Online Safety Bill (Fourteenth sitting)

Kim Leadbeater Excerpts

Committee stage
Tuesday 21st June 2022 Public Bill Committees

[Alex Davies-Jones]

It did not, but there were examples of disinformation, misinformation and the spreading of falsehoods, and none of these powers existed at the time. It seems weird—if I can use that term—that these exist now. Surely, the more appropriate method would be for the Secretary of State to write a letter to Ofcom to which it had to have regard. As it stands, this dangerous clause ensures the Secretary of State has the power to interfere with day-to-day enforcement. Ultimately, it significantly undermines Ofcom’s overall independence, which we truly believe should be at the heart of the Bill.

With that in mind, I will now speak to our crucial new clause 10, which instead would give Ofcom the power to take particular steps, where it considers that there is a threat to the health and safety of the public or national security, without the need for direction from the Secretary of State. Currently, there is no parliamentary scrutiny of the powers outlined in clause 146; it says only that the Secretary of State must publish their reasoning unless national security is involved. There is no urgency threshold or requirement in the clause. The Secretary of State is not required to take advice from an expert body, such as Public Health England or the National Crime Agency, in assessing reasonable grounds for action. The power is also not bounded by the Bill’s definition of harm.

These instructions do two things. First, they direct Ofcom to use its quite weak media literacy duties to respond to the circumstances. Secondly, a direction turns on a power for Ofcom to ask a platform to produce a public statement about what the platform is doing to counter the circumstances or threats in the direction order—that is similar in some ways to the treatment of harm to adults. This is trying to shame a company into doing something without actually making it do it. The power allows the Secretary of State directly to target a given company. There is potential for the misuse of such an ability.

The explanatory notes say:

“the Secretary of State could issue a direction during a pandemic to require OFCOM to; give priority to ensuring that health misinformation and disinformation is effectively tackled when exercising its media literacy function; and to require service providers to report on the action they are taking to address this issue.”

Recent experience of the covid pandemic and the Russian invasion of Ukraine suggests that the Government can easily legislate when required in an emergency and can recall Parliament. The power in the Bill is a strong power, cutting through regulatory independence and targeting individual companies to evoke quite a weak effect. It is not being justified as an emergency power where the need to move swiftly is paramount. Surely, if a heavier-duty action is required in a crisis, the Government can legislate for that and explain to Parliament why the power is required in the context of a crisis.

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

It is really important to make sure that the Bill does not end up being a cover for the Secretary of State of the day to significantly interfere with the online space, both now and in the future. At the moment, I am not satisfied that the Secretary of State’s powers littered through the Bill are necessary. I share other hon. Members’ concerns about what this could mean for both the user experience and online safety more broadly. I hope my hon. Friend agrees that the Minister needs to provide us—not just us here today, but civil society and others who might be listening—with more reassurance that the Secretary of State’s powers really are necessary.

[Alex Davies-Jones]

I completely agree with my hon. Friend. We talk time and again about this Bill being world leading, but with that comes a responsibility to show global leadership. Other countries around the world will be looking to us, and this Parliament, when they adopt their own, similar legislation, and we need to be mindful of that when looking at what powers we give to a Secretary of State—particularly in overruling any independence of Ofcom or Parliament’s sovereignty for that matter.

New clause 10 provides a viable alternative. The Minister knows that this is an area where even his Back Benchers are divided. He must closely consider new clause 10 and recognise that placing power in Ofcom’s hands is an important step forward. None of us wants to see a situation where the Secretary of State is able to influence the regulator. We feel that, without this important clause and concession, the Government could be supporting a rather dangerous precedent in terms of independence in regulatory systems more widely.

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[Chris Philp]

I welcome the shadow Minister’s support for this review clause, which is important. I will not add to her comments.

Question put and agreed to.

Clause 149 accordingly ordered to stand part of the Bill.

Clause 150

Harmful communications offence

[Kim Leadbeater]

I beg to move amendment 112, in clause 150, page 127, line 28, at end insert “and;

(b) physical harm that has been acquired as a consequence of receiving the content of a message sent online.”

This amendment would expand the definition of harm for the purposes of the harmful communications offence to incorporate physical harm resulting from messages received online.

