Online Harms White Paper

Lord Ashton of Hyde Excerpts

Tuesday 30th April 2019 Lords Chamber

Moved by

[Lord Ashton of Hyde]

That this House takes note of the Online Harms White Paper (CP57).

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

My Lords, I repeated a Statement in the House on the online harms White Paper on the day that we published it, 8 April. There was not enough time for all noble Lords who wanted to contribute to do so, and so the Chief Whip kindly made me available for noble Lords to make their points at greater length and with the benefit of more time to think about this difficult problem. I am grateful for the opportunity to listen to noble Lords’ views.

This White Paper is an important document and a world first. For many people nowadays, the internet is an integral part of daily life. However, illegal and unacceptable content and activity remain far too prevalent online. There is currently a range of voluntary initiatives that try to address some of these problems, but while there has been some progress, the efficacy and pace of these actions have varied widely across different companies. These inconsistencies still leave too many users unsafe online, and the current regulatory landscape lacks the scope and coherence to tackle this complex set of problems. That is why we have published this White Paper, which sets out an ambitious and coherent framework for tackling harmful content and activity. This will make companies more responsible for their users’ safety online, especially that of children and other vulnerable groups, and will help build trust in digital markets. The online harms we are tackling include behaviour that threatens users, particularly children and the vulnerable, and behaviour that undermines our national security or aims to fracture the bonds of our community and our democracy.

To tackle these harms, we intend to establish in law a new duty of care on companies towards their users, overseen by an independent regulator. This regulator will set clear safety standards, backed up by mandatory reporting requirements and effective enforcement powers. Companies will be held to account for tackling a comprehensive set of online harms ranging from illegal activity and content to behaviours that might not be illegal but are none the less highly damaging to individuals and society. They will be required to take particularly robust action to tackle terrorist content and online child sexual exploitation and abuse.

We recognise that a very wide range of businesses, such as retailers, consumer brands and service providers of all kinds, currently enable some degree of user interaction or user-generated content online. Although we will minimise excessive burdens according to the size and resources of organisations, all companies will be required to take reasonable and proportionate action to tackle harms on their services.

The regulator will have sufficient enforcement powers to take effective action against companies that breach regulatory requirements and to uphold public confidence, while also being fair and proportionate. These will include the power to levy substantial fines, and we are consulting on even more stringent sanctions.

As a world leader in emerging technologies and innovative regulation, the UK is well placed to seize the opportunities presented by the measures set out in the White Paper. We want technology itself to be part of the solution, and we propose measures to boost the tech safety sector in the UK, as well as measures to help users manage their safety online. Furthermore, we believe that this approach can lead to a new, global approach to online safety that supports our democratic values and promotes a free, open and secure internet. The Government will look to work with other countries to build an international consensus behind it. We will seek to work with international partners to build agreement and identify common approaches to keep citizens safe online. Having these relationships will support the UK’s ability to put pressure on companies whose primary base is overseas.

Since the White Paper was published earlier this month, the reaction has been generally positive. Noble Lords who spoke in the earlier debate, and Members in the other place, welcomed the Government’s action in this crucial area, and much, although not all, of the media coverage has also been supportive. However, I would like to focus on a couple of areas where our proposals have come under close scrutiny.

First, there has been comment in some newspapers that the measures we have set out in the White Paper will fetter the freedom of the press. I reassure noble Lords that that is not the case. The Government strongly support press freedom and editorial independence. A vibrant, independent, plural and free press that is able to hold the powerful to account is essential to our democracy. Journalistic or editorial content will not be affected by the regulatory framework that we are putting in place. Furthermore, the regulator will have a legal duty to pay due regard to protecting users’ rights online—in particular, their privacy and freedom of expression. The regulator will not be responsible for policing truth and accuracy online.

There is a question of whether newspapers’ comment sections will fall within the scope of the online regulator. We are consulting on proposals for the statutory duty of care to apply to companies that allow users to share or discover user-generated content or interact with each other online. However, as the Secretary of State made clear in the other place, where these services are already well regulated, as is the case with IPSO and Impress regarding their members’ moderated comment sections, we will not duplicate those efforts.

The second area where concerns have been expressed since the White Paper’s launch concerns the potential burdens on small and medium-sized enterprises. Companies within scope will include SMEs and start-ups, but a key element of the regulator’s approach will be the principle of proportionality. The regulator will be required to assess companies according to their size and resources. The regulator will also take a risk-based approach, focusing initially on companies whose services pose the biggest risk of harm to users, based on factors including the scale of the service. The regulator will have a legal duty to pay due regard to innovation— indeed, the regulatory framework set out in the White Paper is pro innovation and will preserve the openness and enterprise that lie at the heart of the UK’s flourishing tech sector.

