Online Harms

Lord Ashton of Hyde Excerpts

Monday 8th April 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, with the leave of the House, I would like to repeat a Statement made by my right honourable friend the Secretary of State for Digital, Culture, Media and Sport, in the other place recently, as follows:

“The Government have today published a White Paper setting out our proposals to make the internet a safer place. For so many people, the internet is an integral part of daily life. Nearly nine in 10 UK adults are online and, significantly, 99% of 12 to 15 year-olds are too. As the internet continues to grow and transform our lives, we need to think carefully about how we want it to develop. In many ways it is a powerful force for good. It can forge connections, share knowledge and spread opportunity across the world, but it can also be used to circulate terrorist material, undermine civil discourse, spread disinformation and abuse, or bully. Our challenge as a society is to help shape an internet that is open and vibrant, but which also protects its users from harm. There is clear evidence that we are not succeeding. Over 8,000 sexual offences against children with an online element were reported to the police in 2017, a figure that is continuing to rise. Up to 20% of young people in the UK have experienced bullying online. The White Paper sets out many, many more examples of harms suffered.

People are closing their social media accounts following unacceptable online abuse. For the vulnerable, online experiences can mean cyberbullying, exposure to abusive content and the risk of grooming and exploitation. We cannot allow this behaviour to undermine the very real benefits that the digital revolution can bring. If we surrender our online spaces to those who spread hate, abuse and fear, then we all lose. This is a serious situation and it requires a serious response.

The Government have taken time to consider what we might do and how we might do it. I am grateful to Members across the House and indeed in the other place for their consideration of these issues, in particular the DCMS Select Committee. I am grateful too for the discussions I have had, including with the honourable gentleman opposite and his Front-Bench colleagues. We intend to continue these conversations and to consult on what we propose, because it is vital we get this right. No one has done it before. There is no comprehensive international model to follow and there are important balances to strike in sustaining innovation in the digital economy and promoting freedom of speech as well as reducing harm. None of that is straightforward and the Government should not claim a monopoly of wisdom. That is why the consultation which will follow will be a genuine opportunity for Members of this House and others to contribute to these proposals.

It is also right to recognise that some work is already being done to make the internet a safer place, including by online companies themselves, but it has not been enough and it has been too reactive. It can no longer be right to leave online companies to decide for themselves what action should be taken, as some of them are beginning to recognise. That is why my right honourable friend the Home Secretary and I concluded that the Government must act, and that the era of self-regulation of the internet must end, so the Government will create a new statutory duty of care, establishing in law that online companies have a responsibility for the safety of their users. It will require companies to do what is reasonable to prevent harmful material reaching those users. Compliance will be overseen and enforced by an independent regulator.

The White Paper sets out expectations for the steps that companies should take to fulfil the duty of care towards their users. We expect the regulator to reflect these expectations in new codes of practice. In the case of the most serious harms—such as child sexual exploitation and abuse, and the promotion of terrorism—the Home Secretary will need to approve these codes of practice and also have the power to issue directions to the regulator about their content. The Home Office will publish interim codes of practice on these subjects later this year, and we are consulting about the role that Parliament should have in relation to these codes too.

If online companies are to persuade the regulator that they are meeting their duty of care to keep their users safe, there will need to be transparency about what is happening on their platforms and what they are doing about it. If they are unwilling to provide the necessary information voluntarily, the regulator will have the power to require annual transparency reports and to demand information from companies relating to the harms on their platforms.

It is also important to give users a voice in this system, so they can have confidence that their concerns are being treated fairly, so we will expect companies to have an effective and easy-to-access complaints function, and we are consulting on two further questions: how we can potentially provide users with an independent review mechanism, and how we might allow designated bodies to make ‘super complaints’ to defend the needs of users.

For a duty-of-care-based model to work, those subject to it must be held to account for how they fulfil that duty. That is why we have concluded that a regulator will be necessary, whether a new entity or an extension of the responsibilities of an existing regulatory body. The regulator must be paid for by the online companies, but it is essential that it commands public confidence in its independence, its impartiality and its effectiveness. To ensure that the regulatory framework remains effective within this fast-changing landscape, we believe it is right to define its scope by activity, not by the name of the company or even the type of company.