[The Chair]

With this it will be convenient to discuss amendment 113, in clause 150, page 127, line 28, at end insert “; or

(b) physical harm resulting from an epileptic seizure, where the seizure has been triggered by the intentional sending of flashing images to a person with epilepsy.”

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[Kim Leadbeater]

I move the amendment in my name and will speak to amendment 113, which is in the name of the hon. Member for Blackpool North and Cleveleys (Paul Maynard).

The amendment would put into effect Zach’s law in full. Zach, as many Members know, is an amazing, energetic and bright young boy from my constituency. I had the absolute pleasure of visiting Zach and his mum Clare at their home in Hartshead a few weeks ago. We chatted about school and his forthcoming holiday, and he even invited me to the pub. However, Zach also has epilepsy.

Disgustingly, he was trolled online a few years ago and sent flashing images by bullies, designed to trigger his condition and give him an epileptic seizure, a seizure that not only would cause him and his family great distress, but can be extremely dangerous and cause Zach significant psychological and physical harm. I know that we are all united in our disgust at such despicable actions and committed to ensuring that this type of unbelievable online bullying is against the law under the Bill.

On Second Reading, I raised the matter directly with the Minister and I am glad that he pointed to clause 150 and stated very explicitly that subsection (4) will cover the type of online harm that Zach has encountered. However, we need more than just a commitment at the Dispatch Box by the Minister, or verbal reassurances, to protect Zach and the 600,000 other people in the UK with epilepsy.

The form of online harm that Zach and others with epilepsy have suffered causes more than just “serious distress”. Members know that the Bill as drafted lists

“psychological harm amounting to at least serious distress”

as a qualifying criterion of the offence. However, I believe that does not accurately and fully reflect the harm that epilepsy trolling causes, and that it leaves a significant loophole that none of us here wish to see exploited

For many people with epilepsy, the harm caused by this vicious online trolling is not only psychological but physical too. Seizures are not benign events. They can result in broken bones, concussion, bruises and cuts, and in extreme cases can be fatal. It is simply not right to argue that physical harm is intrinsically intertwined with psychological harm. They are different harms with different symptoms. While victims may experience both, that is not always the case.

Professor Sander, medical director of the Epilepsy Society and professor of neurology at University College London Hospitals NHS Foundation Trust, who is widely considered one of the world’s leading experts on epilepsy, has said:

“Everyone experiences seizures differently. Some people may be psychologically distressed by a seizure and not physically harmed. Others may be physically harmed but not psychologically distressed. This will vary from person to person, and sometimes from seizure to seizure depending on individual circumstances.”

Amendment 112 will therefore expand the scope of clause 150 and insert on the face of the Bill that an offence will also be committed under the harmful communications clause when physical harm has occurred as a consequence of receiving a message sent online with malicious intent. In practical terms, if a person with epilepsy were to receive a harmful message online that triggers their epilepsy and they subsequently fall off their chair and hit their head, that physical harm will be proof of a harmful communication offence, without the need to prove any serious psychological distress that may have been caused.

This simple but effective amendment, supported by the Epilepsy Society, will ensure that the horrific trolling that Zach and others with epilepsy have had to endure will be covered in full by the Bill. That will mean that the total impact that such trolling has on the victims is reflected beyond solely psychological distress, so there can be no ambiguity and nowhere for those responsible for sending these images and videos to hide.

I am aware that the Minister has previously pointed to the possibility of a standalone Bill—a proposal that is under discussion in the Ministry of Justice. That is all well and good, but that should not delay our action when the Bill before us is a perfectly fit legislative vehicle to end epilepsy trolling, as the Law Commission report recommended.

I thank colleagues from across the House for the work they have done on this important issue. I sincerely hope that the amendment is one instance where we can be united in this Committee. I urge the Minister to adopt amendment 112, to implement Zach’s law in full and to provide the hundreds of thousands of people across the UK living with epilepsy the legal protections they need to keep them safe online. It would give me no greater pleasure than to call at Zach’s house next time I am in the area and tell him that this is the case.

[Dean Russell (Watford) (Con)]

May I praise the hon. Member for Batley and Spen for such an eloquent and heartfelt explanation of the reason why this amendment to the Bill is so important?

I have been campaigning on Zach’s law for the past nine months. I have spoken to Zach multiple times and have worked closely with my hon. Friend the Member for Stourbridge (Suzanne Webb) in engaging directly with Facebook, Twitter and the big platforms to try to get them to do something, because we should not need to have a law to stop them sending flashing images. We had got quite far a few months ago, but now that seems to have stalled, which is very frustrating.