I believe that we have both a duty to act to protect UK citizens and an opportunity to lead the world on this issue. I firmly believe that this White Paper is a valuable step forward in creating a safer and stronger internet that works for the benefit of all humankind. To get this right, we will need to work with our civil society, our technology sector and, of course, Members of both Houses. We are consulting on the White Paper and have already received around 1,000 responses. As part of that, I am looking forward to hearing noble Lords’ contributions. I beg to move.

--- Later in debate ---

[Lord Storey (LD)]

My Lords, I have listened with great interest to the speeches made so far and also read, in some detail, the online harms White Paper. This followed the Green Paper, published in October 2017, in which there was an aspiration to make the UK,

“the safest place in the world to be online”.

This aspiration, which some might call a faint hope, appears again in the executive summary of the White Paper. I also listened to today’s Statement on yesterday’s social media summit and was interested to hear the Minister say that it was agreed,

“to work with experts … to speed up the identification and removal of suicide and self-harm content, and create greater protections online”.

What does the Minister understand “speed up the identification” to mean? Does it mean immediately, within an hour, a day, a week or what?

[Lord Ashton of Hyde]

Which Minister are you talking about?

[Lord Storey]

I am talking about the earlier Oral Statement on the social media summit.

In the past 18 months, we have seen the internet become less safe and more dangerous, for everyone, but in particular for children and young people, who I have a particular interest in. I am not going to talk about the technical aspects of how we might regulate the internet: I am no expert on bandwidth, et cetera, and the only generation I am interested in is the one currently growing up. I have read about 3G, am using 4G and am reading about the opportunities and threats of 5G.

We must ensure that the next generation of computers, and those who profit massively from the industry, exercise a duty of care. Current and future generations of children and young people must be protected so that they can enjoy a fraction of the innocence that we enjoyed. We spent time and money on the thing called the watershed, in an attempt to prevent children watching adult content on terrestrial TV channels. We pay the staff at the British Board of Film Classification to watch every film for which general release is sought, giving each film an age rating. We have established the Video Standards Council to rate video games. Imagine the uproar there would be if the 10 o’clock news had shown the shootings in New Zealand or beheadings by ISIS. However, as the House has heard, when it comes to the internet the only regulation is self-regulation. Even Mr Zuckerberg, one of the worst villains of the internet piece, makes billions while crying crocodile tears about the need for external regulation.

When a gentleman called Mr Ford began to make motor cars, it was soon realised that they could do serious physical damage to people and property. To minimise the damage, a decision was taken to regulate cars; abolishing them was not an option. In England, we have stringent rules on who can drive, the speed at which cars are driven and how drivers must follow the Highway Code. Parents—most of them—teach their children how to cross the road safely. This is reinforced in schools and, as children begin to use roads as cyclists, they are taught how to keep themselves safe. Similarly, car makers are strictly regulated in terms of the safety of passengers and, increasingly, the damage to the environment.

However, the internet, the 21st-century Wild West, seems to have more than its fair share of bandits but no sheriffs to take them on. The internet is, as yet, totally unregulated and is driven by just two motives: making bigger profits or reducing costs. The reason why pornography, to take just one example, is so easily available on the internet is because the internet giants make unbelievably huge amounts of money, directly and indirectly, by hosting pornography sites.

Of course, everyone agrees that young people should not watch extreme violence or pornography and the industry shadow-boxes with parental filters and age limits. However, the research shows that parental filters are easily evaded and age limits are totally ineffective. A decade ago, in a Committee Room in this House, there was a seminar on the dangers posed to children by the internet. There was unanimity, even then, from the Department for Children, Schools and Families, Vodafone and Google that the internet genie was out of the bottle. Since then, successive Governments have talked the talk about protecting children and young people from the hell which is only three clicks away, but no serious attempt has been made to regulate the internet.

I support this White Paper and congratulate the Government on bringing it forward. We should present this not as an attack on freedom of expression but as allowing freedom of expression which does not damage the most vulnerable. I see this as the start of a process. We know that the industry is lobbying hard to protect its profits. We have all heard how it is difficult—which means expensive—to stop offensive and illegal content being readily available.