We propose that the scope of the regulatory framework will be companies that allow users to share or discover user-generated content, or interact with each other online. This includes a wide variety of organisations, both big and small, from a range of sectors. The new regulatory regime will need to be flexible enough to operate effectively across them all. There are two key principles to such an approach. The first is that the regulator will adopt a risk-based approach, prioritising regulatory action to tackle harms that have the greatest impact on individuals or wider society. The second factor is proportionality. The regulator will require companies to take reasonable and proportionate actions to tackle harms on their services, taking account of their size and resources. The regulator will expect more of global giants than small start-ups.

It is also necessary for the regulator to have sufficient teeth to hold companies to account when they are judged to have breached their statutory duty of care. That will include the power to serve remedial notices and to issue substantial fines, and we will consult on even more stringent sanctions, including senior management liability and the blocking of websites, but this is a regulatory approach designed to encourage good behaviour as well as punish bad behaviour. Just as technology has created the challenges we are addressing here, technology will provide many of the solutions—for example, in the identification of terrorist videos online and images of child sexual abuse, or in new tools to identify online grooming. The regulator will have broader responsibilities to promote the development and adoption of these technologies and to promote safety by design.

The truth is that, if we focus only on what the Government or the online companies do, we miss something important. We all need the skills to keep ourselves safe online and too few of us feel confident that we have them, so we will task the regulator to work on promoting those skills and we will develop a national media literacy strategy.

This White Paper does not aspire to deal with all that is wrong with the internet—no single piece of work could sensibly do so. It forms part of the Government’s response to the many challenges the online world brings. But it is focused on some of the most pernicious harms found online and it expects much more of the companies that operate there in tackling those harms. These are big steps, but they need to be taken.

Some say the internet is global so no country can act alone, but I believe we have both a duty to act to protect UK citizens and an opportunity to lead the world on this. With well-deserved worldwide reputations for fostering innovation and respect for the rule of law, the United Kingdom is well placed to design a system of online regulation that the world will want to emulate. The more we do online, the less acceptable it is that content which is controlled in any other environment is not controlled online.

A safer internet is in the interests of responsible online companies that want their customers to spend more time online, and is a legitimate expectation of those we represent. That is what this White Paper will deliver and I commend it and this Statement to the House”.

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[Lord Clement-Jones (LD)]

My Lords, we, too, on these Benches welcome the fact that the Government’s proposals have come forward today, and we support the placing of a statutory duty of care on social media companies. We agree that the new arrangements should apply to any sites,

“that allow users to share or discover user-generated content, or interact with each other online”.

We think that is a fair definition.

We are all aware of the benefits of social media networks and the positive role they can play. There is, however, far too much illegal content and harmful activity on social media that goes undealt with by social media platforms and creates social harm. The self-harming material on Instagram and the footage of the Christchurch killings are perhaps the most recent examples.

Proper enforcement of existing laws is, of course, vital to protect users from harm, but, as the White Paper proposes, social media companies should have a statutory duty of care to their users—above all, to children and young people—and, as I say, we fully support the proposed duty of care. It follows that, through the proposed codes, Parliament and Government have an important role to play in defining that duty clearly. We cannot leave it to big private tech firms, such as Facebook and Twitter, to decide the acceptable bounds of conduct and free speech on a purely voluntary basis, as they have been doing to date.

It is good that the Government recognise the dangers that exist online and the inadequacy of current protections. However, regulation and enforcement must be based on clear evidence of well-defined harm, and must respect the rights to privacy and free expression of those who use social media legally and responsibly. I welcome the Government’s stated commitment to these two aspects.

We also very much welcome the Government’s adherence to the principle of regulating on a basis of risk and proportionality when enforcing the duty of care and drawing up the codes. Will the codes, as the Lords Communications Committee called for, when exercising powers of oversight, set out clearly the distinction between criminal, harmful content and antisocial content? By the same token, upholding the right to freedom of expression does not mean a laissez-faire approach. Does the Minister agree that bullying and abuse prevent people expressing themselves freely and must be stamped out? Will there be a requirement that users must be able to report harmful or illegal content to platforms and have their reports dealt with appropriately, including being kept informed of the progress and outcome of any complaint?

