Online Safety Bill

Lord Allan of Hallam Excerpts

Committee stage
Tuesday 23rd May 2023 Lords Chamber

Therefore, using big business money, in this instance, as a weapon to dictate editorial content shows that press freedom is on the line in a variety of ways. Women arguing for protecting single-sex sport, and then being subject to vile misogyny, themselves being described as using transphobic hate speech shows me, at least, that in the name of fighting hate we should not have any attempts to assault press freedom. I will oppose all three of these amendments.

[Lord Allan of Hallam (LD)]

My Lords, I support Amendment 227 in particular. I am pleased to contribute, as someone who gave evidence to the Leveson inquiry, explaining why social media should not be in scope for any new press regulation scheme. It is entertaining for me now to come through the looking glass and listen to the noble Lords, Lord Black of Brentwood and Lord Faulks, in particular making the kinds of argument I made then, as we discuss whether the press should be in scope for a new social media regulatory scheme.

These amendments are a helpful way to test how the Government expect their decision to afford certain privileges for online activity by journalists and news publishers to work. That is what the regime does, in effect, with the rationale, which was explained to us, that this is why certain bodies can be privileged when using user-to-user services and search engines in a way that, if they were not afforded that status, they would not be given those privileges. Again, it is noteworthy that there has often been criticism of social media precisely for giving special treatment to some users, including in stories in some of the press that we are talking about, and here we are creating not just a state sanction but a state-ordered two-tier system that all the social media companies will now have to adopt. That creates some interesting questions in itself.

I want to press the Minister primarily on definitions. It is certainly my experience that definitions of who is a journalist or a news media publisher are challenging and can be highly political. There have been several pressure points, pushing social media companies to try to define journalists and news publishers for themselves, outside of any regulatory scheme—notably following the disputes about misinformation and disinformation in the United States. The European Union also has a code of practice on misinformation and disinformation. Every time someone approaches this subject, they ask social media companies to try to distinguish journalists and news media from other publishers. So these efforts have been going on for some time, and many of them have run into disputes because there is no consistent agreement about who should be in or outside those regimes. This is one of those problems that seems clear and obvious when you stand back from it, but the more that you zoom in, the more complex and messy it becomes. We all say, “Oh yes, journalists and news publishers—that is fine”, and we write that in the legislation, but, in practice, it will be really hard when people have to make decisions about individuals.

Some news organisations are certainly highly problematic. Most terrorist organisations have news outlets and news agencies. They do not advertise themselves as such but, if you work in a social media platform, you have to learn to distinguish them. They are often presented entirely legitimately, and some of the information that you use to understand why they are problematic may be private, which creates all sorts of problems. Arguably, this is the Russia Today situation: it presented itself as legitimate and was registered with Ofcom for a period of time; we accepted that it was a legitimate news publisher, but we changed our view because we regard the Russian Government as a terrorist regime, in some senses. That is happening all of the time, with all sorts of bodies across the world that have created these news organisations. In the Middle East in particular, you have to be extraordinarily careful—you think that something is a news organisation but you then find that it has a Hezbollah connection and, there you go, you have to try to get rid of it. News organisations tied to extremist organisations is one area that is problematic, and my noble friend referred to it already.

There is also an issue with our domestic media environment. Certainly, most people would regard Gary Lineker as a journalist who works for a recognised news publisher—the BBC—but not everyone will agree with that definition. Equally, most people regard the gentleman who calls himself Tommy Robinson as not being a journalist; however much he protests that he is in front of judges and others, and however much support he has from recognised news publishers in the United States, most people would say that he is not a journalist. The community of people who agree that Gary Lineker is not a journalist and that of people who think that Tommy Robinson is not a journalist do not overlap much, but I make the point that there is continually this contention about individuals, and people have views about who should be in or out of any category that we create.