I pause to reflect on the points made by the noble Lord, Lord Puttnam, about the threat to our society and democracies. We have seen how that has gone on: the presidential election in America was probably affected by bots targeting literally millions upon millions of people. As political parties, we use social media to campaign and we do it in a very effective way, but in the wrong hands these means can be used to turn against democracy. I hope that the Government and the Minister will think hard, in detail, about the points that the noble Lord made.

Internet companies say, “There is nothing we can really do about this”, but just look at what is happening in China. Xi Jinping manages to block anything that does not fit in with his socialist China, often with the agreement of the internet giants themselves, who go along with what he says to ensure their presence in the country. I am not suggesting that we have the same regime as China, but it is possible to put in place algorithms and filters which stop the most harmful effects of the internet. As a Liberal Democrat, I am in favour of individual freedoms, but we also have a duty to ensure that that freedom is constrained by the rights of others.

Children have the right to a childhood, and schools need to educate children to be responsible users of social media. Parents must be empowered to protect their children through digital literacy, advice and support. I hope that the Minister will look carefully at the area of support to schools. The Government will say that schools should be doing more and giving education. The problem is that we have a subject called PSHE—personal, social and health education—which many of us have said should be taught in all schools, but of course academies and free schools can choose not to do PSHE or choose not to talk to children about the problems of ensuring internet safety. Unless we regulate the internet to keep our children safe, we will continue to pay a very high price. Parents of children who have committed suicide know how high that price is.

--- Later in debate ---

[Lord Ashton of Hyde]

My Lords, I genuinely thank all noble Lords for their contributions. I echo what the noble Lord, Lord Stevenson, said about the quality of the speeches. There is much to say and I will do the best I can to be clear.

I again make the point that this is not a Second Reading debate. I am not here to defend every word in the document. We are approaching this issue in a genuinely consultative way, as I think we have done from the publication of the Green Paper onwards. However, there is one thing that we are not prepared to compromise on: we do not think that the status quo is acceptable, and we believe that the public support us in that.

We are interested in people’s views and the consultation is taking place at the moment. As I said, there have already been over 1,000 responses. There tends to be an initial barrage of responses. They then tail off a bit, and the more considered ones, with the benefit of research, come at the end. Therefore, we think that there will be a significant amount of consultation. We intend to undertake research during and after that period, based on the consultation, and I, along with my officials, will be very willing to talk to noble Lords about this issue outside the Chamber.

Regarding the potential chilling effect on SMEs of the proposed legislation, I would like to say something about the DCMS. Its responsibilities have grown enormously. We now represent sectors that produce one in every £7-worth of the goods and services produced in this country. We are absolutely concerned with and supportive of innovation and growth. Although we think that this regulation is necessary, we are very concerned that it should be proportionate and risk based so that it does not in any way stop the engine of growth that has taken place over the last few years, particularly in the digital sector, where the growth has been significantly higher than that of the economy. We are undoubtedly a world leader in that respect.

The DCMS also represents culture and the media, so we are concerned with our liberal democratic culture, freedom of expression and the press. We therefore have to achieve a difficult balance. It is interesting that both ends of the continuum have been expressed tonight—that is, noble Lords have alluded to the fact that this is a broad-ranging document but some have said that it does not cover a number of pet harms that they are interested in. Achieving the aims will be difficult but absolutely possible. I will come on to talk about how the harms relate to the duty of care, which I hope will be reassuring. I reiterate that, in replying to the individual points made by noble Lords, I guarantee to take them back to the department and think about them, and I will write to noble Lords if I do not get to the end.

Although this is an important part of the battle against internet and online harms, it is also part of a wider mission that we are undertaking. We want to develop rules and norms for the internet, including for protecting personal data, supporting competition in digital markets and promoting responsible digital design. That is why, on page 31 of the White Paper, we have specifically indicated the areas that we are excluding: areas that are either regulated elsewhere or addressed by other parts of the Government’s activities. This may or may not end up with DCMS, as the noble Lord, Lord Brooke, predicted. That these online harms are addressed is more important than where they end up residing.

I return to the list of harms on page 31 of the White Paper. The noble Lord, Lord Griffiths, contrasted it with the harms outlined in the Plum report. That was commissioned by my department as part of the evidence that will support the online advertising review announced by the Secretary of State earlier this year, as well as the Government’s response to the Cairncross review. These lists were therefore produced for slightly different purposes.