I am stuck between my heart and my head on this amendment. My heart says we need to include the amendment right now, sort it out and get it finalised. However, my head says we have got to get it right. During the Joint Committee for Online Safety before Christmas and in the evidence sessions for this Bill, we heard that if the platforms want to use a loophole and get around things they will. I have even seen that with regard to the engagements and the promises we have had.

[Dean Russell]

That is an excellent point. I have yet to make up my mind which way to vote if the amendment is pressed to a vote; I do not know whether this is a probing amendment. Having spoken to the Epilepsy Society and having been very close to this issue for many months, for me to feel comfortable, I want the Minister not just to say, as he has said on the Floor of the House, to me personally, in meetings and recently here, that the clause should cover epilepsy, and does seem to, and that he is very confident of that, but to give some assurance that we will change the law in some form.

[Kim Leadbeater]

I am incredibly grateful for the hon. Member’s comments and contribution. I agree wholeheartedly. We need more than a belief and an intention. There is absolutely no reason why we cannot have this in black and white in the Bill. I hope he can find a way to do the right thing today and vote for the amendment.

[Dean Russell]

The phrase “Do the right thing” is at the heart of this. My hon. Friend the Member for Ipswich (Tom Hunt) presented the Flashing Images Bill yesterday. A big part of this is about justice. I am conscious that we have got to get the balance right; stopping this happening has an impact for the people who choose to do this. I am keen to hear what the Minister says. We have got to get this right. I am keen to get some assurances, which will very much sway my decision on the vote today.

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The question then arises which legislative vehicle the offence will go in. I am aware of the private Member’s Bill, but it will take a very long time and we probably would not want to rely on it, so I am in the process of getting cross-Government agreement on which legislative vehicle will be used. I do not want to say any more about that now, because it is still subject to collective agreement, but I am expecting to come back to the House on Report and confirm which Bill the measure will go in.

[Kim Leadbeater]

I genuinely appreciate the Minister’s comments, but why would we spend more time doing other pieces of legislation when we can do it right here and right now? The amendment will solve the problem without causing any more pain or suffering over a long period of time.

[Chris Philp]

One of the pieces of legislation that could be used is this Bill, because it is in scope. If the hon. Lady can bear with me until Report, I will say more about the specific legislative vehicle that we propose to use.

On the precise wording to be used, I will make a couple of points about the amendments that have been tabled—I think amendment 113 is not being moved, but I will speak to it anyway. Amendment 112, which was tabled by the hon. Member for Batley and Spen, talks about bringing physical harm in general into the scope of clause 150. Of course, that goes far beyond epilepsy trolling, because it would also bring into scope the existing offence of assisting or encouraging suicide, so there would be duplicative law: there would be the existing offence of assisting or encouraging suicide and the new offence, because a communication that encouraged physical harm would do the same thing.

If we included all physical harm, it would duplicate the proposed offence of assisting or encouraging self-harm that is being worked on by the Ministry of Justice and the Law Commission. It would also duplicate offences under the Offences Against the Person Act 1861, because if a communication caused one person to injure another, there would be duplication between the offence that will be created by clause 150 and the existing offence. Clearly, we cannot have two offences that criminalise the same behaviour. To the point made by the hon. Member for Aberdeen North, it would not be right to create two epilepsy trolling offences. We just need one, but it needs to be right.

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[Chris Philp]

That is a good question, and it ties into my next point. Clearly, amendment 113 is designed to create a two-sentence epilepsy trolling offence. When trying to create a brand-new offence—in this case, epilepsy trolling—it is unlikely that two sentences’ worth of drafting will do the trick, because a number of questions need to be addressed. For example, the drafting will need to consider what level of harm should be covered and exactly what penalty would be appropriate. If it was in clause 150, the penalty would be two years, but it might be higher or lower, which needs to be addressed. The precise definitions of the various terms need to be carefully defined as well, including “epilepsy” and “epileptic seizures” in amendment 113, which was tabled by my hon. Friend the Member for Blackpool North and Cleveleys. We need to get proper drafting.

