Online Safety Bill

Lord Bethell Excerpts

2nd reading
Wednesday 1st February 2023 Lords Chamber

[Lord Bethell (Con)]

My Lords, if a child goes to the Windmill club, the most famous strip club in Soho, the bouncers will rightly turn them away, no ifs, no buts: no entry, full stop. If a child tries to buy a knife on Amazon or to place a bet on Bet365.com, it will be the same story: you need proof of age. But every day, millions of children in this country watch pornography in their homes, at schools, on the bus, on devices of all kinds, without any hindrance at all. The Children’s Commissioner makes it really clear that this is not just raunchy pornography like in the old days of Razzle magazine. These are depictions of degradation, sexual coercion, aggression and exploitation, disproportionately targeted at teenage girls. As Dame Rachel de Souza said:

“Most of it is just plain abuse”.


The effects of this failed experiment are absolutely disastrous. The British Board of Film Classification says that half of 11 year-olds have seen porn, and according to the NSPCC, a third of child abuse offences are now committed by children. The answer is straight- forward in principle: we need to apply the rules on age verification for porn that exist in the real world to the online world. We need to address this harm immediately, before any more damage is done—before there is any metaverse or any more technology to spread it further.

I know that the Minister, the Secretary of State and the Prime Minister all broadly agree with this sentiment, and that is why the Bill has:

“A duty to ensure that children are not normally able to encounter content that is regulated provider pornographic content in relation to the service (for example, by using age verification).”


But this vague power simply starts a long process of negotiation with the porn industry and with tech. At a very minimum, it will require a children protection consultation, a child’s access assessment, a guidance statement, an agreement on child protection guidance and codes, secondary legislation, parliamentary approval of the Ofcom child protection code, monitoring and engagement, engagement on the enforcement regime, test cases in the courts—and so on.

I appreciate that we are creating laws flexible enough to cope with technological evolution and I totally support that principle, but we should not reinvent the wheel. We tried that 30 years ago when the online porn industry started, and it failed. We need one regime for the real world and for the online world. This is an opportunity to send a message to the tech industries and to the British people that we mean business about protecting children, and to put Britain at the vanguard of child protection regulation.

I want to see this Bill on the statute book, and I am very grateful for engagement with the Minister, the Bill team and all those supporting the Bill. I look forward to suggestions on how we can close this gap. But if we cannot, I will table amendments that replace Part 5 of the Online Safety Bill with Part 3 of the Digital Economy Bill—a measure that has considerable support in another place.

Online Safety Bill

Lord Bethell Excerpts

Committee stage
Tuesday 25th April 2023 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, as I listen to the words echoing around the Chamber, I try to put myself in the shoes of parents or children who, in one way or another, have suffered as a result of exposure to things happening online. Essentially, the world that we are talking about has been allowed to grow like Topsy, largely unregulated, at a global level and at a furious pace, and that is still happening as we do this. The horses have not just bolted the stable; they are out of sight and across the ocean. We are talking about controlling and understanding an environment that is moving so quickly that, however fast we move, we will be behind it. Whatever mousetraps we put in place to try to protect children, we know there are going to be loopholes, not least because children individually are probably smarter than we are collectively at knowing how to get around well-meaning safeguards.

There are ways of testing what is happening. Certain organisations have used what they term avatars. Essentially, you create mythical profiles of children, which are clearly stated as being children, and effectively let them loose in the online world in various directions on various platforms and observe what happens. The tests that have been done on this—we will go into this in more detail on Thursday when we talk about safety by design—are pretty eye-watering. The speed with which these avatars, despite being openly stated as being profiles of children, are deluged by a variety of content that should be nowhere near children is dramatic and incredibly effective.

I put it to the Minister and the Bill team that one of the challenges for Ofcom will be not to be so far behind the curve that it is always trying to catch up. It is like being a surfer: if you are going to keep going then you have to keep on the front side of the wave. The minute you fall behind it, you are never going to catch up. I fear that, however well-intentioned so much of the Bill is, unless and until His Majesty’s Government and Ofcom recognise that we are probably already slightly behind the crest of the wave, whatever we try to do and whatever safeguards we put in place are not necessarily going to work.

