ONLINE SAFETY BILL (Second sitting)

Kirsty Blackman Excerpts

Committee stage (re-committed clauses and schedules)
Tuesday 13th December 2022 Public Bill Committees

[Paul Scully]

The onus on adults is very much a safety net—very much a catch-all, after we have put the onus on the social media companies and the platforms to adhere to their own terms and conditions.

We have heard a lot about Twitter and the changes to Twitter. We can see the commercial imperative for mainstream platforms, certainly the category 1 platforms, to have a wide enough catch-all in their terms of service—anything that an advertiser, for example, would see as reasonably sensible—to be able to remain a viable platform in the first place. When Elon Musk first started making changes at Twitter, a comment did the rounds: “How do you build a multimillion-dollar company? You sell it to Elon Musk for £44 billion.” He made that change. He has seen the bottom falling out of his market and has lost a lot of the cash he put into Twitter. That is the commercial impetus that underpins a lot of the changes we are making.

[Kirsty Blackman (Aberdeen North) (SNP)]

Is the Minister really suggesting that it is reasonable for people to say, “Right, I am going to have to walk away from Facebook because I don’t agree with their terms of service,” to hold the platform to account? How does he expect people to keep in touch with each other if they have to walk away from social media platforms in order to try to hold them to account?

[Paul Scully]

I do not think the hon. Lady is seriously suggesting that people can communicate only via Facebook—via one platform. The point is that there are a variety of methods of communication, of which has been a major one, although it is not one of the biggest now, with its share value having dropped 71% in the last year. That is, again, another commercial impetus in terms of changing its platform in other, usability-related ways.

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[Paul Scully]

The hon. Lady makes a good point. I talked about the offline world rather than the real world, but clearly that can happen. That is where the balance has to be struck, as we heard from my hon. Friend the Member for Don Valley. It is not black and white; it is a spectrum of greys. Any sensible person can soon see when they stray into areas that we have talked about such as holocaust denial and extremism, but we do not want to penalise people who invariably are testing their freedom of expression.

It is a fine balance, but I think that we have reached the right balance between protecting freedom of expression and protecting vulnerable adults by having three layers of checks. The first is illegality. The second is enforcing the terms of service, which provide a higher bar than we had in the original Bill for the vast majority of platforms, so that we can see right at the beginning how they will be enforced by the platforms. If they change them and do not adhere them, Ofcom can step in. Ofcom can step in at any point to ensure that they are being enforced. The third is a safety net.

[Kirsty Blackman]

On illegal content, is the Minister proposing that the Government will introduce new legislation to make, for example, holocaust denial and eating disorder content illegal, whether it is online or offline? If he is saying that the bar in the online and offline worlds should be the same, will the Government introduce more hate crime legislation?

[Paul Scully]

Hate crime legislation will always be considered by the Ministry of Justice, but I am not committing to any changes. That is beyond my reach, but the two shields that we talked about are underpinned by a safety net.

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[Paul Scully]

The Government recognise the importance of giving adult users greater choice about what they see online and who they interact with, while upholding users’ rights to free expression online. That is why we have removed the “legal but harmful” provisions from the Bill in relation to adults and replaced it with a fairer, simpler approach: the triple shield.

As I said earlier, the first shield will require all companies in scope to take preventive measures to tackle illegal content or activity. The second shield will place new duties on category 1 services to improve transparency and accountability, and protect free speech, by requiring them to adhere to their terms of service when restricting access to content or suspending or banning users. As I said earlier, user empowerment is the key third shield, empowering adults with a greater control over their exposure to legal forms of abuse or hatred, or content that encourages, promotes or provides instructions for suicide, self-harm or eating disorders. That has been done while upholding and protecting freedom of expression.

Amendments 9 and 12 will strengthen the user empowerment duty, so that the largest companies are required to ensure that those tools are effective in reducing the likelihood of encountering the listed content or alerting users to it, and are easy for users to access. That will provide adult users with greater control over their online experience.

We are also setting out the categories of content that those user empowerment tools apply to in the Bill, through amendment 15. Adult users will be given the choice of whether they want to take advantage of those tools to have greater control over content that encourages, promotes or provides instructions for suicide, self-harm and eating disorders, and content that targets abuse or incites hate against people on the basis of race, religion, sex, sexual orientation, disability, or gender reassignment. This is a targeted approach, focused on areas where we know that adult users—particularly those who are vulnerable or disproportionately targeted by online hate and abuse—would benefit from having greater choice.

As I said, the Government remain committed to free speech, which is why we have made changes to the adult safety duties. By establishing high thresholds for inclusion in those content categories, we have ensured that legitimate debate online will not be affected by the user empowerment duties.

I want to emphasise that the user empowerment duties do not require companies to remove legal content from their services; they are about giving individual adult users the option to increase their control over those kinds of content. Platforms will still be required to provide users with the ability to filter out unverified users, if they so wish. That duty remains unchanged. For the reasons that I have set out, I hope that Members can support Government amendments 8 to 17.

I turn to the amendments in the name of the hon. Member for Pontypridd to Government amendments 15 and 16. As I have set out in relation to Government amendments 8 to 17, the Government recognise the intent behind the amendments—to apply the user empowerment tools in clause 14(2) to a greater range of content categories. As I have already set out, it is crucial that a tailored approach is taken, so that the user empowerment tools stay in balance with users’ rights to free expression online. I am sympathetic to the amendments, but they propose categories of content that risk being either unworkable for companies or duplicative to the approach already set out in amendment 15.

