Regulating in a Digital World (Communications Committee Report)

Lord Ashton of Hyde Excerpts

Wednesday 12th June 2019 Lords Chamber

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

My Lords, I am grateful to my noble friend Lord Gilbert for introducing the debate and to the entire Communications Committee for its report. I think that it is clear and well thought through. I also thank all other noble Lords who were not on the committee but who have given us their views. This is an interesting area and the thought that has gone into the report is a tribute to noble Lords. However, plenty more needs to be done. As the report notes, the digital world plays an ever-increasing role in all aspects of life. The noble Lord, Lord Maxton, referred to that. As well as benefits and opportunities, this development has brought with it new challenges and risks. The noble Lord, Lord McNally, quoted Tim Berners-Lee in that respect. I think that the committee’s report is closely aligned with, although absolutely not identical to, the Government’s approach. I will explain some of the areas that we are considering and some where we do disagree.

The recently updated digital charter, which was also described as a digital work plan—it is that as well—is our response to the opportunities and challenges arising from new technologies. The committee’s report sets out 10 principles to shape and frame the regulation of the internet which resonate with the six principles that we set out in the charter. I will come back to those principles later. At this point I have to say that I do not agree with some of what the noble Lord, Lord Maxton, said. I believe that it is possible to regulate as long as it is sensible and proportionate. Indeed, Sir Nick Clegg has asked for reasonable regulation, as has been reported today in the newspapers. My Secretary of State has been to discuss this with Facebook and other tech companies in California. Where I do agree with the noble Lord and with my noble friend Lord Inglewood is that co-operation with international bodies is eminently desirable and will be useful. I personally have spoken about this at the G7, the D9, the OECD and the EU Council, and that was just me, let alone the Secretary of State and the Minister for Digital and the Creative Industries. We want to work with our like-minded international partners to determine how we can make the internet a safer place while protecting the fundamental rights and values on which our democracy is based. I can say that other countries are interested in our work in this area. I agree in a way with the noble Lord, Lord Stevenson, that we should not say too often that the work is world-leading; we ought to let other people tell us that.

The principles of the digital charter underpin an ambitious programme of work to ensure that the internet and digital technologies are safe and secure, are developed and used responsibly—with users’ interests at their heart—and deliver the best outcomes for consumers through well-functioning markets.

I will now set out in more detail some of the key areas of work that correspond to the committee’s recommendations. My department and the Home Office recently published the online harms White Paper—which virtually every noble Lord mentioned—setting out our plans to make the UK the safest place in the world to be online. I believe that the suggestions in that White Paper satisfy the committee’s 10 principles.

Illegal and unacceptable content and activity are widespread online, and UK users are concerned about what they see and experience on the internet. The balance that needs to be struck—this conundrum, if you like—was outlined by my noble friend Lady Harding. We agree with the committee that a duty of care is an effective response to tackle this problem. We intend to establish in law a new duty of care on companies towards their users, overseen by an independent regulator, on which we are consulting. As a result of that, as the right reverend Prelate said, tech companies will have to have responsibility. It will leave them in no doubt that internet companies have a responsibility in scope. We believe that this can lead towards a new, global approach to online safety that supports our values, as I said, but also promotes a free, open and secure internet. Speaking of democratic values, I also look forward to the ideas of the House of Lords special inquiry committee on democracy and digital technologies—chaired by the noble Lord, Lord Puttnam —which the noble Lord, Lord McNally, mentioned. I can confirm that, as always, DCMS will give it its utmost co-operation.

As the report identifies, organisations increasingly collect and use individuals’ personal data online. The noble Lord, Lord Vaux, gave us helpful detail on that. New technologies must be deployed ethically, as well as safely and securely. The Government take both the protection of personal data and the right to privacy extremely seriously. The GDPR and the Data Protection Act provide increased regulatory powers for the Information Commissioner’s Office, which strengthen our data protection laws to make them fit for the digital age.