Similarly, there must be transparency about the reasons for decisions and any enforcement action, whether by social media companies or regulators. Users must have the ability to challenge a platform’s decision to ban them or remove their content. We welcome the proposed three-month consultation period; indeed, I welcome the Government’s intention to achieve cross-party consensus on the crucial issue of regulating online harms. I agree that with a national consensus we could indeed play an international leadership role in this area.

Then we come to the question of the appropriate regulator to enforce this code and duty. Many of us assumed that this would naturally fall to Ofcom, with its experience and expertise, particularly in upholding freedom of speech. If it is not to be Ofcom, with all its experience, what criteria will be used in determining what new or existing body will be designated? The same appears to me to apply to the question of whether the ICO is the right regulator for the algorithms used by social media. I see that the Home Office will be drawing up certain codes. Who will be responsible for the non-criminal codes? Have the Government considered the proposals by Doteveryone and the Lords Communications Select Committee for a new “Office for Internet Safety” as an advisory body to analyse online harms, identify gaps in regulation and enforcement and recommend new regulations and powers to Parliament?

At the end of the day, regulation alone cannot address all these harms. As the noble Baroness, Lady Kidron, has said, children have the right to a childhood. Schools need to educate children about how to use social media responsibly and be safe online, as advocated by the PSHE Association and strongly supported by my party. Parents must be empowered to protect their children through digital literacy, advice and support. I very much hope that that is what is proposed by the online media literacy strategy.

At the end of the day, we all need to recognise that this kind of regulation can only do so much. We need a change of culture among the social media companies. They should be proactively seeking to prevent harm. The Government refer to a culture of continuous improvement being a desired goal. We on these Benches thoroughly agree that that is vital.

[Lord Ashton of Hyde]

My Lords, I am very grateful for the welcome by both noble Lords for this White Paper. Nevertheless, I am not complacent; I have worked with noble Lords opposite on several big Bills on digital matters and I know there is a lot of detail that will need to be included in the legislation. However, the principle that this is generally welcome and the fact that the main bones of the proposal are welcome—namely, the duty of care and the independent regulator—is good. We have made a point of saying that we want to work on a cross-party, consensual basis and one of the reasons for having an extensive consultation is to achieve that. In some ways, this is an old-fashioned way of making legislation, to the extent that we have had a Green Paper and a consultation, then a White Paper and a consultation: we hope that a lot of the issues can be ironed out, and some of the detail. The way we worked on the Digital Economy Act and the Data Protection Act shows that we can bring in some fairly big and complicated Bills in a consensual way.

The noble Lord, Lord Griffiths, talked about children. They are very important to our thinking. We have not written a specific chapter on the subject because we want it hard-wired throughout the whole White Paper. From the day the regulator is formed, any company in scope will have to say that it is thinking about the customers and users of its products in the design of its website and products means that it will have to, as part of its duty of care, think about the age, vulnerability and sort of people who will use it. That is built into the system.

We thought a lot about the international aspects of regulating the internet, because there is no point having a regulator or enforcement system that cannot cope with the way the internet works, which is, by definition, international. We will therefore think and consult on some of the further sanctions we could put on internet companies, such as individual liability. We might require representatives in the country in the same way as the GDPR does. Ultimately, we are consulting on whether we should take powers to block websites completely. These are, in the main, money-making organisations—Google’s second-largest advertising market is in this country, for example. The internet giants have significant economic stakes in this country, and they could be faced with a very serious penalty.

Above all, we are not expecting the internet companies, large or small, to do anything unreasonable. Some appalling things go on the internet, and the regulator will look at the duty of care—as said in the Statement—as a risk-based and proportionate approach. The big internet giants will be held to a different standard from the small start-ups.

Both noble Lords talked about the regulator. There is a possibility that an existing regulator could either take on this job or create the regulator which may be divested later. We are consulting on that, and would be interested in the views of noble Lords and other stakeholders. It is important to bear in mind that time is of the essence. We want to get on with this. We want to get it right—but we want to get a move on.

The noble Lord, Lord Clement-Jones, talked about some of the harms that are not just illegal. We absolutely agree. In some ways, the harms that are illegal are easy to deal with—they are illegal, and should be so offline as well as online—but things that are not specifically illegal, such as cyberbullying, can have a tremendous effect on people’s lives. We certainly take those into account. The internet companies will have to take a reasonable and balanced approach; they need to show that they are taking seriously harms that can really affect people’s lives, and that they are building their approach to them into the way they operate their companies. Terms and conditions should be met and abided by; there should be a proper complaints procedure, which we will demand be taken seriously, and there will be an appeals process.