The category of

“content that is harmful to health”

sets an extremely broad scope. That risks requiring companies to apply the tools in clause 14(2) to an unfeasibly large volume of content. It is not a proportionate approach and would place an unreasonable burden on companies. It might also have concerning implications for freedom of expression, as it may capture important health advice. That risks, ultimately, undermining the intention behind the user empowerment tools in clause 14(2) by preventing users from accessing helpful content, and disincentivising users from using the features.

In addition, the category

“provides false information about climate change”

places a requirement on private companies to be the arbiters of truth on subjective and evolving issues. Those companies would be responsible for determining what types of legal content were considered false information, which poses a risk to freedom of expression and risks silencing genuine debate.

[Kirsty Blackman]

Did the Minister just say that climate change is subjective?

[Paul Scully]

No, not about whether climate change is happening, but we are talking about a wide range. “Provides false information”—how do the companies determine what is false? I am not talking about the binary question of whether climate change is happening, but climate change is a wide-ranging debate. “Provides false information” means that someone has to determine what is false and what is not. Basically, the amendment outsources that to the social media platforms. That is not appropriate.

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[Alex Davies-Jones]

It is a pleasure to serve under your chairship, Dame Angela. With your permission, I will take this opportunity to make some broad reflections on the Government’s approach to the new so-called triple-shield protection that we have heard so much about, before coming on to the amendment tabled in my name in the group.

Broadly, Labour is disappointed that the system-level approach to content that is harmful to adults is being stripped from the Bill and replaced with a duty that puts the onus on the user to keep themselves safe. As the Antisemitism Policy Trust among others has argued, the two should be able to work in tandem. The clause allows a user to manage what harmful material they see by requiring the largest or most risky service providers to provide tools to allow a person in effect to reduce their likelihood of encountering, or to alert them to, certain types of material. We have concerns about the overall approach of the Government, but Labour believes that important additions can be made to the list of content where user-empowerment tools must be in place, hence our amendment (a) to Government amendment 15.

In July, in a little-noticed written ministerial statement, the Government produced a prototype list of content that would be harmful to adults. The list included priority content that category 1 services need to address in their terms and conditions; online abuse and harassment—mere disagreement with another’s point of view would not reach the threshold for harmful content, and so would not be covered; circulation of real or manufactured intimate images without the subject’s consent; content promoting self-harm; content promoting eating disorders; legal suicide content; and harmful health content that is demonstrably false, such as urging people to drink bleach to cure cancer.

We have concerns about whether listing those harms in the Bill is the most effective mechanism, mostly because we feel that the list should be more flexible and able to change according to the issues of the day, but it is clear that the Government will continue to pursue this avenue despite some very worrying gaps. With that in mind, will the Minister clarify what exactly underpins that list if there have been no risk assessments? What was the basis for drawing up that specific list? Surely the Government should be implored to publish the research that determined the list, at the very least.

I recognise that the false communications offence has remained in the Bill, but the list in Government amendment 15 is not exhaustive. Without the additions outlined in our amendment (a) to amendment 15, the list will do little to tackle some of the most pressing harm of our time, some of which we have already heard about today.

I am pleased that the list from the written ministerial statement has more or less been reproduced in amendment 15, under subsection (2), but there is a key and unexplained omission that our amendment (a) to it seeks to correct: the absence of the last point, on harmful health content. Amendment (a) seeks to reinsert such important content into the Bill directly. It seems implausible that the Government failed to consider the dangerous harm that health misinformation can have online, especially given that back in July they seemed to have a grasp of its importance by including it in the original list.

We all know that health-related misinformation and disinformation can significantly undermine public health, as we have heard. We only have to cast our minds back to the height of the coronavirus pandemic to remind ourselves of how dangerous the online space was, with anti-vax scepticism being rife. Many groups were impacted, including pregnant women, who received mixed messages about the safety of covid vaccination, causing widespread confusion, fear and inaction. By tabling amendment (a) to amendment 15, we wanted to understand why the Government have dropped that from the list and on what exact grounds.

In addition to harmful health content, our amendment (a) to amendment 15 would also add to the list content that incites hateful extremism and provides false information about climate change, as we have heard. In early written evidence from Carnegie, it outlined how serious the threat of climate change disinformation is to the UK. Malicious actors spreading false information on social media could undermine collective action to combat the threats. At present, the Online Safety Bill is not designed to tackle those threats head on.

We all recognise that social media is an important source of news and information for many people, and evidence is emerging of its role in climate change disinformation. The Centre for Countering Digital Hate published a report in 2021 called “The Toxic Ten: How ten fringe publishers fuel 69% of digital climate change denial”, which explores the issue further. Further analysis of activity on Facebook around COP26 undertaken by the Institute for Strategic Dialogue demonstrates the scale of the challenge in dealing with climate change misinformation and disinformation. The research compared the levels of engagement generated by reliable, scientific organisations and climate-sceptic actors, and found that posts from the latter frequently received more traction and reach than the former, which is shocking. For example, in the fortnight in which COP26 took place, sceptic content garnered 12 times the level of engagement that authoritative sources did on the platform, and 60% of the sceptic posts analysed could be classified as actively and explicitly attacking efforts to curb climate change, which just goes to show the importance of ensuring that climate change disinformation is also included in the list in Government amendment 15.

