Online Safety Bill

Julian Knight Excerpts

Report stage
Tuesday 12th July 2022 Commons Chamber

[Chris Philp]

I am grateful to my hon. Friend for his comments. I merely observe that the “consistency” requirements were written into the Bill, and, as far as I can see, are not there now. Perhaps we could discuss it further in correspondence.

Let me turn briefly to clause 40 and the various amendments to it—amendments 44, 45, 13, 46 and others—and the remarks made by the shadow Minister, the hon. Member for Pontypridd (Alex Davies-Jones), about the Secretary of State’s powers. I intervened on the hon. Lady earlier on this subject. It also arose in Committee, when she and many others made important points on whether the powers in clause 40 went too far and whether they impinged reasonably on the independence of the regulator, in this case Ofcom. I welcome the commitments made in the written ministerial statement laid last Thursday—coincidentally shortly after my departure—that there will be amendments in the Lords to circumscribe the circumstances in which the Secretary of State can exercise those powers to exceptional circumstances. I heard the point made by the hon. Member for Ochil and South Perthshire that it was unclear what “exceptional” meant. The term has a relatively well defined meaning in law, but the commitment in the WMS goes further and says that the bases upon which the power can be exercised will be specified and limited to certain matters such as public health or matters concerning international relations. That will severely limit the circumstances in which those powers can be used, and I think it would be unreasonable to expect Ofcom, as a telecommunications regulator, to have expertise in those other areas that I have just mentioned. I think that the narrowing is reasonable, for the reasons that I have set out.

[Julian Knight (Solihull) (Con)]

Those areas are still incredibly broad and open to interpretation. Would it not be easier just to remove the Secretary of State from the process and allow this place to take directly from Ofcom the code of standards that we are talking about so that it can be debated fully in the House?

[Chris Philp]

I understand my hon. Friend’s point. Through his work as the Chairman of the Select Committee he has done fantastic work in scrutinising the Bill. There might be circumstances where one needed to move quickly, which would make the parliamentary intervention he describes a little more difficult, but he makes his point well.

[Julian Knight]

So why not quicken up the process by taking the Secretary of State out of it? We will still have to go through the parliamentary process regardless.

[Chris Philp]

The Government are often in possession of information—for example, security information relating to the UK intelligence community—that Ofcom, as the proposer of a code or a revised code, may not be in possession of. So the ability of the Secretary of State to propose amendments in those narrow fields, based on information that only the Government have access to, is not wholly unreasonable. My hon. Friend will obviously comment further on this in his speech, and no doubt the other place will give anxious scrutiny to the question as well.

I welcome the architecture in new clause 14 in so far as it relates to the definition of illegal content; that is a helpful clarification. I would also like to draw the House’s attention to amendment 16 to clause 9, which makes it clear that acts that are concerned with the commission of a criminal offence or the facilitation of a criminal offence will also trigger the definitions. That is a very welcome widening.

I do not want to try the House’s patience by making too long a speech, given how much the House has heard from me already on this topic, but there are two areas where, as far as I can see, there are no amendments down but which others who scrutinise this later, particularly in the other place, might want to consider. These are areas that I was minded to look at a bit more over the summer. No doubt it will be a relief to some people that I will not be around to do so. The first of the two areas that might bear more thought is clause 137, which talks about giving academic researchers access to social media platforms. I was struck by Frances Haugen’s evidence on this. The current approach in the Bill is for Ofcom to do a report that will takes two years, and I wonder if there could be a way of speeding that up slightly.

The second area concerns the operation of algorithms promoting harmful content. There is of course a duty to consider how that operates, but when it comes algorithms promoting harmful content, I wonder whether we could be a bit firmer in the way we treat that. I do not think that would restrain free speech, because the right of free speech is the right to say something; it is not the right to have an algorithm automatically promoting it. Again, Frances Haugen had some interesting comments on that.

--- Later in debate ---

Madam Deputy Speaker, may I also say something very briefly about new clause 14. This is the Government’s additional new clause, which is designed to assist platforms in understanding some of the judgments that they have to make and how to make them, particularly in relation to illegal content. When people first look at this Bill, they will assume that everyone knows what illegal content is and therefore it should be easy to identify and take it down, or take the appropriate action to avoid its promotion. But, as new clause 14 makes clear, what the platform has to do is not just identify content but have reasonable grounds to infer that all elements of an offence, including the mental elements, are present or satisfied, and, indeed, that the platform does not have reasonable grounds to infer that the defence to the offence may be successfully relied upon. That is right, of course, because criminal offences very often are not committed just by the fact of a piece of content; they may also require an intent, or a particular mental state, and they may require that the individual accused of that offence does not have a proper defence to it. The question of course is how on earth a platform is supposed to know either of those two things in each case. This is helpful guidance, but the Government will have to think carefully about what further guidance they will need to give—or Ofcom will need to give—in order to help a platform to make those very difficult judgments.

[Julian Knight]

Although this is not contained within these measures, it is pertaining to them. Does my right hon. and learned Friend agree that, down the line, Ofcom will want to look at a regime of compliance officers in order to give the guidance that he seeks?