The consultation actually started today. We have so far got eight responses. It will go on for three months, after which we will look at it. As I say, noble Lords are very welcome to contribute.

Finally, the noble Lord, Lord Clement-Jones, talked about a change of culture. I think the noble Lord, Lord Griffiths, implied the same thing. The point about this White Paper is that we are moving to a proactive system of regulation where we expect every company, be it large or small, to think in a proportionate way about the harms it could do and to take sensible measures not only to deal with them but to explain to the regulator what it is doing and to have transparent reporting. The regulator will be given powers to inquire of the internet companies what they are doing about these matters.

[Baroness O'Neill of Bengarve (CB)]

My Lords, I too welcome this White Paper. We have heard it heralded from the Front Bench week after week, and it is great to see it arrive. However, it deals with only part of the problem. That is, it is a paper about the private harms that may be done—for example, by cyberbullying, fraud or extremist material. All of those matter, but there is another set of harms: harms to public goods, democracy, culture and the standards of the media. The Digital, Culture, Media and Sport Committee in the other place recently had an interesting report on disinformation and fake news which discussed some of those harms—including those which I can loosely indicate by referring to the Cambridge Analytica scandal.

We are beginning to understand that there are people campaigning within democracies that our regulation cannot reach. The electoral commissioner cannot reach those harms. Is the proposal to reach those harms as well, or is that for another day? I fear that if we do not deal with those harms relatively soon, we will regret it. Political campaigning may be undertaken not only by legitimate, registered political parties and individuals, but also by non-citizens, other states, businesses and the security apparatuses of other states. I believe these public, online harms to democracy should be of the utmost concern to us, but they are little discussed in this White Paper.

[Lord Ashton of Hyde]

My Lords, I agree that those are serious issues and need to be addressed. We have made it clear in the White Paper the harms that are in scope, but have also been very open about those that are not. We have said that we are addressing some of the really serious issues on the internet which the noble Baroness describes as private harms. We have said that we cannot deal with everything, but we are dealing with matters such as disinformation and potential assaults on democracy. We do not want to duplicate within one big White Paper, followed by legislation, all the harms connected to the internet. We have said that we are not dealing with competition law, intellectual property violation, fraud, data protection and so on, but I absolutely accept that they are very important issues. The Cabinet Office is due to report on them soon, and it is right that that department, which has responsibility for the constitution, should be dealing with it. We have not neglected those problems.

[Baroness Neville-Rolfe (Con)]

My Lords, as a former Digital Minister I came to the conclusion some time ago that we need some regulation to reduce online harm, rather in the spirit of the Health and Safety at Work etc. Act, which now has very wide support across the House. I welcome the White Paper. I had almost got to the point of tabling a Private Member’s Bill on duty of care, because time was passing.

My noble friend has kindly already answered my first question, which was about breadth. Like the noble Baroness, Lady O’Neill, I am very interested in some of these wider harms, such as fraud, which affects millions online every year. My second question is whether there will there be a business impact assessment on some of this. I would encourage that, as these normally have cross-party support—although perhaps not today.

My final question is on the penalties. I cannot find them on a quick read, but the Secretary of State was talking in quite red-blooded terms this morning about fines of 4% of global turnover, prosecution of directors, and so on. That seems quite over the top, especially if you have a very strong regulator. We need to make sure that we do not chill future digital growth in the UK as people in small businesses—which the Minister helpfully referenced—and large businesses may take too risk-averse an approach. We will need to debate that when the Bill comes to the House.

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[Lord Ashton of Hyde]

My noble friend has a long-standing interest in small and medium-sized businesses. The White Paper says categorically that the regulator will have a duty to promote innovation and to take account of small businesses. We expect it to be proportionate, which means, as I said, that large companies will be held to a different—although always reasonable—standard from that for small start-ups; for example, we expect that, as in financial services, the regulator will have a regulatory sandbox that small start-ups could work in.