Our two amendments—amendment (a) to amendment 15, and amendment (a) to amendment 16 —seek to ensure that the long-standing omission from the Bill of hateful extremism is put right here as a priority. There is increasing concern about extremism leading to violence and death that does not meet the definition for terrorism. The internet and user-to-user services play a central role in the radicalisation process, yet the Online Safety Bill does not cover extremism.

Colleagues may be aware that Sara Khan, the former lead commissioner for countering extremism, provided a definition of extremism for the Government in February 2021, but there has been no response. The issue has been raised repeatedly by Members across the House, including by my hon. Friend the Member for Plymouth, Sutton and Devonport (Luke Pollard), following the tragic murders carried out by a radicalised incel in his constituency.

Amendment (a) to amendment 16 seeks to bring a formal definition of hateful extremism into the Bill and supports amendment (a) to amendment 15. The definition, as proposed by Sara Khan, who was appointed as Britain’s first countering extremism commissioner in 2018, is an important first step in addressing the gaps that social media platforms and providers have left open for harm and radicalisation.

Social media platforms have often been ineffective in removing other hateful extremist content. In November 2020, The Guardian reported that research from the Centre for Countering Digital Hate had uncovered how extremist merchandise had been sold on Facebook and Instagram to help fund neo-Nazi groups. That is just one of a huge number of instances, and it goes some way to suggest that a repeatedly inconsistent and ineffective approach to regulating extremist content is the one favoured by some social media platforms.

I hope that the Minister will seriously consider the amendments and will see the merits in expanding the list in Government amendment 15 to include these additional important harms.

[Kirsty Blackman]

Thank you for chairing the meeting this afternoon, Dame Angela. I agree wholeheartedly with the amendments tabled by the Labour Front-Bench team. It is important that we talk about climate change denial and what we can do to ensure people are not exposed to that harmful conspiracy theory through content. It is also important that we do what we can to ensure that pregnant women, for example, are not told not to take the covid vaccine or that parents are not told not to vaccinate their children against measles, mumps and rubella. We need to do what we can to ensure measures are in place.

I appreciate the list in Government amendment 15, but I have real issues with this idea of a toggle system—of being able to switch off this stuff. Why do the Government think people should have to switch off the promotion of suicide content or content that promotes eating disorders? Why is it acceptable that people should have to make an active choice to switch that content off in order to not see it? People have to make an active choice to tick a box that says, “No, I don’t want to see content that is abusing me because of my religion,” or “No, I don’t want to see content that is abusing me because of my membership of the LGBT community.” We do not want people to have to look through the abuse they are receiving in order to press the right buttons to switch it off. As the hon. Member for Don Valley said, people should be allowed to say what they want online, but the reality is that the extremist content that we have seen published online is radicalising people and bringing them to the point that they are taking physical action against people in the real, offline world as well as taking action online.

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[Damian Collins]

I rise briefly to say that the introduction of the shields is a significant additional safety measure in the Bill and shows that the Government have thought about how to improve certain safety features as the Bill has progressed.

In the previous version of the Bill, as we have discussed at length, there were the priority legal offences that companies had to proactively identify and mitigate, and there were the measures on transparency and accountability on the terms of service. However, if pieces of content fell below the threshold for the priority legal offences or were not covered, or if they were not addressed in the terms of service, the previous version of the Bill never required the companies to act in any particular way. Reports might be done by Ofcom raising concerns, but there was no requirement for further action to be taken if the content was not a breach of platform policies or the priority safety duties.

The additional measure before us says that there may be content where there is no legal basis for removal, but users nevertheless have the right to have that content blocked. Many platforms offer ad tools already—they are not perfect, but people can opt in to say that they do not want to see ads for particular types of content—but there was nothing for the types of content covered by the Online Safety Bill, where someone could say, “I want to make sure I protect myself from seeing this at all,” and then, for the more serious content, “I expect the platforms to take action to mitigate it.” So this measure is an important additional level of protection for adult users, which allows them to give themselves the certainty that they will not see certain types of content and puts an important, additional duty on the companies themselves.

Briefly, on the point about gambling, the hon. Member for Aberdeen North is quite right to say that someone can self-exclude from gambling at the betting shop, but the advertising code already requires that companies do not target people who have self-excluded with advertising messages. As the Government complete their online advertising review, which is a separate piece of work, it is important that that is effectively enforced on big platforms, such as Facebook and Google, to ensure that they do not allow companies to advertise to vulnerable users in breach of the code. However, that can be done outside the Bill.

[Kirsty Blackman]

My concern is not just about advertising content or stuff that is specifically considered as an advert. If someone put up a TikTok video about how to cheat an online poker system, that would not be classed as an advert and therefore would not be caught. People would still be able to see it, and could not opt out.

[Damian Collins]

I totally appreciate the point that the hon. Lady makes, which is a different one. For gambling, the inducement to act straightaway often comes in the form of advertising. It usually comes in the form of free bets and immediate inducements to act. People who have self-excluded should not be targeted in that way. We need to ensure that that is rigorously enforced on online platforms too.