[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.

--- Later in debate ---

[Julian Knight]

We live in the strangest of times, and the evidence of that is that my hon. Friend the Member for Folkestone and Hythe (Damian Collins), who has knowledge second to none in this area, has ended up in charge of it. I have rarely seen such an occurrence. I hope he is able to have a long and happy tenure and that the blob does not discover that he knows what he is doing.

I backed the Bill on Second Reading and I will continue to back it. I support most of the content within it and, before I move on to speak to the amendments I have tabled, I want to thank the Government for listening to the recommendations of the Digital, Culture, Media and Sport Committee, which I chair. The Government have accepted eight of the Committee’s key recommendations, demonstrating that the Committee is best placed to provide Parliamentary scrutiny of DCMS Bills as they pass through this House and after they are enacted.

I also pay tribute to the work of the Joint Committee on the draft Bill, which my hon. Friend the Member for Folkestone and Hythe chaired, and the Public Bill Committee, which has improved this piece of legislation during its consideration. The Government have rightfully listened to the Select Committee’s established view that it would be inappropriate to establish a permanent joint committee on digital regulation. I also welcome the news that the Government are set to bring forward amendments in the House of Lords to legislate for a new criminal offence for epilepsy trolling, which was recommended by both the Joint Committee and the Select Committee.

That said, the Digital, Culture, Media and Sport Committee continues to have concerns around some aspects of the Bill, particularly the lack of provision for funding digital literacy, a key area where we are falling behind in and need to make some progress. However, my primary concern and that of my colleagues on the Committee relates to the powers within this Bill that would, in effect, give the Secretary of State the opportunity to interfere with Ofcom’s role in the issuing of codes of practice to service providers.

It is for that reason that I speak to amendments 44 to 46 standing in my name on the amendment paper. Clause 40, in my view, gives the Secretary of State unprecedented powers and would bring into question the future integrity of Ofcom itself. Removing the ability to exercise those powers in clause 39 would mean we could lose clauses 40 and 41, which outline the powers granted and how they would be sent to the House for consideration.

Presently, Ofcom sets out codes of practice under which,

“companies can compete fairly, and businesses and customers benefit from the choice of a broad range of services”.

Under this Bill Ofcom, which, I remind the House, is an independent media regulator, will be required to issue codes of practice to service providers, for example codes outlining measures that would enable services to comply with duties to mitigate the presence of harmful content.

Currently, codes of practice from Ofcom are presented to the House for consideration “as soon as practicable”, something I support. My concern is the powers given in this Bill that allow the Secretary of State to reject the draft codes of practice and to send them back to Ofcom before this House knows the recommendations exist, let alone having a chance to consider or debate them.

I listened with interest to my hon. Friend the Member for Croydon South (Chris Philp), who is not in his place but who was a very fine Minister during his time in the Department. To answer his query on the written ministerial statement and the letter written to my Committee on this matter, I say to him and to those on the Front Bench that if the Government disagree with what Ofcom is saying, they can bring the matter to the House and explain that disagreement. That would allow things to be entirely transparent and open, allow greater scrutiny rather than less, and allow for less delay than would be the case if there is forever that ping-pong between the Secretary of State and Ofcom until it gets its work right.

I want to make it clear that the DCMS Committee and I believe that this is nothing more than a power grab by the Executive. I am proud that in western Europe we have a free press without any interference from Government, and I believe that the Bill, if constituted in this particular form, has the potential to damage that relationship—I say potential, because I do not believe that is the intention of what is being proposed here, but there is the potential for the Bill to jeopardise that relationship in the long term. That is why I hope that Members will consider supporting my amendments, and I will outline why they should do so.

As William Perrin, a trustee of the Carnegie Trust UK, made clear in evidence to my Committee,

“the underpinning convention of regulation of media in Western Europe is that there is an independent regulator and the Executive does not interfere in their day to day decision-making for very good reason.” Likewise, Dr Edina Harbinja, a senior lecturer at Aston University, raised concerns that the Bill made her

“fear that Ofcom’s independence may be compromised”

and that

“similar powers are creeping into other law reform pieces and proposals, such as…data protection”.

My amendments seek to cut red tape, bureaucracy and endless recurring loops that in some cases may result in significant delays in Ofcom managing to get some codes of practice approved. The amendments will allow the codes to come directly to this House for consideration by Members without another level of direct interference from the Secretary of State. Let me make it very clear that this is not a comment on any Secretary of State, at any time in the past, but in some of these cases I expect that Ofcom will require a speedy turnaround to get these codes of practices approved—for instance, measures that it wishes to bring forward to better safeguard children online. In addition, the Secretary of State has continually made it clear in our Select Committee hearings that she is a great supporter of more parliamentary scrutiny. I therefore hope that the Government will support my amendment so that we do not end up in a position where future Secretaries of State could potentially prevent draft codes coming before the House due to endless delays and recurring loops.