One way we can try to make what we do more effective is the clever, forensic use of approaches such as avatars, not least because I suspect their efficacy will be dramatically increased by the advent and use of AI.

[Lord Bethell (Con)]

Tim Cook, the CEO of Apple, put it very well:

“Kids are born digital, they’re digital kids now … And it is, I think, really important to set some hard rails around it”.


The truth is that in the area of app stores, Google and Apple, which, as we have heard, have a more than 95% share of the market, are just not voluntarily upholding their responsibilities in making the UK a safe place for children online. There is an air of exceptionalism about the way they behave that suggests they think the digital world is somehow different from the real world. I do not accept that, which is why I support the amendments in the name of my noble friend Lady Harding and others—Amendments 19, 22, 298, 299 and other connected amendments.

There are major holes in the app stores’ child safety measures, which mean that young teens can access adult apps that offer dating, random chats, casual sex and gambling, even when Apple and Google emphatically know that the user is a minor. I will give an example. Using an Apple ID for a simulated 14 year-old, the Tech Transparency Project looked at 80 apps in the App Store that are theoretically limited to 17 and older. It found that underage users could very easily evade age restrictions in the vast majority of cases. There is a dating app that opens directly into pornography before ever asking the user’s age; adult chat apps filled with explicit images that never ask the user’s age, and a gambling app that lets the minor account deposit and withdraw money.

What kind of apps are we talking about here? We are talking about apps such as UberHoney; Eros, the hook-up and adult chat app; Hahanono—Chat & Get Naughty, and Cash Clash Games: Win Money. The investigation found that Apple and other apps essentially pass the buck to each other when it comes to blocking underage users, making it easy for young teens to slip through the system. My day-to-day experience as a parent of four children completely echoes that investigation, and it is clear to me that Apple and Google just do not share age data with the apps in their app stores, or else children would not be able to download those apps.

There is a wilful blindness to minors tweaking their age. Parental controls on mobile phones are, to put it politely, a joke. It takes a child a matter of minutes to circumvent them—I know from my experience—and I have wasted many hours fruitlessly trying to control these arrangements. That is just not good enough for any business. It is not good enough because so many teenagers have mobile phones, as we discussed—two-thirds of children have a smartphone by the age of 10. Moreover, it is not good enough because they are accessing huge amounts of filthy content, dodgy services and predatory adults, things that would never be allowed in the real world. The Office of the Children’s Commissioner for England revealed that one in 10 children had viewed pornography by the time they were nine years old. The impact on their lives is profound: just read the testimony on the recent Mumsnet forums about the awful impact of pornography on their children’s lives.

To prevent minors from accessing adult-only apps, the most efficient measure would be, as my noble friend Lady Harding pointed out, to check users’ ages during the distribution step, which means directly in the app store or on the web browser, prior to the app store or the internet browser initiating the app or the platform download. This can be done without the developer knowing the user’s specific age. Developing a reliable age-verification regime applied at that “distribution layer” of the internet supply chain would significantly advance the UK’s objective of creating a safer online experience and set a precedent that Governments around the world could follow. It would apply real-world principles to the internet.

This would not absolve any developer, app or platform of their responsibilities under existing legislation—not at all: it would build on that. Instead, it would simply mandate that every player in the ecosystem, right from the app store distribution layer, was legally obliged to promote a safer experience online. That is completely consistent with the principles and aims of the Online Safety Bill.

These amendments would subject two of the biggest tech corporations to the same duties regarding their app stores as we do the wider digital ecosystem and the real world. It is all about age assurance and protecting children. To the noble Lord, Lord Allan, I say that I cannot understand why my corner shop requires proof of age to buy cigarettes, pornography or booze, but Apple and Google think it is okay to sell apps with inappropriate content and services without proper age-verification measures and with systems that are wilfully unreliable.