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[Alex Davies-Jones]

The amendments relate to the tools proposed in clause 14, which as we know will be available for individuals to use on platforms to protect themselves from harm. As the Minister knows, Labour fundamentally disagrees with that approach, which will place the onus on the user, rather than the platform, to protect themselves from harmful content. It is widely recognised that the purpose of this week’s Committee proceedings is to allow the Government to remove the so-called “legal but harmful” clauses and replace them with the user empowerment tool option. Let us be clear that that goes against the very essence of the Bill, which was created to address the particular way in which social media allows content to be shared, spread and broadcast around the world at speed.

This approach could very well see a two-tier internet system develop, which leaves those of us who choose to utilise the user empowerment tools ignorant of harmful content perpetuated elsewhere for others to see. The tools proposed in clause 14, however, reflect something that we all know to be true: that there is some very harmful content out there for us all to see online. We can all agree that individuals should therefore have access to the appropriate tools to protect themselves. It is also right that providers will be required to ensure that adults have greater choice and control over the content that they see and engage with, but let us be clear that instead of focusing on defining exactly what content is or is not harmful, the Bill should focus on the processes by which harmful content is amplified on social media.

However, we are where we are, and Labour believes that it is better to have the Bill over the line, with a regulator in place with some powers, than simply to do nothing at all. With that in mind, we have tabled the amendment specifically to force platforms to have safety tools on by default. We believe that the user empowerment tools should be on by default and that they must be appropriately visible and easy to use. We must recognise that for people at a point of crisis—if a person is suffering with depressive or suicidal thoughts, or with significant personal isolation, for example—the tools may not be at the forefront of their minds if their mental state is severely impacted.

On a similar point, we must not patronise the public. Labour sees no rational argument why the Government would not support the amendment. We should all assume that if a rational adult is able to easily find and use these user empowerment tools, then they will be easily able to turn them off if they choose to do so.

The Minister knows that I am not in the habit of guessing but, judging from our private conversations, his rebuttal to my points may be because he believes it is not the Government’s role to impose rules directly on platforms, particularly when they impact their functionality. However, for Labour, the existence of harm and the importance of protecting people online tips the balance in favour of turning these user empowerment tools on by default. We see no negative reason why that should not be the case, and we now have a simple amendment that could have a significantly positive impact.

I hope the Minister and colleagues will reflect strongly on these amendments, as we believe they are a reasonable and simple ask of platforms to do the right thing and have the user empowerment tools on by default.

[Kirsty Blackman]

Once again, this is a very smart amendment that I wish I had thought of myself and I am happy to support. The case made by those campaigning for freedom of speech at any cost is about people being able to say what they want to say, no matter how harmful that may be. It is not about requiring me, or anyone else, to read those things—the harmful bile, the holocaust denial or the promotion of suicide that is spouted. It is not freedom of speech to require someone else to see and read such content so I cannot see any potential argument that the Government could come up with against these amendments.

The amendments have nothing to do with freedom of speech or with limiting people’s ability to say whatever they want to say or to promote whatever untruths they want to promote. However, they are about making sure that people are protected and that they are starting from a position of having to opt in if they want to see harmful content. If I want to see content about holocaust denial—I do not want to see that, but if I did—I should have to clearly tick a button that says, “Yes, I am pretty extreme in my views and I want to see things that are abusing people. I want to see that sort of content.” I should have to opt in to be able to see that.

There are a significant number of newspapers out there. I will not even pick up a lot of them because there is so much stuff in them with which I disagree, but I can choose not to pick them up. I do not have that newspaper served to me against my will because I have the opportunity to choose to opt out from buying it. I do not have to go into the supermarket and say, “No, please do not give me that newspaper!” I just do not pick it up. If we put the Government’s proposal on its head and do what has been suggested in the Opposition amendments, everyone would be in a much better position.

[Charlotte Nichols]

I note that many providers of 4G internet, including the one I have on my own phone, already block adult content. Essentially, if people want to look at pornography or other forms of content, they have to proactively opt in to be allowed to see it. Would it not make sense to make something as straightforward as that, which already exists, into the model that we want on the internet more widely, as opposed to leaving it to EE and others to do?

[Kirsty Blackman]

I absolutely agree. Another point that has been made is that this is not creating undue burden; the Government are already creating the burden for companies—I am not saying that it is a bad burden, but the Government are already creating it. We just want people to have the opportunity to opt into it, or out of it. That is the position that we are in.

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Division 4

Ayes: 6

Noes: 8

[Kirsty Blackman]

I beg to move amendment 101, in clause 14, page 14, line 17, at end insert—

“(6A) A duty to ensure features and provisions in subsections (2), (4) and (6) are accessible and understandable to adult users with learning disabilities.”

This amendment creates a duty that user empowerment functions must be accessible and understandable to adult users with learning disabilities.

This issue was originally brought to my attention by Mencap. It is incredibly important, and it has potentially not been covered adequately by either our previous discussions of the Bill or the Bill itself. The amendment is specifically about ensuring that available features are accessible to adult users with learning disabilities. An awful lot of people use the internet, and people should not be excluded from using it and having access to safety features because they have a learning disability. That should not be the case, for example, when someone is trying to find how to report something on a social media platform. I had an absolute nightmare trying to report a racist gif that was offered in the list of gifs that came up. There is no potential way to report that racist gif to Facebook because it does not take responsibility for it, and GIPHY does not take responsibility for it because it might not be a GIPHY gif.

