Online Safety Bill

Lord Allan of Hallam Excerpts

Committee stage
Tuesday 25th April 2023 Lords Chamber

[Lord Allan of Hallam (LD)]

My Lords, I want to inject into the debate some counterarguments, which I hope will be received in the constructive spirit in which they are intended. Primarily, I want to argue that a level playing field is not the right solution here and that there is a strong logic for a graduated response. It is often tempting to dial everything up to 11 when you have a problem, and we clearly do have an issue around child access to pornography. But from a practical point of view, the tools we are giving our regulator are better served by being able to treat different kinds of services differently.

I think there are three classes of service that we are thinking about here. The first is a service with the primary purpose and explicit intent to provide pornography and nothing else. A regime dedicated to those sites is quite appropriate. Such a service might have not just the strongest levels of age verification but a whole other set of requirements, which I know we will debate later, around content verification and all sorts of other things that kick into play. The second category is made up of services that are primarily designed for social interaction which prohibit pornography and make quite strenuous efforts to keep it off. Facebook is such a service. I worked there, and we worked hard to try to keep pornography off. We could not guarantee that it was never present, but that was our intent: we explicitly wanted to be a non-pornographic site. Then there are—as the noble Lord, Lord Bethell, pointed out—other services, such as Twitter, where the primary purpose is social but a significant proportion of adult content is allowed.

I suggest that one of the reasons for having a graduated response is that, from our point of view, we would like services to move towards porn reduction, and for those general-purpose services to prohibit porn as far as possible. That is our intent. If we have a regulatory system that says, “Look, we’re just going to treat you all the same anyway”, we may provide a perverse incentive for services not to move up the stack, as it were, towards a regime where by having less pornographic or sexualised content, they are able to see some benefit in terms of their relationship with the regulator. That is the primary concern I have around this: that by treating everybody the same, we do not create any incentive for people to deal with porn more effectively and thereby get some relief from the regulator.

From a practical point of view, the relationship that the regulator has is going to be critical to making all these things work. Look at what has been happening in continental Europe. There have been some real issues around enforcing laws that have been passed in places such as France and Germany because there has not been the kind of relationship that the regulator needs with the providers. I think we would all like to see Ofcom in a better position, and one of the ways it can do that is precisely by having different sets of rules. When it is talking to a pure pornography site, it is a different kind of conversation from the one it is going to have with a Twitter or a Facebook. Again, they need to have different rules and guidance that are applied separately.

The intent is right: we want to stop under-18s getting on to those pure porn sites, and we need one set of tools to do that. When under-18s get on to a social network that has porn on it, we want the under-18s, if they meet the age requirement, to have access—that is perfectly legitimate—but once they get there, we want them kept out of the section that is adult. For a general-purpose service that prohibits porn, I think we can be much more relaxed, at least in respect of pornography but not in respect of other forms of harmful content—but we want the regulator to be focused on that and not on imposing porn controls. That graduated response would be helpful to the regulator.

Some of the other amendments that the noble Lord, Lord Bethell, has proposed will help us to talk about those kinds of measures—what Twitter should do inside Twitter, and so on—but the amendments we have in front of us today are more about dialling it all up to 11 and not allowing for that graduation. That is the intent I heard from the amendments’ proposers. As I say, that is the bit that, respectfully, may end up being counterproductive.

[Lord Bethell (Con)]

Could the noble Lord advise us on how he would categorise a site such as Twitter, on which it is estimated that 13% of the page deliveries are to do with pornography? Does it qualify as a pornography site? To me, it is ambiguous. Such a large amount of its financial revenue comes from pages connected with pornography that it seems it has a very big foot in the pornography industry. How would he stop sites gaming definitions to benefit from one schedule or another? Does he think that puts great pressure on the regulator to be constantly moving the goalposts in order to capture who it thinks might be gaming the system, instead of focusing on content definition, which has a 50-year pedigree, is very well defined in law and is an altogether easier status to analyse and be sure about?

[Lord Allan of Hallam (LD)]

The Twitter scenario, and other scenarios of mixed sites, are some of the most challenging that we have to deal with. But I would say, straightforwardly, “Look, 13% is a big chunk, but the primary purpose of Twitter is not the delivery of pornography”. I use Twitter on a daily basis and I have never seen pornography on it. I understand that it is there and that people can go for it, and that is an issue, but I think people out there would say that for most people, most of the time, the primary purpose of Twitter is not pornography.

What we want to do—in answer to the noble Lord’s second point—is create an incentive for people to be recategorised in the right direction. There is an assumption here that it is all going to be about gaming the system. I actually think that there is an opportunity here for genuine changes. There will be a conversation with Twitter. It will be interesting, given Twitter’s current management—apparently it is run by a dog, so there will be a conversation with the dog that runs Twitter. In that conversation, the regulator, Ofcom, on our behalf, will be saying, “You could change your terms of service and get rid of pornography”. Twitter will say yes or no. If it says no, Ofcom will say, “Well, here are all the things we expect you to do in order to wall off that part of the site”.

That is a really healthy and helpful conversation to have with Twitter. I expect it is listening now and already thinking about how it will respond. But it would expect that kind of treatment and conversation to be different; and I think the public would expect that conversation to be a different and better conversation than just saying “Twitter, you’re Pornhub. We’re just going to treat you like Pornhub”.

That is the distinction. As I say, we have an opportunity to get people to be more robust about either limiting or removing pornography, and I fear that the amendments we have in front of us would actually undermine rather than enhance that effort.

[Baroness Kidron (CB)]

At the centre of this is the question of whether we are trying to block the entire service or block at the level of porn content. It is the purpose of a set of amendments in the names of the noble Lord, Lord Bethell, myself and a number of other noble Lords to do exactly the latter. But I have to say to the noble Baroness that I am very much in sympathy with, first, putting porn behind an age gate; secondly, having a commencement clause; and, thirdly and very importantly—this has not quite come up in the conversation—saying that harms must be on the face of the Bill and that porn is not the only harm. I say, as a major supporter of the Bereaved Families for Online Safety, that “Porn is the only harm children face” would be a horrendous message to come from this House. But there is nothing in the noble Baroness’s amendments, apart from where the action happens, that I disagree with.

I also felt that the noble Baroness made an incredibly important point when she went into detail on Amendment 125A. I will have to read her speech in order to follow it, because it was so detailed, but the main point she made is salient and relates to an earlier conversation: the reason we have Part 5 is that the Government have insisted on this ridiculous thing about user-to-user and search, instead of doing it where harm is. The idea that you have Part 5, which is to stop the loophole of sites that do not have user-to-user, only to find that they can add user-to-user functionality and be another type of site, is quite ludicrous. I say to the Committee and the Minister, who I am sure does not want me to say it, “If you accept Amendment 2, you’d be out of that problem”—because, if a site was likely to be accessed by children and it had harm and we could see the harm, it would be in scope. That is the very common-sense approach. We are where we are, but let us be sensible about making sure the system cannot be gamed, because that would be ludicrous and would undermine everybody’s efforts—those of the Government and of all the campaigners here.

I just want to say one more thing because I see that the noble Lord, Lord Moylan, is back in his place. I want to put on the record that age assurance and identity are two very separate things. I hope that, when we come to debate the package of harms—unfortunately, we are not debating them all together; we are debating harms first, then AV—we get to the bottom of that issue because I am very much in the corner of the noble Lord and the noble Baroness, Lady Fox, on this. Identity and age assurance must not be considered the same thing by the House, and definitely not by the legislation.