Draft Online Safety Act 2023 (Category 1, Category 2A and Category 2B Threshold Conditions) Regulations 2025

Debate between Kirsty Blackman and Jeremy Wright

Tuesday 4th February 2025 General Committees

[Kirsty Blackman]

Thank you, Sir Christopher—I appreciate that prod. I did look at Standing Orders this morning, but could not find that bit, so that is incredibly helpful.

On what the Minister said about schedule 11 and the notes that she has been passed from her team on that point, I appreciate her commitment to share the Government’s legal advice. That will be incredibly helpful; it would have been helpful to have it in advance of this Committee.

In schedule 11, it says:

“In making regulations under sub-paragraph (1), the Secretary of State must take into account the likely impact of the number of users of the user-to-user part of the service, and its functionalities, on how easily, quickly and widely regulated user-generated content is disseminated by means of the service.”

Perhaps I cannot read English, or perhaps the Minister, her legal advisers and the team at DSIT read it in a different way from me, but the Secretary of State having to take something into account and the Secretary of State being bound by something are two different things—they are not the same. It does not say that the Secretary of State must regulate only on the specific number of users.

In fact, schedule 11 says earlier that the Secretary of State

“must make regulations specifying conditions…for the user-to-user part of regulated user-to-user services relating to each of the following”,

which are the

“number of users…functionalities of that part of the service, and…any other characteristics of that part of the service or factors”.

The Secretary of State must therefore make regulations in relation to any other characteristics of that part of the service or factors

“relating to that part of the service that the Secretary of State considers relevant.”

He must do that, but he must only take into account the number of users. The Government, however, have decided that taking into account is much more important than “must” do something. They have decided to do that despite Parliament being pretty clear in the language it has used.

I am not terribly happy with the Online Safety Act. It is a lot better than the situation we have currently, but it is far from perfect. As the Minister said, I argued in favour of keeping the stuff about legal but harmful content for adults. I argued against the then Government’s position on that, but the Act is the Act that we have.

The Minister’s point does not make sense. The Secretary of State has to take into account the number of users and how quickly things are disseminated, but he must make regulations about functionalities or factors that he considers relevant. Therefore, it seems that he does not consider suicide forums and livestreaming to be relevant; if he did, he would surely be bound by the “must” and would have to make regulations about them. It is frustrating that the Act does not do what it is supposed to do and does not protect young people from livestreaming. The Minister said that it protects people from seeing that illegal content, but it does not prevent them from creating it.

The Government could make regulations so that every platform that has a livestreaming functionality, or even every platform that has child users on it—there is a lot in the Act about the proportion of children who use a service—is automatically included in category 1 because they consider them to be high risk.

[Sir Jeremy Wright]

It would not be right for either of us to ask the Minister to disclose legal advice—that clearly would not be appropriate—but I am grateful for the Minister’s offer to share a slightly more expansive description of why the Government have come to the conclusion that they have.

On the hon. Lady’s point about what the Act actually says, we have both quoted paragraph 1(5) of schedule 11, which deals with whether the language that has found its way into the ministerial statement is the be-all and end-all of the Minister’s conclusions. We both think it is not. If it is the case, as I think the Minister is arguing, that the ability to disseminate “easily, quickly and widely” is essentially a synonym for the scale of the service and the number of its users, what does the hon. Lady think of the amendment that Baroness Morgan made in the other place to paragraph 1(4), which says that when the regulations we are considering specify

“the way or ways in which the relevant conditions are met”,

for category 1 threshold conditions

“at least one specified condition about number of users or functionality must be met”?

The crucial word that was added is “or”. If the number of users were required to establish what the hon. Lady has described, the word “or” would be inappropriate.

[Kirsty Blackman]

I absolutely agree, and that is a helpful clarification.

If the Government have decided that it is too difficult to regulate high-risk platforms as category 1, and that they do not matter enough because they do not have enough of an impact, they should stand up and tell us that. Rather than saying that their hands have been tied by the Act—they manifestly have not—they need to take ownership of their actions. If they have decided that such platforms are not important enough or that they cannot be bothered having a fight with Ofcom about that, they should be honest and say, “This is the position we have decided to take.” Instead, they are standing up and saying, “Our hands have been tied,” but that is just not correct: their hands have not been tied by the Act.

I appreciate that the Minister will get in touch with me about the legal advice, but it will be too late. This statutory instrument will have been through the process by that time, and people will have been put at risk as a result of the Government’s failure. They have the power to take action in relation to functionalities and factors, and in relation to suicide forums, livestreaming and the creation of child sexual abuse material, and they are choosing not to.

If the Government have decided that it is too difficult to do that, that those platforms are not risky enough and that not enough people are being harmed by them, they need to hold their hands up and say, “We’ve decided that this is the position we are going to take.” They must not hide behind the legislation, which does not say what they are telling us it says. They should just be honest about the fact that they have decided that they cannot be bothered to take action. They cannot be bothered to have a fight with Ofcom because it is not important enough. Hiding behind the legislation is incredibly cowardly—it does not say that.