It is difficult to find the ways to report some of this stuff and to find some of the privacy settings. Even when someone does find the privacy settings, on a significant number of these platforms they do not make much sense—they are not understandable. I am able to read fairly well, I would think, and I am able to speak in the House of Commons, but I still do not understand some of the stuff in the privacy features found on some social media sites. I cannot find how to toggle off things that I want to toggle off on the level of accessibility or privacy that I have, particularly on social media platforms; I will focus on those for the moment. The Bill will not achieve even its intended purpose if all people using these services cannot access or understand the safety features and user empowerment tools.

I am quite happy to talk about the difference between the real world and the online world. My online friends have no problem with me talking about the real world as if it is something different, because it is. In the real world, we have a situation where things such as cuckooing take place and people take advantage of vulnerable adults. Social services, the police and various organisations are on the lookout for that and try to do what they can to put protections in place. I am asking for more parity with the real world here. Let us ensure that we have the protections in place, and that people who are vulnerable and taken advantage of far too often have access to those tools in order to protect themselves. It is particularly reasonable.

Let us say that somebody with a learning disability particularly likes cats; the Committee may have worked out that I also particularly like cats. Let us say that they want to go on TikTok or YouTube and look at videos of cats. They have to sign up to watch videos of cats. They may not have the capacity or understanding to know that there might be extreme content on those sites. They may not be able to grasp that. It may never cross their minds that there could be extreme content on that site. When they are signing up to TikTok, they should not have to go and find the specific toggle to switch off eating disorder content. All they had thought about was that this is a cool place to look at videos of cats.

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[Kirsty Blackman]

In view of the Minister’s statement, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 13, in clause 14, page 14, line 26, leave out paragraph (a) and insert—

“(a) the likelihood of adult users encountering content to which subsection (2) applies by means of the service, and”

This amendment is about factors relevant to the proportionality of measures to comply with the duty in subsection (2). The new wording replaces a reference to an adults’ risk assessment, as adults’ risk assessments are no longer required (see Amendment 6 which removes clause 12).

Amendment 14, in clause 14, page 14, line 29, leave out “a” and insert “the”.—(Paul Scully.)

This is a technical amendment consequential on Amendment 13.

Amendment (a) proposed to amendment 15: (a), at end insert—

“(8E) Content is within this subsection if it—

(a) incites hateful extremism,

(b) provides false information about climate change, or

(c) is harmful to health.”—(Alex Davies-Jones.)

Question put, That the amendment be made.

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[Alex Davies-Jones]

Again, I will keep my comments on clause 19 brief, as we broadly support the intentions behind the clause and the associated measures in the grouping. My hon. Friend the Member for Worsley and Eccles South (Barbara Keeley) spoke at length about this important clause, which relates to the all-important complaints procedures available around social media platforms and companies, in the previous Bill Committee.

During the previous Committee, Labour tabled amendments that would have empowered more individuals to make a complaint about search content in the event of non-compliance. In addition, we wanted an external complaints option for individuals seeking redress. Sadly, all those amendments were voted down by the last Committee, but I must once again press the Minister on those points, particularly in the context of the new amendments that have been tabled.

Without redress for individual complaints, once internal mechanisms have been exhausted, victims of online abuse could be left with no further options. Consumer protections could be compromised and freedom of expression, with which the Government seem to be borderline obsessed, could be infringed for people who feel that their content has been unfairly removed.

Government new clause 2 deals with the meaning of references to

“restricting users’ access to content”,

in particular by excluding restrictions resulting from the use of user empowerment tools as described in clause 14. We see amendments 22 and 59 as important components of new clause 2, and are therefore more than happy to support them. However, I reiterate to the Minister and place on the record once again the importance of introducing an online safety ombudsman, which we feel is crucial to new clause 2. The Joint Committee recommended the introduction of such an ombudsman, who would consider complaints when internal routes of redress had not resulted in resolution, had failed to address risk and had led to significant and demonstrable harm. As new clause 2 relates to restricting users’ access to content, we must also ensure that there is an appropriate channel for complaints if there is an issue that users wish to take up around restrictions in accessing content.

By now, the Minister will be well versed in my thoughts on the Government’s approach, and on the reliance on the user empowerment tool approach more broadly. It is fundamentally an error to pursue a regime that is so content-focused. Despite those points, we see the merits in Government amendments 22 and 59, and in new clause 2, so have not sought to table any further amendments at this stage.

[Kirsty Blackman]

I am slightly confused, and would appreciate a little clarification from the Minister. I understand what new clause 2 means; if the hon. Member for Pontypridd says that she does not want to see content of a certain nature, and I put something of that nature online, I am not being unfairly discriminated against in any way because she has chosen to opt out of receiving that content. I am slightly confused about the downgrading bit.

I know that an awful lot of platforms use downgrading when there is content that they find problematic, or something that they feel is an issue. Rather than taking that content off the platform completely, they may just no longer put it in users’ feeds, for example; they may move it down the priority list, and that may be part of what they already do to keep people safe. I am not trying to criticise what the Government are doing, but I genuinely do not understand whether that downgrading would still be allowed, whether it would be an issue, and whether people could complain about their content being downgraded because the platform was a bit concerned about it, and needed to check it out and work out what was going on, or if it was taken off users’ feeds.