However, the increased use of personal data with artificial intelligence is giving rise to complex, fast-moving and far-reaching ethical and economic issues that cannot be addressed by data protection legislation alone. In answer to the questions from the noble Lord, Lord Vaux, relating to Google in particular, I will look at those details again. It is fair to say that people can contact the Information Commissioner’s Office if they are worried about the use of their personal data by tech companies that may or may not be in compliance with the GDPR.

The Government have also set up the Centre for Data Ethics and Innovation to provide independent, impartial and expert advice on the ethical and innovative deployment of data, algorithms and artificial intelligence. In answer to the noble Lord, Lord Stevenson, this has not yet been set up on a statutory basis—as I think he well knows—but it will be. It is a question of legislative time, but it is our intention and plan to do that. In the meantime, as he knows, the Chancellor has made money available for it to act. It will work closely with regulators, including the ICO, to ensure that the law, regulation and guidance keep pace with developments in data-driven and AI-based technologies. The issue of the forward-looking aspects of the digital authority will partly be addressed by the Centre for Data Ethics and Innovation, but I will come back to the digital authority in a minute.

As set out in the online harms White Paper, creating a safe user environment online requires online services and products to be designed and built with user safety as a priority. We will work with industry and civil society to develop a safety by design framework.

The noble Lord, Lord Stevenson, and other noble Lords talked about market concentration, and the report recommends how the Government should approach mergers and acquisitions in this unique online environment. The Government’s Modernising Consumer Markets Green Paper sought views on how well equipped the UK’s competition regime is to manage emerging challenges, including the growth of fast-moving digital markets. We continue to consider the options across the range of measures proposed in the Green Paper, including for digital markets, and are due to report in summer 2019. This will be informed by the work of the independent Digital Competition Expert Panel, led by Professor Jason Furman, which published its recommendations for Government on 13 March. The Prime Minister announced yesterday that Jason Furman has agreed to advise on the next steps on how we can implement his recommendation to create a digital market unit. We are considering his other recommendations, and will respond later this year.

On the digital authority, which was one of the key recommendations of the report, to, among other things, co-ordinate regulators in the digital world, we support the committee’s view that effective regulation of digital technology requires a co-ordinated and coherent approach across the various sector regulators and bodies tasked with overseeing digital businesses. They need clarity and stability, and the Government should lead the way in providing oversight and co-ordination of digital regulation, and ensuring consistency and coherence. We are carefully considering how existing and new regulatory functions, such as that proposed through the online harms White Paper, will fit together to create an effective and coherent landscape that protects citizens and consumers. However, we are also conscious of the calls for speed, which have been made by many noble Lords and stakeholders, not all tonight. On the one hand, we have to carefully consider the implications of new regulation, as the noble Lord, Lord Gordon, told us; on the other hand, there are serious harms that need addressing now.

When I say we are carefully considering it, we are carefully considering it. The noble Lord, Lord Stevenson, is looking as if he is not taking me seriously, but we are.

[Lord Stevenson of Balmacara]

I apologise to the Minister. It was just that he said that he was considering it, and that he is considering it. It did not seem to advance the argument very much.

[Lord Ashton of Hyde]

I was considering it, we are considering it, and we will consider it further. The worry we have is about speed, and setting up a completely new regulator, and co-ordinating the existing regulators, is what we have to worry about. The consultation is still going on, and that is something we can address.

The other main issue that several noble Lords have mentioned is about the 10 principles in the report, and the six principles in the charter, which I mentioned before. We have a set of principles that underpin the digital charter, and the online harms White Paper is part of the charter’s programme of work. The committee’s principles of regulation correspond with the White Paper approach. For example, on parity, what is unacceptable offline should be unacceptable online. However, the online harms White Paper does set out our intention to consult widely as we develop our proposals, so we will further consider the proposals as part of this, ahead of finalising new legislation.