As far as the penalties are concerned, we absolutely want to have the ability to hold the largest companies to account. That means the potential of serious penalties. My noble friend talked about 4% of global turnover. That would be a direct copy-over from the GDPR. We have not said that. We are consulting about some of the further, more serious penalties, such as holding individual directors to civil or criminal liability personally, but that is something that we would want to talk about. We would be interested in hearing my noble friend’s views on that. We want serious potential penalties but we want the regulator to be proportionate in their use.

[The Lord Bishop of London]

My Lords, I add my voice to those of my friends, the right reverend Prelates who sit on these Benches, who have welcomed this White Paper as a first step. Many of the platforms that would fall under the proposed regulator are based overseas. I hope that the proposals set out in the White Paper will give sufficient power to any regulator to hold these and future international companies to account.

[Lord Ashton of Hyde]

The right reverend Prelate is right that holding international companies to account is absolutely crucial, as I think I said before. There are limits to that, obviously, but some of the methods that we are consulting on—ultimately leading to closing the website down completely—are pretty serious, particularly for the large companies. We absolutely understand that. In addition, we want to continue to work with our international partners, such as the G7, the G20, and those countries that share our views on freedom of speech and on balancing that with controlling and dealing with the worst harms. We want a free and vibrant internet but we do not want the harms that go with it. I absolutely take his point, and we will listen to what people have to say about the correct means of holding international companies to account, but it is crucial that we are able to do that. I can tell noble Lords that we have now had 50 responses to the consultation.

[Lord Harris of Haringey (Lab)]

My Lords, like most of your Lordships, I think, I welcome this White Paper, because it has taken us forward in a sensible and thought-through way. However, first, I am slightly confused in relation to the question posed by the noble Baroness about how seriously and where the Government are taking on board issues which are about the undermining of democracy. They are flagged up early in the White Paper, in paragraph 4, but then there is a vague section about leaving it to the regulator and having a code of conduct. That may be a valuable approach but should the Government not be taking action directly on such matters? For example, Sweden has produced a counterinfluence handbook designed specifically for these purposes. What are the Government’s intentions as far as that is concerned?

Secondly, the Minister said that time was of the essence so we are going through a three-month consultation process. Is the intention that there be legislation in the next parliamentary Session, whenever that may start? Thirdly and finally—I refer to my interests in the register on this—how are the Government planning to deal with adverts on the internet which are designed to be misleading? How will they deal with scammers who are on the internet?

[Lord Ashton of Hyde]

My Lords, with regard to disinformation connected with democracy and those essential questions, the White Paper deals with disinformation generally. With regard to electoral reform and how elections can be affected by the use of the internet, as I said, the Cabinet Office is bringing out a report soon to deal with that. It is right that constitutional affairs are dealt with there.

On disinformation, we have listed in the White Paper some of the areas we expect the regulator to include, such as:

“Promoting diverse news content … Improving the transparency of political advertising”—


noble Lords can read it themselves; there are other things. That is how we are trying to do it across government. As I said, there are other areas that we deliberately do not cover in the White Paper, but that should not be taken to mean that work is not going on. However, I accept the noble Lord’s suggestion that it is important and needs to be done soon. I take that on board.

As far as time is concerned, we are having a consultation, as the noble Lord said, which will end on 1 July. Obviously, it is not possible for me to say today when legislation will come before the House. That is a decision for the Government and the Leaders of both Houses. Judging by the discussions we have had today, and the feeling I get from across the House, all noble Lords think that this is an important issue. The Government think that this is an important issue. We are aware that we have taken time over the consultation. As far as the Home Office and DCMS are concerned, we want to get on with it.

We have just announced a review of advertising that will report in due course.

[Baroness Kidron (CB)]

My Lords, I too welcome the White Paper. I thank the Minister and the Secretary of State for being open to discussions during the process, and for indicating that there will be more discussions. I feel that more discussions are required because it is a little lacking in detail, and I share others’ concerns about the definition of harms. I was particularly upset to not see a little more work done on the everyday harms: the gaming, the gambling and the addictive loops that drive such unhealthy behaviours online. There are a lot of questions in the paper and I look forward to us all getting together to answer them—I hope quickly and soon. I really welcome the Minister’s words about the anxiety of the Government and both Houses to bring a Bill forward, because that is the litmus test of this White Paper: how quickly we get something on the books.