Some companies, if they think that videos have been uploaded by people who are too young to use the platform, or by a registered child user of the platform, will not serve that content to everybody’s feeds. I will not be able to see something in my TikTok feed that was published by a user who is 13, for example, because there are restrictions on how TikTok deals with and serves that content, in order to provide increased protection and the safety that they want on their services.

Will it still be acceptable for companies to have their own internal downgrading system, in order to keep people safe, when content does not necessarily meet an illegality bar or child safety duty bar? The Minister has not used the phrase “market forces”; I think he said “commercial imperative”, and he has talked a lot about that. Some companies and organisations use downgrading to improve the systems on their site and to improve the user experience on the platform. I would very much appreciate it if the Minister explained whether that will still be the case. If not, will we all have a worse online experience as a result?

[Paul Scully]

I will have a go at that, but I am happy to write to the hon. Lady if I do not respond as fully as she wants. Down-ranking content is a moderation action, as she says, but it is not always done just to restrict access to content; there are many reasons why people might want to do it. Through these changes, we are saying that the content is not actually being restricted; it can still be seen if it is searched for or otherwise encountered. That is consistent with the clarification.

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Labour has not sought to amend the clause, but one again I must reiterate a point that we have pushed on numerous occasions—namely, the importance of requiring in-scope services to publish their risk assessments. The Government have refused on a number of occasions to understand the significance of the level of transparency, but it could bring great benefits, as it would allow researchers and civil society to track harms and hold services to account. Again, I push the Minister and urge him to stress that the risk assessments are published.

[Kirsty Blackman]

Specifically on the issue that was just raised, there were two written ministerial statements on the Online Safety Bill. The first specifically said that an amendment would

“require the largest platforms to publish summaries of their risk assessments for illegal content and material that is harmful to children, to allow users and empower parents to clearly understand the risks presented by these services and the approach platforms are taking to children’s safety”.—[Official Report, 29 November 2022; Vol. 723, c. 31WS.]

Unless I have completely missed an amendment that has been tabled for this Committee, my impression is that that amendment will be tabled in the Lords and that details will be made available about how exactly the publishing will work and which platforms will be required to publish.

I would appreciate it if the Minister could provide more clarity about what that might look like, and about which platforms might have to publish their assessments. I appreciate that that will be scrutinised in the Lords but, to be fair, this is the second time that the Bill has been in Committee in the Commons. It would be helpful if we could be a bit more sighted on what exactly the Government intend to do—meaning more than the handful of lines in a written ministerial statement—because then we would know whether the proposal is adequate, or whether we would have to ask further questions in order to draw it out and ensure that it is published in a certain form. The more information the Minister can provide, the better.

[Paul Scully]

I think we all agree that written records are hugely important. They are important as evidence in cases where Ofcom is considering enforcement action, and a company’s compliance review should be done regularly, especially before they make changes to their service.

The Bill does not intend to place excessive burdens on small and low-risk businesses. As such, clause 21 provides Ofcom with the power to exempt certain types of service from the record-keeping and review duties. However, the details of any exemptions must be published.

To half-answer the point made by the hon. Member for Aberdeen North, the measures will be brought to the Lords, but I will endeavour to keep her up to date as best we can so that we can continue the conversation. We have served together on several Bill Committees, including on technical Bills that required us to spend several days in Committee—although they did not come back for re-committal—so I will endeavour to keep her and, indeed, the hon. Member for Pontypridd, up to date with developments.

Question put and agreed to. 

Clause 21, as amended, accordingly ordered to stand part of the Bill.

Clause 30

duties about freedom of expression and privacy

Amendments made: 36, in clause 30, page 31, line 31, after “have” insert “particular”.

This amendment has the result that providers of regulated search services must have particular regard to freedom of expression when deciding on and implementing safety measures and policies.

Amendment 37, in clause 30, page 31, line 34, after “have” insert “particular”.—(Paul Scully.)

This amendment has the result that providers of regulated search services must have particular regard to users’ privacy when deciding on and implementing safety measures and policies.

Clause 30, as amended, ordered to stand part of the Bill.

Clause 46

Relationship between duties and codes of practice

Amendments made: 38, in clause 46, page 44, line 27, after “have” insert “particular”.

This amendment has the result that providers of services who take measures other than those recommended in codes of practice in order to comply with safety duties must have particular regard to freedom of expression and users’ privacy.

Amendment 39, in clause 46, page 45, line 12, leave out paragraph (c).

This amendment is consequential on Amendment 7 (removal of clause 13).

Amendment 40, in clause 46, page 45, line 31, at end insert “, or

(ii) a duty set out in section 14 (user empowerment);”.—(Paul Scully.)

This amendment has the effect that measures recommended in codes of practice to comply with the duty in clause 14 are relevant to the question of whether a provider is complying with the duties in clause 20(2) and (3) (having regard to freedom of expression and users’ privacy).

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

--- Later in debate ---

[Sarah Owen]

I want to add to the brilliant points made by my hon. Friend the shadow Minister, in particular on the continually changing nature of market forces, which the Minister himself referenced. We want innovation. We want the tech companies to innovate—preferably ones in the UK—but we do not want to be playing catch-up as we are now, making legislation retrospectively to right wrongs that have taken place because our legislative process has been too slow to deal with the technological changes and the changes in social media, in apps, and with how we access data and communicate with one another online. The bare minimum is a biannual report.