Generally speaking, we know that the list of harms in the White Paper will not incorporate every harm that every person is interested in, or that exist on the internet. We want in the duty of care to tell internet and tech companies that they can no longer say, “This is not my problem”. They will have to look at the harms and will have an active duty to educate themselves about the potential harms that their website or app, for example, produces. Even if these are not delineated, it will not be an excuse for a company to say that they are not on the list. We could have had a list of harms that we thought encompassed everything, but that would have been guaranteed to be out of date in three nanoseconds. The duty of care is there to futureproof this legislation as much as possible.

As I said, we have not included harms that have already been dealt with by other initiatives. I say to the noble Lord, Lord Haskel, for example, that we are not covering the dark web; that is dealt with under a separate programme by the Home Office. Where I do agree with him is that competition law itself will need to be looked at, just as big companies in the past have been addressed by it. We will not do it in this White Paper but, as he will know, the Furman report on digital competition outlined that there is insufficient competition in the digital economy. We will be responding to that soon. The noble Lord also asked about international co-operation and what steps we are taking. During the period between the consultation and our response to it, we will be looking at a concerted effort—a programme, as it were—on international co-operation. We agree that it is important, so we will not do it on a piecemeal basis but will try for a proper strategy. That is one piece of work that must be done.

The noble Lord, Lord Colville, talked about the need for a focused definition so as not to inhibit free speech. We are absolutely focused on that; we believe in it. The regulator will issue codes of practice setting out clearly what companies need to do. If the evidence changes and new harms are manifest, the regulator can react and issue guidance but we will have to make sure the legislation itself is very clear about free speech. We are giving the regulator a duty to have regard to privacy and people’s rights under, for example, the GDPR. That will be absolutely within the regulator’s remit.

The noble Lord, Lord Brooke, talked about health. We will take on board his suggested title for the new legislation. We are worried about health too, so my department has worked very closely with the Department of Health and Social Care. As noble Lords know, the ex-Secretary of State for DCMS is now running that department and speaks frequently on these matters—in fact, he did so today. We have cited the Chief Medical Officer’s advice on screen time and included advocacy of self-harm among the list of harms. We take these issues on board. One of the features we have incorporated in the White Paper is safety by design. [Interruption.] I apologise—the digital part of my portfolio is intruding on me. Safety by design means that all harms, including those related to health, are included, if it is reasonable to take account of them.

The noble Lord, Lord McNally, and the noble Baroness, Lady Benjamin, wondered if we have the flexibility and nimbleness to stay ahead of technology and regulate effectively. We will establish a regulator that will have the skills and resources needed to issue guidance on a range of harms. I take on board everything that noble Lords have said about resources and I will come to that later. We will consider the case for pre-legislative scrutiny, but I must say that at the moment—this is not a commitment or an indication of official policy—we are also very conscious of the need to act quickly. We have consulted on the Green Paper and we are consulting on the White Paper. We are thinking about pre-legislative scrutiny—I know the noble Lord, Lord Puttnam, is an expert on that—but we have not made a decision on it. Whatever happens, there will be plenty of consultation with noble Lords.

We agree with the other point made by the noble Lord, Lord McNally, about coherence across Whitehall. There is a need for coherence on regulatory functions and between departments. We are consulting on who the regulator should be and I take on board noble Lords’ views on that. The departmental lead is DCMS, but it is a joint White Paper, so the Home Office is taking a keen interest in this. As I said before, at the moment there is no prospect of us changing that and I think we are well placed in terms of both knowledge and enthusiasm to drive this forward. I have been told that the Secretary of State has made a good impression so far with his advocacy of this White Paper.

The noble Lord, Lord Anderson, spoke of the need for government to declare boundaries for companies to adhere to, and said that there is currently a democratic deficit, with large, foreign companies often setting the rules. My noble friend Lord Kirkhope also mentioned this. In the White Paper, we are consulting on the role of Parliament in relation to the regulator and, in particular, to the codes of practice it will issue. As I said, we will not provide a rigid definition of all the harms in scope, but we will ask how far Parliament should be involved in the individual codes of practice and to what extent the regulator should be accountable to Parliament—in the way that Ofcom is, for example. We are very supportive of that.

On the regulator, I know that some noble Lords have suggested Ofcom. Obviously, we are consulting on whether we want a new regulator from scratch, an existing regulator or a combination of the two. Obviously, I agree that Ofcom would be a strong candidate if an existing body is chosen, and the White Paper recognises that.