This is extraordinarily difficult, as in the Bill we are tasking online services with a very hard job. In a few lines of it, we say: “Create these special privileges for these people we call journalists and news publishers”. That is going to be really difficult for them to do in practice and they are going to make mistakes, either exclusionary or inclusionary. We are giving Ofcom an incredibly difficult role, which is why this debate is important, because it is going to have to adjudicate when that journalist or news publisher says to Ofcom: “I think this online platform is breaching the Online Safety Act because of the way it treated me”. Ofcom is going to have to take a view about whether that organisation or individual is legitimate. Given the individuals I named, you can bet your bottom dollar that someone is going to go to Ofcom and say, “I don’t think that Gary Lineker or the BBC are legitimate”. That one should be quite easy; others across the spectrum will be much more difficult for it to deal with.

That is the primary logic underlying Amendment 227: we have known unknowns. There will be unanticipated effects of this legislation and, until it is in place and those decisions are being made, we do not know how it will work. Frankly, we do not know whether, as a result of legal trickery and regulatory decisions, we have inadvertently created a loophole where some people will be able to go and win court cases by claiming protections that we did not intend them to have. I disagree with the noble Lord, Lord Black: I do not think Amendment 227 undermines press freedom in any sense at all. All it does is to say: “We have created an Online Safety Bill. We expect it to enhance people’s safety and within it we have some known unknowns. We do not know how this exemption is going to work. Why not ask Ofcom to see if any of those unintended consequences happen?”

I know that we are labouring our way through the Online Safety Bill version 1, so we do not want to think about an online safety Bill version 2, but there will at some point have to be a revision. It is entirely rational and sensible that, having put this meaningful exemption in there—it has been defended, so I am sure that the Government will not want to give it up—the least we can do is to take a long, hard look, without interfering with press freedom, and get Ofcom to ask, “Did we see those unintended consequences? Do we need to look at the definitions again?”

[Baroness Stowell of Beeston (Con)]

My Lords, the noble Lord, Lord Allan, has clearly and comprehensively painted a picture of the complex world in which we now live, and I do not think that anybody can disagree with that or deny it. We are in a world which is going to keep evolving; we have talked in lots of other contexts about the pace of change, and so on. However, in recognising all that, what the noble Lord has just described—the need for constant evaluation of whether this regime is working effectively—is a job for Parliament, not for Ofcom. That is where I come back to in starting my response to this group of amendments.

Briefly—in order that we can get to the wind-ups and conclude business for the day—ensuring that recognised news publishers and organisations are not subject to Ofcom or any form of state regulation is a vital principle. I am pleased that the Government have included the safeguards which they have in the legislation, while also making it much harder for the tech platforms to restrict the freedom of recognised news publishers and users’ access to them.

I reiterate that I understand that this is becoming increasingly complicated, but these are important principles. We have to start in the world that we currently understand and know, ensure that we protect those publications which we recognise as trusted news providers now, and do not give way on those principles. As my noble friend Lord Black said, regarding debates about Section 40 of the Crime and Courts Act, there will be an opportunity to re-evaluate that in due course when we come to the media Bill. For what it is worth, my personal view is that I support the Government’s intention to remove it.

--- Later in debate ---

[Lord Allan of Hallam (LD)]

I think it is actually quite important that there is—to use the language of the Bill—a risk assessment around the notion that people might game it. I thought the noble Baroness, Lady Gohir, made a very good point. People are very inventive and, if you have ever engaged with the people who run some of those big US misinformation sites—let us just call them that—you will know that they have very inventive, very clever people. They will be looking at this legislation and if they figure out that by opening a UK office and ticking all the boxes they will now get some sorts of privileges in terms of distributing their misinformation around the world, they will do it. They will try it, so I certainly think it is worth there being at least some kind of risk assessment against that happening.

In two years’ time we will be able to see whether the bad thing happened, but whether or not it is the Minister having a conversation with Ofcom now, I just think that forewarned is forearmed. We know that that is a possibility and it would be helpful for some work to be done now to make sure that that is not a loophole that none of us want, I think.

[Lord Parkinson of Whitley Bay (Con)]

I am mindful of the examples the noble Lord gave in his speech. Looking at some of the provisions set out in subsection (2) about a body being

“subject to a standards code”

or having

“policies and procedures for handling and resolving complaints”,

I think on first response that those examples he gave would be covered. But I will certainly take on board the comments he made and those the noble Baroness, Lady Gohir, made as well and reflect on them. I hope—