Within six months, if a new piece of technology comes up, it does not simply stay with one app or platform; that technology will be leapfrogged by others. Such technological advances can take place at a very rapid pace. The transparency aspect is important, because people should have a right to know what they are using and whether it is safe. We as policy makers should have a right to know clearly whether the legislation that we have introduced, or the legislation that we want to amend or update, is effective.

If we look at any other approach that we take to protect the health and safety of the people in our country—the people we all represent in our constituencies —we always say that prevention is better than cure. At the moment, without transparency and without researchers being able to update the information we need to see, we will constantly be playing catch-up with digital tech.

[Kirsty Blackman]

This may be the only place in the Bill where I do not necessarily agree wholeheartedly with the Labour Front Benchers. I agree with the vast majority of what was said, but I have some concerns about making mandatory the requirement for transparency reports to be public in all circumstances, because there are circumstances in which that would simply highlight loopholes, allowing people to exploit them in a way that we do not want them to do.

Specifically on the regularity of reporting and some level of transparency, given that the Minister is keen on the commercial imperative and ensuring that people are safe, we need a higher level of transparency than we currently see among the platforms. There is a very good case to be made for some of the transparency reporting to be made public, particularly for the very largest platforms to be required to make it public, or to make sections of it public.

I want to talk about the speed of change to the terms of service and about proportionality. If Ofcom could request transparency reporting only annually, imagine that it received transparency information three days before Elon Musk took over Twitter. Twitter would be a completely different place three days later, and Ofcom would be unable to ask for more transparency information for a whole year, by which point a significant amount of damage could have been done. We have seen that the terms of service can change quickly. Ofcom would not have the flexibility to ask for an updated transparency report, even if drastic changes were made to the services.

Another thing slightly concerns me about doing this annually and not allowing a bit more flexibility. Let us say that a small platform that none of us has ever heard of, such as Mastodon, shoots to prominence overnight. Let us also say that, as a small platform, Mastodon was previously regulated, and Ofcom had made a request for transparency information shortly before Elon Musk took over Twitter and people had migrated to Mastodon. Mastodon would now be suffering from very different issues than those it had when it had a small number of users, compared with the significant number that it has now. It would have changed dramatically, yet Ofcom would not have the flexibility to seek that information. We know that platforms in the online world have sudden stellar increases in popularity overnight. Some have been bubbling along for ages with nobody using them. Not all of them are brand-new platforms that suddenly shoot to prominence. The lack of flexibility is a problem.

Lastly, I agree about researchers being able to access the transparency information provided. It is really important that we recognise that Ofcom is not the only expert. Ofcom has a huge amount of expertise, and it is massively increasing its staff numbers to cope with these issues, but the reality is that those staff are not academic researchers. They are unable to look at the issues and are not necessarily the most prominent experts in the field of child protection, for example. That is not to take away from the expertise in Ofcom, but we could allow it to ask a regulated group of researchers to look at the information and point out any issues that may not have been spotted, particularly given the volume of transparency reports that there are likely to be.

[Kim Leadbeater]

The hon. Lady makes an important point. In terms of transparency, the question for me is, what are the Government worried about? Surely part of the Bill is about finding out what is really going on, and the only way that we will do that is by having access to the information. The more transparency, the better. The hon. Lady is right that having experts who can research what is going on is fundamental. If there is a concern around the workload for Ofcom, that is a separate issue that the Minister needs to address, but surely the more work that is done in terms of research and transparency, the better.

[Kirsty Blackman]

We have seen that just from the people from external organisations who have contacted us about the Bill. The amount of expertise that we do not have that they have brought to the table has significantly improved the debate and hopefully the Bill. Even prior to the consultations that have happened, that encouraged the Minister to make the Bill better. Surely that is why the pre-legislative scrutiny Committee looked at the Bill—in order to improve it and to get expert advice. I still think that having specific access to expertise in order to analyse the transparency report has not been covered adequately.

[Damian Collins]

Annual transparency reporting is an important part of how the system will work. Transparency is one of the most important aspects of how the Online Safety Bill works, because without it companies can hide behind the transparency reports they produce at the moment, which give no transparency at all. For example, Facebook and YouTube report annually that their AI finds 95% of the hate speech they remove, but Frances Haugen said that they removed only 5% of the hate speech. So the transparency report means that they remove 95% of 5%, and that is one of the fundamental problems. The Bill gives the regulator the power to know, and the regulator then has to make informed decisions based on the information it has access to.

--- Later in debate ---

[Alex Davies-Jones]

I will keep my comments on this grouping brief, because I have already raised our concerns and our overarching priority in terms of transparency reports in the previous debate, which was good one, with all Members highlighting the need for transparency and reporting in the Bill. With the Chair’s permission, I will make some brief comments on Government amendment 72 before addressing Government amendments 73 and 75.

It will come as no surprise to the Minister that amendment 72, which defines relevant content for the purposes of schedule 8, has a key omission—specifying priority content harmful to adults. For reasons we have covered at length, we think that it is a gross mistake on the Government’s side to attempt to water down the Bill in this way. If the Minister is serious about keeping adults safe online, he must reconsider this approach. However, we are happy to see amendments 73 and 75, which define consumer content and regulated user-generated content. It is important for all of us—whether we are politicians, researchers, academics, civil society, stakeholders, platforms, users or anyone else—that these definitions are in the Bill so that, when it is passed, it can be applied properly and at pace. That is why we have not sought to amend this grouping.