The noble Baroness, Lady Grender, mentioned AI. We mention it vis-à-vis transparency. The regulator will have the power to ask what the impact is, as the noble Lord, Lord Stevenson, said. I take his point about the further need to look at AI and some of the issues surrounding it. We would be interested to wait; it will certainly come in time. It is one of the first areas that the Centre for Data Ethics and Innovation is looking at, so we would be interested to hear what it says about it.

My noble friend—sorry, the right reverend Prelate the Bishop of St Albans, who is of course a friend because for some reason we seem to see quite a lot of each other on various issues—talked about gambling, as did the noble Viscount, Lord Colville, and particularly about addiction. The right reverend Prelate mentioned that the regulator needs significant powers and independence to deal with some of the largest companies in the world. He asked if it could be envisaged that some companies could have their licences revoked. That is exactly one of the questions we have asked in the consultation, along with other significant powers of blocking sites and business interruption. So within our suggestions we are talking about pretty draconian powers, but they will be proportionate.

For example, the right reverend Prelate mentioned that the maximum fine at the moment has been £500,000. That is because that was the limit that the regulator—the ICO in this particular case—had. If we follow the GDPR’s lead, it would be 4% of global turnover. Facebook had a turnover of $55 billion, so the fine could potentially go up from £500,000 to $2.2 billion. More important than that is the other suggestion we made about possible personal liability for senior executives and some of the other things I mentioned. We are absolutely conscious that enforcement is a crucial issue in setting up an effective regulator, particularly when so many of these companies are largely based abroad. Another thing we could consider is personal representation in this country, as mentioned in the GDPR.

As far as gambling itself is concerned, we have also tried to avoid duplication, so we are talking about not gambling specifically but of course, as I mentioned before, harms generally. Internet addiction will definitely be in the White Paper’s scope.

My noble friend Lord Kirkhope talked about self-regulation, which he disagreed with. We agree that self-regulation has not worked. It is a good start, and we would expect the regulator to work closely with companies and organisations such as the Internet Watch Foundation in producing its codes of practice. The regulator will wish to learn from these organisations. As I said right at the beginning, we think self-regulation has not worked sufficiently. That is why we have decided to establish an independent regulator.

The noble Lords, Lord Puttnam and Lord Knight, both talked about the democratic issue and electoral interference. We talk about disinformation in the White Paper. That is clearly in scope. Specifically electoral matters will be left to the Cabinet Office, which will soon publish a report on what it is going to do. Indeed, I believe that my noble friend Lord Young is answering a Question for the Cabinet Office tomorrow about that exact issue. I mention that merely to give noble Lords the chance to ask him.

Briefly, because I have not got much time, I will talk about a very important point which many noble Peers have mentioned, and that is the media literacy strategy. We understand that regulation is one thing, but making people aware of what is needed in the modern world is very important. We have committed to developing a media literacy strategy, including major digital players, broadcast and news media organisations, education sector researchers and civil society, to ensure a co-ordinated and strategic approach to online media literacy, education and awareness for children, young people and adults. We want to enable users to be more resilient in dealing with misinformation and disinformation—including in relation to democratic processes—ensure people with disabilities are not excluded from digital literacy education and support, and develop media literacy approaches to tackling violence against women and girls.

I am running out of time, but I want to be very clear about disabilities to the noble Baroness, Lady Hollins. We will be considering those. I will take back what she has said in detail, absolutely take it on board and definitely consult.

Finally, I was very pleased at and grateful for the support of my noble friend Lady Howe of Idlicote. As her speech went on, I was waiting for the “but”, and it sort of came. We agree that filters can be very useful for parents. The online media literacy strategy will ensure a co-ordinated and strategic approach. It will be developed in broad consultation with all stakeholders. As far as the online age verification is concerned—which I can confirm will come in on 15 July—I know that there are issues, which she has discussed both in the Digital Economy Bill and also individually with me. We have decided that a review will take place, so we are not going to be including this, but I absolutely take on board the points she has made and will ensure that they are taken back.

There are a number of other points. I will write to noble Lords, as there are too many to mention. There are those—the noble Lord, Lord Storey, mentioned some of them—who say that because the internet is global, no nation can regulate it. If we have a strong regulator with a sensibly defined legislation that follows the money, as the noble Lord said, then I do not agree; I think it can be regulated. We will do our best to ensure international support with that. We are well placed to be the first to act on this, and to develop a system of regulation that the world will want to emulate. The White Paper begins that process and delivers that, and I commend it to the House.

Motion agreed.