I feel encouraged by the noble Lord, Lord Griffiths, to mention that on Monday next week we have the launch of the final stage of the age-appropriate design code, which takes a safety-by-design approach. That is what I most welcome in the White Paper, in the Government’s attitude and in the work that we have in front of us: what we want to do is drive good behaviour. We want to drive corporate responsibility. We want to drive shareholders to take responsibility for those massive profits and to make sure that we do not allow the tech sector its exceptionality. It is a business like any other and it must do no harm. In relation to that I mention Will Perrin and Lorna Woods, who brought it forth and did so much work.

Finally, I am really grateful for what the Minister said about the international community. It is worth saying that these problems are in all parts of the world —we are not alone—and they wait and look at what we are doing. I congratulate the Government on acting first.

[Lord Ashton of Hyde]

Obviously, there are details that need to be ironed out, and that is partly what the consultation is about. I expect there to be a lot of detail, which we will go over when a Bill finally comes to this House. In the past we have dealt with things like the Data Protection Act and have shown that we can do that well. The list in the White Paper of legal harms and everyday harms, as the noble Baroness calls them, is indicative. I completely agree with her that the White Paper is attempting to drive good behaviour. The difference it will make is that companies cannot now say, “It’s not my problem”. If we incorporate this safety by design, they will have to do that, because they will have a duty of care right from the word go. They cannot say, “It’s not my responsibility”, because we have given them the responsibility, and if they do not exercise it there will be serious consequences.

[Baroness Grender (LD)]

My Lords, does the Minister plan to watch the last ever episode of the hugely successful comedy “Fleabag”, by Phoebe Waller-Bridge, tonight? Does he agree that it is perfectly possible to have brilliant and base dramas like “Fleabag” while protecting our children and the most vulnerable, and that Ofcom and other regulators have delivered that objective, balancing freedom of speech and protection from harm with considerable success since 2003? Does he agree that if we can invest in and enhance existing regulators to deliver protections from online harm as soon as possible, that is exactly what we should do, rather than asking our children to patiently wait for protections tomorrow that they really deserve today?

[Lord Ashton of Hyde]

I agree with the noble Baroness that the television regulator and other media regulators have done a good job and that they are a good example. However, I will not be watching that programme, because I have an enormous amount of work today. If she promises not to ask any questions about the statutory instrument tomorrow, I might have a bit more time. But seriously, that shows that the decisions we are asking regulators to make are not easy. We are not trying to censor the internet. We want a vibrant internet which allows discussion, debate and different points of view but which does not allow some of the worst harms, which are indescribably bad. We need to deal with those, and we want to make the areas which are regulated offline also regulated online, in a reasonable and proportionate way.

[Lord West of Spithead (Lab)]

My Lords, we must not delude ourselves; despite everything the major internet giants and the social media platforms say about how they are trying to advance the cause of humankind and make things better for us, they are there to make profit—to make money. In the same way as when you are dealing with a chap and you grab him by a certain part of his anatomy, his mind follows, if you grab their money, their minds will follow. Anything we do about punishing must focus on the money side, because that will grab their attention.

When we talked about the international side of things some years ago, we were concerned about countries such as China and Russia, which immediately said, “Oh yes, this sort of control is a wonderful thing”, and we had to be careful to get ourselves unwound from that. Have we had any international discussions at all yet about what we are proposing in this White Paper?

[Lord Ashton of Hyde]

I agree with the noble Lord about money, although it is not only about money; individual liability is also important. If senior executives of companies are held personally responsible, that has a significant effect, as do criminal charges against companies. However, those things are part of the consultation.

On Russia and China, and countries that do not share our views about the open internet, obviously we have to take that into account, which is why, for example, there is a lot of discussion about disinformation and how companies will be expected to look out for that and deal with it by using technology and in many other ways.

Lastly, I am not aware of the detail of the international discussions, but no other country has taken this approach. For example, we have talked about individual measures that different countries have taken: Australia has set up a new safety commissioner, who is like an ombudsman, but again, that is reactive rather than proactive, and Germany has set up a law which insists that companies must take down material, but again, that is reactive. We have talked to countries about individual bits of legislation, but no one anywhere has taken a holistic and proactive approach to internet regulation. We certainly expect that if this goes through, is a success and works well, other countries will be interested, and we will certainly be prepared to talk to them about it.