I must press the Minister to respond on the issues around relevant content as outlined in amendment 72. We greatly feel that more needs to be done to address this type of content and its harm to adults, so I would be grateful to hear the Minister’s assessment of how exactly these transparency reports will report back on this type of harm, given its absence in this group of amendments and the lack of a definition.

[Kirsty Blackman]

I am pleased to see the list included and the number of things that Ofcom can ask for more information on. I have a specific question about amendment 75. Amendment 75 talks about regulated user-generated content and says it has the same meaning as it does in the interpretation of part 3 under clause 50. The Minister may or may not know that there are concerns about clause 50(5), which relates to

“One-to-one live aural communications”.

One-to-one live aural communications are exempted. I understand that that is because the Government do not believe that telephony services, for example, should be part of the Online Safety Bill—that is a pretty reasonable position for them to take. However, allowing one-to-one live aural communications not to be regulated means that if someone is using voice chat in Fortnite, for example, and there are only two people on the team that they are on, or if someone is using voice chat in Discord and there are only two people online on the channel at that time, that is completely unregulated and not taken into account by the Bill.

I know that that is not the intention of the Bill, which is intended to cover user-generated content online. The exemption is purely in place for telephony services, but it is far wider than the Government intend it to be. With the advent of more and more people using virtual reality technology, for example, we will have more and more aural communication between just two people, and that needs to be regulated by the Bill. We cannot just allow a free-for-all.

If we have child protection duties, for example, they need to apply to all user-generated content and not exempt it specifically because it is a live, one-to-one aural communication. Children are still at significant risk from this type of communication. The Government have put this exemption in because they consider such communication to be analogous to telephony services, but it is not. It is analogous to telephony services if we are talking about a voice call on Skype, WhatsApp or Signal—those are voice calls, just like telephone services—but we are talking about a voice chat that people can have with people who they do not know, whose phone number they do not know and who they have no sort of relationship with.

Some of the Discord servers are pretty horrendous, and some of the channels are created by social media influencers or people who have pretty extreme views in some cases. We could end up with a case where the Discord server and its chat functions are regulated, but if aural communication or a voice chat is happening on that server, and there are only two people online because it is 3 o’clock in the morning where most of the people live and lots of them are asleep, that would be exempted. That is not the intention of the Bill, but the Government have not yet fixed this. So I will make one more plea to the Government: will they please fix this unintended loophole, so that it does not exist? It is difficult to do, but it needs to be done, and I would appreciate it if the Minister could take that into consideration.

[Paul Scully]

I do not believe that the provisions in terms of Ofcom’s transparency powers have been watered down. It is really important that the Bill’s protection for adults strikes the right balance with its protections for free speech, which is why we have replaced the “legal but harmful” clause. I know we will not agree on that, but there are more new duties that will make platforms more accountable. Ofcom’s transparency powers will enable it to assess compliance with the new safety duties and hold platforms accountable for enforcing their terms of service to keep users safe. Companies will also have to report on the measures that they have in place to tackle illegal content or activity and content that is harmful for children, which includes proactive steps to address offences such as child sexual exploitation and abuse.

The legislation will set out high-level categories of information that companies may be required to include in their transparency reports, and Ofcom will then specify the information that service providers will need to include in those reports, in the form of a notice. Ofcom will consider companies’ resources and capacity, service type and audience in determining what information they will need to include. It is likely that the information that is most useful to the regulator and to users will vary between different services. To ensure that the transparency framework is proportionate and reflects the diversity of services in scope, the transparency reporting requirements set out in the Ofcom notice are likely to differ between those services, and the Secretary of State will have powers to update the list of information that Ofcom may require to reflect any changes of approach.

--- Later in debate ---

[Kirsty Blackman]

The in-game chat that children use is overwhelmingly voice chat. Children do not type if they can possibly avoid it. I am sure that that is not the case for all children, but it is for most children. Aural communication is used if someone is playing Fortnite duos, for example, with somebody they do not know. That is why that needs to be included.

[Paul Scully]

I very much get that point. It is not something that I do, but I have certainly seen it myself. I am happy to chat to the hon. Lady to ensure that we get it right.

Amendment 72 agreed to.

Amendments made: 73, in schedule 8, page 206, line 6, at end insert—

“‘consumer content’ has the same meaning as in Chapter 2A of Part 4 (see section (Interpretation of this Chapter)(3));”.

This amendment defines “consumer content” for the purposes of Schedule 8.

Amendment 74, in schedule 8, page 206, leave out lines 7 and 8.

This amendment is consequential on Amendment 41 (removal of clause 55).

Amendment 75, in schedule 8, page 206, line 12, at end insert—

“‘regulated user-generated content’ has the same meaning as in Part 3 (see section 50), and references to such content are to content that is regulated user-generated content in relation to the service in question;”.—(Paul Scully.)

This amendment defines “regulated user-generated content” for the purposes of Schedule 8.

Schedule 8, as amended, agreed to.

Ordered, That further consideration be now adjourned. —(Mike Wood.)