Online Safety Bill

Lord Allan of Hallam Excerpts

Committee stage
Tuesday 23rd May 2023 Lords Chamber

[Baroness Kidron (CB)]

My Lords, I rise very briefly to support the amendments in the name of the noble Baroness, Lady Stowell, and the noble Lord, Lord Stevenson. Like other speakers, I put on record my support for the regulator being offered independence and Parliament having a role.

However, I want to say one very brief and minor thing about timing—I feel somewhat embarrassed after the big vision of the noble Baroness, Lady Stowell. Having had quite a lot of experience of code making over the last three years, I experienced the amount of time that the department was able to take in responding to the regulator as being a point of power, a point of lobbying, as others have said, and a point of huge distraction. For those of us who have followed the Bill for five years and as many Secretaries of State, we should be concerned that none of the amendments has quite tackled the question of time.

The idea of acting within a timeframe is not without precedent; the National Security and Investment Act 2021 is just one recent example. What was interesting about that Act was that the reason given for the Secretary of State’s powers being necessary was as a matter of national security—that is, they were okay and what we all agree should happen—but the reason for the time restriction was for business stability. I put it to the Committee that the real prospect of children and other users being harmed requires the same consideration as business stability. Without a time limit, it is possible that inaction can be used to control or simply fritter away.

[Lord Allan of Hallam (LD)]

My Lords, I will make a short contribution on this substantive question of whether concerns about ministerial overreach are legitimate. Based on a decade of being on the receiving end of representations from Ministers, the short answer is yes. I want to expand on that with some examples.

My experience of working on the other side, inside a company, was that you often got what I call the cycle of outrage: something is shared on social media that upsets people; the media write a front-page story about it; government Ministers and other politicians get involved; that then feeds back into the media and the cycle spins up to a point where something must be done. The “something” is typically that the Minister summons people, such as me in my old job, and brings them into an office. That itself often becomes a major TV moment, where you are brought in, browbeaten and sent out again with your tail between your legs, and the Minister has instructed you to do something. That entire process takes place in the political rather than the regulatory domain.

I readily concede that, in many cases, something of substance needed to be addressed and there was a genuine problem. It is not that this was illegitimate, but these amendments are talking about the process for what we should do when that outrage is happening. I agree entirely with the tablers of the amendments that, to the extent that that process can be encapsulated within the regulator rather than a Minister acting on an ad hoc basis, it would be a significant improvement.

I also note that this is certainly not UK-specific, and it would happen in many countries with varying degrees of threat. I remember being summoned to the Ministry of the Interior in Italy to meet a gentleman who has now sadly passed. He brought me into his office, sat me down, pointed to his desk and said “You see that desk? That was Mussolini’s desk”. He was a nice guy and I left with a CD of his rhythm and blues band, but it was clear that I was not supposed to say no to him. He made a very clear and explicit political direction about content that was on the platform.

One big advantage of this Bill is that it has the potential to move beyond that world. It could move from individual people in companies—the noble Baroness, Lady Stowell of Beeston, made this point very powerfully—to changing the accountability model away from either platforms being entirely accountable themselves or platforms and others, including Ministers, somehow doing deals that will have an impact, as the noble Baroness, Lady Fox, and the noble Viscount, Lord Colville, said, on the freedom of expression of people across the country. We do not want that.

We want to move on in the Bill and I think we have a model which could work. The regulator will take on the outrage and go as far as it can under the powers granted in the Bill. If the regulator believes that it has insufficient powers, it will come back to Parliament and ask for more. That is the way in which the system can and should work. I think I referred to this at Second Reading; we have an opportunity to create clear accountability. Parliament instructs Ofcom, which instructs the platforms. The platforms do what Ofcom says, or Ofcom can sanction them. If Ofcom feels that its powers are deficient, it comes back to Parliament. The noble Lord, Lord Stevenson, and others made the point about scrutiny and us continually testing whether Ofcom has the powers and is exercising them correctly. Again, that is entirely beneficial and the Government should certainly be minded to accept those amendments.

With the Secretary of State powers, as drafted in the Bill and without the amendments we are considering today, we are effectively taking two steps forward and one step back on transparency and accountability. We have to ask: why take that step back when we are able to rely on Ofcom to do the job without these directions?

The noble Baroness, Lady Stowell of Beeston, made the point very clearly that there are other ways of doing this. The Secretary of State can express their view. I am sure that the Minister will be arguing that the Secretary of State’s powers in the Bill are better than the status quo because at least what the Secretary of State says will be visible; it will not be a back-room deal. The noble Baroness, Lady Stowell of Beeston, has proposed a very good alternative, where the Secretary of State makes visible their intentions, but not in the form of an order—rather in the form of advice. The public—it is their speech we are talking about—then have the ability to see whether they agree with Ofcom, the companies or the Secretary of State if there is any dispute about what should happen.