I also want to make it abundantly clear that my amendment does not seek to prevent the Secretary of State from having any involvement in the formulation of new codes of practice from Ofcom. Indeed, as Ofcom has rightly pointed out, the Secretary of State is already a statutory consultee when Ofcom wishes to draft new codes of practice or amend those that already exist. She can also, every three years, set out guidelines that Ofcom would have to follow when creating such codes of practice. The Government therefore already play a crucial role in influencing the genesis and the direction of travel in this area.

On Friday the Secretary of State wrote to my office outlining some of the concerns shared by Members of this House and providing steps on how her Department would address those concerns. In her letter, she recognises that the unprecedented powers awarded to the Secretary of State are of great concern to Members and goes on to state that

“regulatory independence is vital to the success of the framework”.

I have been informed that in order to appease some of these concerned Members, the Government intend to bring forward amendments around the definitions of “exceptional circumstances” and “public policy”, as referenced earlier. These definitions, including “economic policy” and “business interests”, are so broad that I cannot think of anything that would not be covered by these exceptional circumstances.

If the Secretary of State accepts our legitimate concerns, surely Ministers should accept my amendments becoming part of the Bill today, leaving a cleaner process rather than an increasingly complex system of unscrutinised ministerial interference with the regulator. The DCMS Committee and I are very clear that clause 40 represents a power grab by the Government that potentially threatens the independence of Ofcom, which is a fundamental principle of ensuring freedom of speech and what should be a key component of this legislation. The Government must maintain their approach to ensuring independent, effective, and trustworthy regulation.

I will not press my amendments to a vote, but I hope my concerns will spark not just thoughts and further engagement from Ministers but legislative action in another place as the Bill progresses, because I really do think that this could hole the Bill under the waterline and has the potential for real harm to our democratic way of life going forward as we tackle this whole new area.

[Mr Kevan Jones (North Durham) (Lab)]

I rise to speak to my new clause 8, which would place a duty on all internet site providers regulated by this Bill to prevent individuals from encountering adverts for cosmetic procedures that do not contain disclaimers as to health risks of the procedure or include certified service quality indicators.

I have been campaigning for a number of years for better regulation of the non-surgical and cosmetic surgery industry, which is frankly a wild west in terms of lack of regulation, only made worse by the internet. I pay tribute to my constituent Dawn Knight, who has been a fierce campaigner in this area. We are slowly making progress. I thank the former Health Minister, the hon. Member for Charnwood (Edward Argar), for his work in bringing amendments on licensing to the Bill that became the Health and Care Act 2022. That is now out for consultation. It is a first, welcome step in legislation to tame the wild west that is the cosmetic surgery sector. My amendment would enhance and run parallel to that piece of legislation.

Back in 2013, Sir Bruce Keogh first raised the issue of advertising in his recommendations on regulation of the cosmetic surgery industry, saying that cosmetic and aesthetic procedures adverts should be provided with a disclaimer or kitemark in a manner similar to that around alcohol or gambling regulation. Years ago, adverts were in newspapers and magazines. Now, increasingly, the sector’s main source of advertising revenue is the internet.

People will say, “Why does this matter?” Well, it links to some of the other things that have been raised in this debate. The first is safety. We do not have any data, for which I have been calling for a while, on how many surgical and non-surgical aesthetic procedures in the UK go wrong, but I know who picks up the tab for it—it is us as taxpayers as the NHS has to put a lot of those procedures right. The horrendous cases that I have seen over the years provide just cause for why people need to be in full control of the facts before they undertake these procedures.

This is a boom industry. It is one where decisions on whether to go ahead with a procedure are not usually made with full information on the potential risks. It is sold, certainly online, as something similar to buying any other service. As we all know, any medical procedure has health risks connected to it, and people should be made aware of them in the adverts that are now online. I have tried writing to Facebook and others to warn them about some of the more spurious claims that some of the providers are making, but have never got a reply from Facebook. This is about patient safety. My amendment would ensure that these adverts at least raise in people’s minds the fact that there is a health risk to these procedures.

Again, people will say, “Why does this matter?” Well, the target for this sector is young people. As I said, a few years ago these adverts were in newspapers and magazines; now they are on Facebook, Twitter, Instagram and so on, and we know what they are selling: they are bombarding young people with the perfect body image.

We only have to look at the Mental Health Foundation’s report on this subject to see the effect the industry is having on young people, with 37% feeling upset and 31% feeling ashamed of their own body image. That is causing anxiety and mental health problems, but it is also forcing some people to go down the route of cosmetic surgery—both surgical and non-surgical—when there is nothing wrong with their body. It is the images, often photoshopped and sadly promoted by certain celebrities, that force them down that route.

Someone has asked me before, “Do you want to close down the cosmetic surgery industry?” I am clear that I do not; what I want is for anyone going forward for these procedures to be in full control of the facts. Personally, if I had a blank sheet of paper, I would say that people should have mental health assessments before they undertake these procedures. If we had a kitemark on adverts, as Sir Bruce Keogh recommended, or something that actually said, “This is not like buying any other service. This is a medical procedure that could go wrong”, people would be in full awareness of the facts before they went forward.