech. I have a couple of points to make in reply. The first is that the exemption is about freedom of the press and freedom of speech. Clearly, that is most pertinent and relevant in the context of news, information and current affairs, which is the principal topic of the exemption. Were we to expand it to cover specialist magazines—he mentioned Gardeners’ World—I do not think that free speech would have the same currency when it comes to gardening as it would when people are discussing news, current affairs or public figures. The free speech argument that applies to newspapers, and to other people commenting on current affairs or public figures, does not apply in the same way to gardening and the like.

That brings me on to a second point. Only a few minutes ago, the hon. Member for Batley and Spen drew the Committee’s attention to the risks inherent in the clause that a bad actor could seek to exploit. It was reasonable of her to do so. Clearly, however, the more widely we draft the clause—if we include specialist publications such as Gardeners’ World, whose circulation will no doubt soar on the back of this debate—the greater the risk of bad actors exploiting the exemption.

My third point is about undue burdens being placed on publications. To the extent that such entities count as social media platforms—in-scope services—the most onerous duties under the Bill apply only to category 1 companies, or the very biggest firms such as Facebook and so on. The “legal but harmful” duties and many of the risk assessment duties would not apply to many organisations. In fact, I think I am right to say that if the only functionality on their websites is user comments, they would in any case be outside the scope of the Bill. I have to confess that I am not intimately familiar with the functionality of the Gardeners’ World website, but there is a good chance that if all it does is to provide the opportunity to post comments and similar things, it would be outside the scope of the Bill anyway, because it does not have the requisite functionality.

I understand the point made by the hon. Member for Ochil and South Perthshire, we will, respectfully, resist the amendment for the many reasons I have given.

[The Chair]

John, do you wish to press the amendment to a vote?

[John Nicolson]

No, I will let that particular weed die in the bed. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

[Alex Davies-Jones]

Briefly, as with earlier clauses, the Labour party recognises the challenge in finding the balance between freedom of expression and keeping people safe online. Our debate on the amendment has illustrated powerfully that the exemptions as they stand in the Bill are hugely flawed.

First, the exemption is open to abuse. Almost any organisation could develop a standards code and complaints process to define itself as a news publisher and benefit from the exemption. Under those rules, as outlined eloquently by my hon. Friend the Member for Batley and Spen, Russia Today already qualifies, and various extremist publishers could easily join it. Organisations will be able to spread seriously harmful content with impunity—I referred to many in my earlier contributions, and I have paid for that online.

Secondly, the exemption is unjustified, as we heard loud and clear during the oral evidence sessions. I recall that Kyle from FairVote made that point particularly clearly. There are already rigorous safeguards in the Bill to protect freedom of expression. The fact that content is posted by a news provider should not itself be sufficient reason to treat such content differently from that which is posted by private citizens.

Furthermore, quality publications with high standards stand to miss out on the exemption. The Minister must also see the lack of parity in the broadcast media space. In order for broadcast media to benefit from the exemption, they must be regulated by Ofcom, and yet there is no parallel stipulation for non-broadcast media to be regulated in order to benefit. How is that fair? For broadcast media, the requirement to be regulated by Ofcom is simple, but for non-broadcast media, the series of requirements are not rational, exclude many independent publishers and leave room for ambiguity.