There is a tremendous amount that is very good about Tim Cook’s commitment to privacy and his objections to the data industrial complex; but in this matter of the app stores, the big tech companies have had a blind spot to child safety for decades and a feeling of exceptionalism that is just no longer relevant. These amendments are an important step in requiring that app store owners step up to their responsibilities and that we apply the same standards to shopkeepers in the digital world as we would to shopkeepers in the real world.

[Lord Storey (LD)]

My Lords, I enter this Committee debate with great trepidation. I do not have the knowledge and expertise of many of your Lordships, who I have listened to with great interest. What I do have is experience working with children, for over 40 years, and as a parent myself. I want to make what are perhaps some innocent remarks.

I was glad that the right reverend Prelate the Bishop of Oxford raised the issue of online gaming. I should perhaps declare an interest, in that I think Liverpool is the third-largest centre of online gaming in terms of developing those games. It is interesting to note that over 40% of the entertainment industry’s global revenue comes from gaming, and it is steadily growing year on year.

If I am an innocent or struggle with some of these issues, imagine how parents must feel when they try to cope every single day. I suppose that the only support they currently have, other than their own common sense of course, are rating verifications or parental controls. Even the age ratings confuse them, because there are different ratings for different situations. We know that films are rated by the British Board of Film Classification, which also rates Netflix and now Amazon. But it does not rate Disney, which has its own ratings system.

We also know that the gaming industry has a different ratings system: the PEGI system, which has a number linked to an age. For example PEGI 16, if a parent knew this, says that that rating is required when depiction of violence or sexual activity reaches a stage where it looks realistic. The PEGI system also has pictures showing that.

Thanks to the Video Recordings Act 1984, the PEGI 12, PEGI 16 and PEGI 18 ratings became legally enforceable in the UK, meaning that retailers cannot sell those video games to those below those ages. If a child or young person goes in, they could not be sold those games. However, the Video Recordings Act does not currently apply to online games, meaning that children’s safety in online gaming relies primarily on parents setting up parental controls.

I will listen with great interest to the tussles between various learned Lords, as all these issues show to me that perhaps the most important issue will come several Committee days down the path, when we talk about media literacy. That is because it is not just about enforcement, regulation or ratings; it is about making sure that parents have the understanding and the capacity. Let us not forget this about young people: noble Lords have talked about them all having a phone and wanting to go on pornographic sites, but I do not think that is the case at all. Often, young people, because of peer pressure and because of their innocence, are drawn into unwise situations. Then there are the risks that gaming can lead to: for example, gaming addiction was mentioned by the right reverend Prelate the Bishop of Oxford. There is also the health impact and maybe a link with violent behaviour. There is the interactive nature of video game players, cyber bullying and the lack of a feeling of well-being. All these things can happen, which is why we need media literacy to ensure that young people know of those risks and how to cope with them.

The other thing that we perhaps need to look at is standardising some of the simple gateposts that we currently have, hence the amendment.

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It seems really important that we stick with the principle that if it is profoundly illegal in the offline world then we cannot allow it to be perpetrated in the online world. That compass needle has been behind some of the thinking of a lot of us in trying to grapple with this issue, which is very complex for those of us who are outside the world of tech and internet and coming new to it, but who have seen the results of some of those harms perpetrated. That is where the problem arises.

[Lord Bethell (Con)]

My Lords, I violently agree with my noble friend Lord Moylan that the grouping of this amendment is unfortunate. For that reason I am not going to plunge into the issue in huge detail. but there are a couple of things I would like to reassure my noble friend on, and I have a question for the Minister.

The noble Baroness, Lady Kidron, said there is a package of amendments around age verification and that we will have a lot of time to dive into this, and I think that is probably the right format for doing it. However, I reassure my noble friend Lord Moylan that he is absolutely right. The idea is not in any way to shut off the town square from everyone simply because there might be something scary there.