It is certainly the case that visible instructions from the Secretary of State would be better, but the powers as they are still leave room for arm-twisting. I can imagine a future scenario in which future employees of these platforms are summoned to the Secretary of State. But now the Secretary of State would have a draft order sitting there. The draft order is Mussolini’s desk. They say to the people from the platforms, “Look, you can do what I say, or I am going to send an order to Ofcom”. That takes us back to this world in which the public are not seeing the kind of instructions being given.

I hope that the Government will accept that some amendment is needed here. All the ones that have been proposed suggest different ways of achieving the same objective. We are trying to protect future Secretaries of State from an unhealthy temptation to intervene in ways that they should not.

[Baroness Harding of Winscombe (Con)]

My Lords, on day eight of Committee, I feel that we have all found our role. Each of us has spoken in a similar vein on a number of amendments, so I will try to be brief. As the noble Lord, Lord Allan, has spoken from his experience, I will once again reference my experience as the chief executive, for seven years, of a business regulated by Ofcom; as the chair of a regulator; and as someone who sat on the court of, arguably, the most independent of independent regulators, the Bank of England, for eight years.

I speak in support of the amendments in the name of my noble friend Lady Stowell, because, as a member of the Communications and Digital Committee, my experience, both of being regulated and as a regulator, is that independent regulators might be independent in name—they might even be independent in statute—but they exist in the political soup. It is tempting to think that they are a sort of granite island, completely immovable in the political soup, but they are more like a boat bobbing along in the turbulence of politics.

As the noble Lord, Lord Allan, has just described, they are influenced both overtly and subtly by the regulated companies themselves—I am sure we have both played that game—by politicians on all sides, and by the Government. We have played these roles a number of times in the last eight days; however, this is one of the most important groups of amendments, if we are to send the Bill back in a shape that will really make the difference that we want it to. This group of amendments challenges whether we have the right assignment of responsibility between Parliament, the regulator, government, the regulated and citizens.

It is interesting that we—every speaker so far—are all united that the Bill, as it currently stands, does not get that right. To explain why I think that, I will dwell on Amendment 114 in the name of my noble friend Lady Stowell. The amendment would remove the Secretary of State’s ability to direct Ofcom to modify a draft of the code of practice “for reasons of public policy”. It leaves open the ability to direct in the cases of terrorism, child sexual abuse, national security or public safety, but it stops the Secretary of State directing with regard to public policy. The reason I think that is so important is that, while tech companies are not wicked and evil, they have singularly failed to put internet safety, particularly child internet safety, high enough up their pecking order compared with delivering for their customers and shareholders. I do not see how a Secretary of State will be any better at that.

Arguably, the pressures on a Secretary of State are much greater than the pressures on the chief executives of tech companies. Secretaries of State will feel those pressures from the tech companies and their constituents lobbying them, and they will want to intervene and feel that they should. They will then push that bobbing boat of the independent regulator towards whichever shore they feel they need to in the moment—but that is not the way you protect people. That is not the way that we treat health and safety in the physical world. We do not say, “Well, maybe economics is more important than building a building that’s not going to fall down if we have a hurricane”. We say that we need to build safe buildings. Some 200 years ago, we were having the same debates about the physical world in this place; we were debating whether you needed to protect children working in factories, and the consequences for the economics. Well, how awful it is to say that today. That is the reality of what we are saying in the Bill now: that we are giving the Secretary of State the power to claim that the economic priority is greater than protecting children online.

I am starting to sound very emotional because at the heart of this is the suggestion that we are not taking the harms seriously enough. If we really think that we should be giving the Secretary of State the freedom to direct the regulator in such a broad way, we are diminishing the seriousness of the Bill. That is why I wholeheartedly welcome the remark from the noble Lord, Lord Stevenson, that he intends to bring this back with the full force of all of us across all sides of the Committee, if we do not hear some encouraging words from my noble friend the Minister.

--- Later in debate ---

[Lord Farmer (Con)]

My Lords, I support the noble Baroness, Lady Benjamin, in bringing the need for consistent regulation of pornographic content to your Lordships’ attention and have added my name in support of Amendment 185. I also support Amendments 123A, 142, 161, 183, 184 and 306 in this group.

There should not be separate regimes for how pornographic content is regulated in this country. I remember discussions about this on Report of the Digital Economy Bill around six years ago. The argument for not making rules for the online world consistent with those for the offline world was that the CPS was no longer enforcing laws on offline use anyway. Then as now, this seems simply to be geared towards letting adults continue to have unrestricted access to an internet awash with pornographic material that depicts and/or promotes child sexual abuse, incest, trafficking, torture, and violent or otherwise harmful sexual acts: adult freedoms trumping all else, including the integrity of the legal process. In the offline world, this material is illegal or prohibited for very good reason.