My hon. Friend the Member for Eastbourne mentioned that the Epilepsy Society had some thoughts on the drafting. I know that my colleagues in the Ministry of Justice and, I am sure, the office of the parliamentary counsel, would be keen to work with experts from the Epilepsy Society to ensure that the drafting is correct. Report will likely be before summer recess—it is not confirmed, but I am hoping it will be—and getting the drafting nailed down that quickly would be challenging.

I hope that, in a slightly indirect way, that answers the question. We do not have collective agreement about the precise legislative vehicle to use; however, I hope it addresses the questions about how the timing and the choreography could work.

[Kim Leadbeater]

We have talked a lot about the Epilepsy Society this afternoon, and quite rightly too, as they are the experts in this field. My understanding is that it is perfectly happy with the language in this amendment—

[Chris Philp]

Which one?

[Kim Leadbeater]

Amendment 112. I think that the Epilepsy Society feels that this would be covered. I am also confused, because the Minister said previously that it was his belief and intention that this clause would cover epilepsy trolling, but he is now acknowledging that it does not. Why would we not, therefore, just accept the amendment that covers it and save everybody a lot of time?

[Chris Philp]

Representations have been made by the three Members here that epilepsy deserves its own stand-alone offence, and the Government have just agreed to do that, so take that as a win. On why we would not just accept amendment 112, it may well cover epilepsy, and may well cover it to the satisfaction of the Epilepsy Society, but it also, probably inadvertently, does a lot more than that. It creates a duplication with the offence of assisting or encouraging suicide.

[Kim Leadbeater]

Surely that is almost a bonus?

[Chris Philp]

No, it is not a bonus, because we cannot have two different laws that criminalise the same thing. We want to have laws that are, essentially, mutually exclusive. If a person commits a particular act, it should be clear which Act the offence is being committed under. Imagine that there were two different offences for the same act with different sentences—one is two years and one is 10 years. Which sentence does the judge then apply? We do not want to have law that overlaps, where the same act is basically a clear offence under two different laws. Just by using the term “physical harm”, amendment 112 creates that. I accept that it would cover epilepsy, but it would also cover a whole load of other things, which would then create duplication.

That is why the right way to do this is essentially through a better drafted version of amendment 113, which specifically targets epilepsy. However, it should be done with drafting that has been done properly—with respect to my hon. Friend the Member for Blackpool North and Cleveleys, who drafted the amendment—with definitions that are done properly, and so on. That is what we want to do.

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[Chris Philp]

My hon. Friend makes an extremely powerful point that is incapable of being improved upon.

[Kim Leadbeater]

rose—

[Chris Philp]

Or perhaps it is.

[Kim Leadbeater]

It is wonderful that we have such consensus on this issue. I am grateful to colleagues for that. I am very concerned about the pressures on parliamentary time, and the fact that we are kicking this issue down the road again. We could take action today to get the process moving. That is what Zach and his family want and what other people who have been subjected to this hideous bullying want. Without a firm timeframe for another way of getting this done, I am struggling to understand why we cannot do this today.

[Chris Philp]

The progress that the campaign has made, with the clear commitment from the Government that we are going to legislate for a specific epilepsy trolling offence, is a huge step forward. I entirely understand the hon. Lady’s impatience. I have tried to be as forthcoming as I can be about likely times, in answer to the question from the hon. Member for Aberdeen North, within the constraints of what is currently collectively agreed, beyond which I cannot step.

Amendment 112 will sort out the epilepsy, but unfortunately it will create duplicative criminal law. We cannot let our understandable sense of urgency end up creating a slightly dysfunctional criminal statute book. There is a path that is as clear as it reasonably can be. Members of the Committee will probably have inferred the plan from what I said earlier. This is a huge step forward. I suggest that we bank the win and get on with implementing it.

[Chris Philp]

I think that is probably a good place to leave my comments. I can offer public testimony of my hon. Friend’s tenacity in pursuing this issue.

I ask the hon. Member for Batley and Spen to withdraw the amendment. I have given the reasons why: because it would create duplicative criminal law. I have been clear about the path forward, so I hope that on that basis we can work together to get this legislated for as a new offence, which is what she, her constituent and my hon. Friends the Members for Watford and for Eastbourne and others have been calling for.

[Kim Leadbeater]

I appreciate the Minister’s comments and the support from across the House. I would like to the push the amendment to a vote.

Question put, That the amendment be made.