Clause 11(3) refers to priority content, which the noble Lord will know is to do with child abuse and fraudulent and severely violent content. This is not just any old stuff; this is hardcore porn and the rest. As in the real world, that content should be behind an age-verification barrier. At the moment we have a situation on the internet where, because it has not been well-managed for a generation, this content has found itself everywhere: on Twitter and Reddit, and all sorts of places where really it should not be because there are children there. We envisage a degree of tidying up of social media and the internet to make sure that the dangerous content is put behind age verification. What we are not seeking to do, and what would not be a benign or positive action, is to put the entire internet behind some kind of age-verification boundary. From that point of view, I completely agree with my noble friend.

[Baroness Benjamin (LD)]

My Lords, as might be expected, I will speak against Amendment 26 and will explain why.

The children’s charity Barnardo’s—here I declare an interest as vice-president—has said, as has been said several times before, that children are coming across pornographic content from as young as seven. Often they stumble across the content accidentally, unwittingly searching for terms such as “sex” or “porn”, without knowing what they mean. The impact that this is having on children is huge. It is harming their mental health and distorting their perception of healthy sexual relationships and consent. That will go with them into adulthood.

Age verification for pornography and age assurance to protect children from other harms are crucial to protect children from this content. In the offline world, children are rightly not allowed to buy pornographic DVDs in sex shops but online they can access this content at the click of a button. This is why I will be supporting the amendments from the noble Baroness, Lady Kidron, and the noble Lord, Lord Bethell, and am fully supportive of their age assurance and age verification schedule.

Online Safety Bill

Lord Bethell Excerpts

Committee stage
Tuesday 25th April 2023 Lords Chamber

I hope the Minister will see the logic of a level playing field to deliver a policy with widespread support across all ages and political parties. Indeed, without addressing pornography separately—and, in turn, quickly —we will pass a Bill with no discernible impact before the next general election. While they are walking to the polling station, parents will still fear what their children are looking at online. This is a quick win and a popular move, and I hope the Government will amend the Bill accordingly so that this House does not need to do so when we revisit this important issue on Report.

[Lord Bethell (Con)]

My Lords, it is a tremendous honour to follow the noble Lord, Lord Browne, who put the case extremely well; I agree with every word he just said. I thank the noble Baroness, Lady Ritchie, for bringing forward this issue, which she has done extremely well. I thank Christian Action Research and Education, which has been fundamental in thinking through some of these issues and has written an extremely good brief on the subject. There is indeed an urgent need for consistent regulation of pornographic content wherever it occurs online, whether it is in Section 3, Section 4, Section 5 or wherever. That is why, with the noble Baroness, Lady Kidron, the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Stevenson, I have tabled amendments to address age verification on pornography and harms in the round.

Our amendments, which we will get to on Thursday and on later days in Committee, are different from those raised by the noble Baroness, Lady Ritchie, and others, but it is worth noting that many of the principles are the same. In particular, all pornographic content should be subject to the same duties, in the interests of consistency and transparency, wherever it is. Porn is porn, regardless of where it occurs online, and it carries the same risk of harm, particularly to children, whether it is accessed on social media or on a dedicated porn site.

We know from the Children’s Commissioner’s research that, for instance, Twitter was absolutely the online platform where young people were most likely to have seen pornography. Not Pornhub or one of the big tubes—on Twitter. We also know that children will consistently watch porn on dedicated porn sites. So why do we have inconsistent regulation of pornographic content in the Bill? This is the question I address to my noble friend the Minister. We can and we will get to the debate on how we will do this—indeed, I welcome further discussion with the Minister on how, and encourage him to have conversations across the House on this.