The reason I am back here, arguing again for parity, is that, since 2017, an even deeper seam of academic research has developed which fatally undermines the case for untrammelled cyber-libertarianism. It has laid bare the far-reaching negative impacts that online pornography has had on individuals and relationships. One obvious area is the sharp rise in mental ill-health, especially among teenagers. Research from CEASE, the Centre to End All Sexual Exploitation, found that over 80% of the public would support new laws to limit free and easy access.

Before they get ensnared—and some patients of the Laurel Centre, a private pornography addiction clinic, watch up to 14 hours of pornography a day—few would have been aware that sexual arousal chained to pornography can make intimate physical sex impossible to achieve. Many experience pornography-induced erectile dysfunction and Psychology Today reports that

“anywhere from 17% to 58% of men who self-identify as heavy/compulsive/addicted users of porn struggle with some form of sexual dysfunction”.

As vice-chair of the APPG on Issues Affecting Men and Boys, I am profoundly concerned that very many men and boys are brutalised by depictions of rape, incest, violence and coercion, which are not niche footage on the dark web but mainstream content freely available on every pornography platform that can be accessed online with just a few clicks.

The harms to their growing sons, which include an inability to relate respectfully to girls, should concern all parents enough to dial down drastically their own appetite for porn. There is enormous peer pressure on teenage boys and young men to consume it, and its addictive nature means that children and young people, with their developing brains, are particularly susceptible. One survey of 14 to 18 year-olds found almost a third of boys who used porn said it had become a habit or addiction and a third had enacted it. Another found that the more boys watched porn and were sexually coercive, the less respect they had for girls.

Today’s headlines exposed the neurotoxins in some vaping products used by underage young people. There are neurotoxins in all the porn that would be caught by subsection 368E(2) of the Communications Act 2003, if it was offline—hence the need for parity and, just like the vapes, children as well as adults will continue to be exposed. Trustworthy age verification will stop children stumbling across it or finding it in searches, but adults who are negligent, or determined to despoil children’s innocence, will facilitate their viewing it if it remains available online. This Bill will not make the UK the safest place in the world for children online if we continue to allow content that should be prohibited, for good reason, to flood into our homes.

Helen Rumbelow, writing in the Times earlier this month, said the public debate—the backdrop to our own discussions in this Bill—is “spectacularly ill-informed” because we only talk about porn’s side-effects and not what is enacted. So here goes. Looking at the most popular pages of the day on Pornhub, she found that 12 out of 32 showed men physically abusing women. One-third of these showed what is known as “facial abuse”, where a woman’s airway is blocked by a penis: a porn version of waterboarding torture. She described how

“in one a woman is immobilised and bound by four straps and a collar tightened around her neck. She ends up looking like a dead body found in the boot of a car. In another a young girl, dressed to look even younger in a pair of bunny ears and pastel socks, is held down by an enormous man pushing his hand on her neck while she is penetrated. The sounds that came from my computer were those you might expect from a battle hospital: cries of pain, suction and “no, no, no”. I won’t tell you the worst video I saw as you may want to stop reading now. I started to have to take breaks to go outside and look at the sky and remember kindness”.

Turning briefly to the other amendments, I thank my noble friend Lord Bethell for his persistence in raising the need for the highest standard of age verification for pornography. I also commend the noble Baroness, Lady Kidron, for her continued commitment to protecting children from harmful online content and for representing so well the parents who have lost children, in the most awful of circumstances, because of online harms. I therefore fully support the package of amendments in this group tabled by the noble Baroness, Lady Kidron, and my noble friend Lord Bethell.

This Bill should be an inflection point in history and future generations will judge us on the decisions we make now. It is highly like they will say “Shame on them”. To argue that we cannot put the genie back in the bottle is defeatist and condemns many of our children and grandchildren to the certainty of a dystopic relational future. I say “certain” because it is the current reality of so many addicted adults who wish they could turn back the clock. Therefore, it is humane and responsible, not quaint or retrogressive, to insist that this Government act decisively to make online and offline laws consistent and reset the dial.

[Lord Allan of Hallam (LD)]

My Lords, I will speak to my Amendment 232, as well as addressing issues raised more broadly by this group of amendments. I want to indicate support from these Benches for the broader package of amendments spoken to so ably by the noble Baroness, Lady Kidron. I see my noble friend Lord Clement-Jones has returned to check that I am following instructions during my temporary occupation of the Front Bench.