The noble Lords, Lord McNally and Lord Stevenson, also mentioned pre-legislative scrutiny. We would like to consult thoroughly—we have had a Green Paper and a White Paper, both of which have had consultations that, we hope, will ensure that we get our proposals right. However, as I said before, there is a need for urgent action—that is increasingly evident—and we will take those factors into account when reaching a decision on whether to engage in pre-legislative scrutiny. We are not against it in principle—in fact, there are many ways in which it would be useful—but, having had two consultations already, we may decide in the long run that speed is more important and that we need to get things done.

As to the momentum to which the noble Lord, Lord Stevenson, referred, a Bill is definitely planned. It needs to be drafted after the consultation—which ends on 1 July—but it will not be easy legislation to frame if we are to capture all the areas that noble Lords have talked about. We have momentum and are keen to do it, as is the Home Office, which wishes to address particular issues such as child exploitation.

The noble Lord, Lord Stevenson, the right reverend Prelate and the noble Baronesses, Lady Harding and Lady Kidron, talked about age-appropriate design. The right reverend Prelate was concerned that we would row back from this. Age-appropriate design, or the kids’ charter—or, as I call it, the Kidron charter—is a part of the wider approach to tackling online harms and will play a key role in delivering robust protections for children online. We discussed it at length on the Bill. The ICO has been consulted formally on the code and will continue to engage with industry. We are aware that the industry has raised concerns—the noble Baroness, Lady Kidron, mentioned some of them—but it is not beyond the wit of such an innovative industry to deal with those technical concerns. It is important that the ICO continues to work with the industry to make sure that the measures are workable and deliver the robust protection that children deserve. The ICO has a reputation as a proportionate regulator and we will stand behind it.

The noble Lord, Lord Gilbert, asked about a classification framework akin to that of the British Board of Film Classification. We have said in the online harms White Paper that companies will be required to take robust action, particularly where there is evidence that children are accessing inappropriate content, and that we expect the codes of practice issued by the regulators to make it clear that companies must ensure that their terms of service state what behaviour and what activity is tolerated on the service, as well as the measures that are in place to prevent children accessing inappropriate content. The regulator will assess how effectively these terms are enforced. The classification framework is an interesting idea. We are consulting on developing our proposals and we will certainly include that.

The noble Lord, Lord Gilbert, also asked for important assurances that the press are outside the scope of the duty of care and how the Government intended to balance journalistic freedom with the regulation of online harms. The Secretary of State has been clear that this is not intended to include journalistic content. We do not interfere with what the press does or does not publish as long as it abides by the law of the land. A free press is an essential part of our democracy, so journalistic or editorial content will not be affected by the regulatory framework we are putting in place.

The noble Viscount, Lord Colville, and the noble Lord, Lord Stevenson, mentioned gaming addiction. I have written to the noble Viscount, who reminded me that a whole six weeks had passed and he wondered what we had done about it. I do not think he has been in government or he would know that that is asking a bit much, especially as the consultation is still going on and does not finish until 1 July. We do not want to duplicate what is regulated by other gambling and gaming regulators. We are clearly looking at that important issue, but it is not within the scope of this White Paper.

The noble Viscount mentioned the GDPR loophole. I will have to look at that. I always thought that data subjects had the ability to ask for decisions made by algorithms to be explained, whether or not it was with a person. I will have to check the legal position and get back to him on that.

As far as the e-commerce directive and liability is concerned, the new regulatory framework will increase the responsibility of online services, but a focus on liability for the presence of illegal content does not incentivise the systematic, proactive responses we are looking to achieve. We think the way we are doing it—with the duty of care—gives them the responsibility to be more proactive, and that the monitoring they have to do is within the scope of the e-commerce directive.

I once again thank the noble Lord and his committee for their report. I think we are aligned on some of the fundamental issues. The contributions this evening have shown that there is a depth of interest in this subject. If we get this right, we have an opportunity to lead the way and work with others globally. We will protect citizens, increase public trust in new technologies and create the best possible basis on which the digital economy and society can thrive.