The comments I will make are going to focus on an aspect which I think we have not talked about so much in the debate, which is age assurance in the context of general purpose, user-to-user and search services, so-called Part 3, because we like to use confusing language in this Bill, rather than the dedicated pornography sites about which other noble Lords have spoken so powerfully. We have heard a number of contributions on that, and we have real expertise in this House, not least from my noble friend Lady Benjamin.

In the context of age assurance more generally, I start with a pair of propositions that I hope will be agreed to by all participants in the debate and build on what I thought was a very balanced and highly informative introduction from the noble Baroness, Lady Kidron. The first proposition is that knowledge about the age of users can help all online platforms develop safer services than they could absent that information—a point made by the right reverend Prelate the Bishop of Oxford earlier. The second is that there are always some costs to establishing age, including to the privacy of users and through some of the friction they encounter when they wish to use a service. The task before us is to create mechanisms for establishing age that maximise the safety benefits to users while minimising the privacy and other costs. That is what I see laid out in the amendment that the noble Baroness, Lady Kidron, has put before us.

My proposed new clause seeks to inform the way that we construct that balance by tasking Ofcom with carrying out regular studies into a broad range of approaches to age assurance. This is exactly the type of thinking that is complementary to that in Amendment 142; it is not an alternative but complementary to it. We may end up with varying views on exactly where that balance should be struck. Again, I am talking about general purpose services, many of which seek to prohibit pornography—whether they do so 100%, it is a different set of arguments from those that apply to services which are explicitly dedicated to pornography. We may come to different views about where we eventually strike the balance but I think we probably have a good, shared understanding of the factors that should be in play. I certainly appreciate the conversations I have had with the noble Baroness, Lady Kidron, and others about that, and think we have a common understanding of what we should be considering.

If we can get this formulation right, age assurance may be one of the most significant measures in the Bill in advancing online safety, but if we get it wrong, I fear we may create a cookie banner scenario, such as the one I warned about at Second Reading. This is my shorthand for a regulatory measure that brings significant costs without delivering its intended benefits. However keen we are to press ahead, we must always keep in mind that we do not want to create legislation that is well-intended but does not have the beneficial effect that we all in this Committee want.

Earlier, the noble Baroness, Lady Harding, talked about the different roles that we play. I think mine is to try to think about what will actually work, and whether the Bill will work as intended, and to try to tease out any grit in it that may get in the way. I want in these remarks to flag what I think are four key considerations that may help us to deliver something that is actually useful and avoid that cookie banner outcome, in the context of these general purpose, Part 3 services.

First, we need to recognise that age assurance is useful for enabling as well as disabling access to content—a point that the noble Baroness, Lady Kidron, rightly made. We rightly focus on blocking access to bad content, but other things are also really important. For example, knowing that a user is very young might mean that the protocol for the reporting system gets to that user report within one hour, rather than 24 hours for a regular report. Knowing that a user is young and is being contacted by an older user may trigger what is known as a grooming protocol. Certainly at Facebook we had that: if we understood that an older user was regularly contacting younger users, that enabled us to trigger a review of those accounts to understand whether something problematic was happening—something that the then child exploitation and online protection unit in the UK encouraged us to implement. A range of different things can then be enabled. The provision of information in terms that a 13 year-old would understand can be triggered if you know the age of that user.

Equally, perfectly legitimate businesses, such as alcohol and online gambling businesses, can use age assurance to make sure that they exclude people who should not be part of that. We in this House are considering measures such as junk food advertising restrictions, which again depend on age being known to ensure that junk food which can be legitimately marketed to older people is not marketed to young people. In a sense, that enables those businesses to be online because, absent the age-gating, they would struggle to meet their regulatory obligations.

Secondly, we need to focus on outcomes, using the risk assessment and transparency measures that the Bill creates for the first time. We should not lose sight of those. User-to-user and search services will have to do risk assessments and share them with Ofcom, and Ofcom now has incredible powers to demand information from them. Rather than asking, “Have you put in an age assurance system?”, we can ask, “Can you tell us how many 11 year-olds or 15 year-olds you estimate access the wrong kind of content?”, and, “How much pornography do you think there is on your service despite the fact that you have banned it?” If the executives of those companies mislead Ofcom or refuse to answer, there are criminal sanctions in the Bill.

The package for user-to-user and search services enables us to really focus on those outcomes and drill down. In many cases, that will be more effective. I do not care whether they have age-assurance type A or type B; I care whether they are stopping 99.9% of 11 year-olds accessing the wrong kind of content. Now, using the framework in the Bill, Ofcom will be able to ask those questions and demand the answers, for the first time ever. I think that a focus on outcomes rather than inputs—the tools that they put in place—is going to be incredibly powerful.