For today, we must look at why we have inconsistent regulation for pornographic content and what that means. As currently drafted, Part 3 services and Part 5 services are not subject to the same duties, as the noble Baroness rightly pointed out. Part 3 services, which include the biggest and most popular pornographic websites, such as Pornhub and Xvideos, as well as sites that host pornographic content, such as Twitter, will not be subject to regulation, including age verification, until secondary legislation is introduced, thereby delaying regulation of the biggest porn sites until at the very least 2025, if not 2026. This will create a massively unlevel playing field which, as others have said, will disincentivise compliance across the board, as well as leaving children with unfettered access to pornography on both social media sites and other user-to-user sites such as Pornhub.

Meanwhile, whichever commercially produced pornography websites are left in Part 5 will, as has already been suggested, simply change their functionality to become user-to-user and avoid regulation for another three years. I have a way in which this can be prevented and the noble Baroness, Lady Ritchie, has her way, but for today I stand with her in asking why the Government think this lack of consistency and fragmentation in the regulation of an industry that destroys childhoods and has implications that reverberate across society are to be accepted.

I look forward to hearing what the Minister has to say. It is clear to me that there is a consensus across the Committee and at every stage of the Bill that pornography should be regulated in a way that is consistent, clear and implemented as quickly as possible following Royal Assent—I have suggested within six months. Therefore, I would welcome discussions with the noble Baroness, Lady Ritchie, the Minister and others to ensure that this can be achieved.

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[Lord Bethell (Con)]

Could the noble Lord advise us on how he would categorise a site such as Twitter, on which it is estimated that 13% of the page deliveries are to do with pornography? Does it qualify as a pornography site? To me, it is ambiguous. Such a large amount of its financial revenue comes from pages connected with pornography that it seems it has a very big foot in the pornography industry. How would he stop sites gaming definitions to benefit from one schedule or another? Does he think that puts great pressure on the regulator to be constantly moving the goalposts in order to capture who it thinks might be gaming the system, instead of focusing on content definition, which has a 50-year pedigree, is very well defined in law and is an altogether easier status to analyse and be sure about?

[Lord Allan of Hallam (LD)]

The Twitter scenario, and other scenarios of mixed sites, are some of the most challenging that we have to deal with. But I would say, straightforwardly, “Look, 13% is a big chunk, but the primary purpose of Twitter is not the delivery of pornography”. I use Twitter on a daily basis and I have never seen pornography on it. I understand that it is there and that people can go for it, and that is an issue, but I think people out there would say that for most people, most of the time, the primary purpose of Twitter is not pornography.

What we want to do—in answer to the noble Lord’s second point—is create an incentive for people to be recategorised in the right direction. There is an assumption here that it is all going to be about gaming the system. I actually think that there is an opportunity here for genuine changes. There will be a conversation with Twitter. It will be interesting, given Twitter’s current management—apparently it is run by a dog, so there will be a conversation with the dog that runs Twitter. In that conversation, the regulator, Ofcom, on our behalf, will be saying, “You could change your terms of service and get rid of pornography”. Twitter will say yes or no. If it says no, Ofcom will say, “Well, here are all the things we expect you to do in order to wall off that part of the site”.

That is a really healthy and helpful conversation to have with Twitter. I expect it is listening now and already thinking about how it will respond. But it would expect that kind of treatment and conversation to be different; and I think the public would expect that conversation to be a different and better conversation than just saying “Twitter, you’re Pornhub. We’re just going to treat you like Pornhub”.

That is the distinction. As I say, we have an opportunity to get people to be more robust about either limiting or removing pornography, and I fear that the amendments we have in front of us would actually undermine rather than enhance that effort.

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[Lord Parkinson of Whitley Bay (Con)]

Yes, that is correct. I was trying to address the points raised by the noble Baroness, but the noble Lord is right. The point on whether people might try to be treated differently by allowing comments or reviews on their content is that they would be treated the same way. That is the motivation behind the noble Baroness’s amendment trying to narrow the definition. There is no risk that a publisher of pornographic content could evade their Part 5 duties by enabling comments or reviews on their content. That would be the case whether or not those reviews contained words, non-verbal indications that a user liked something, emojis or any other form of user-generated content.

That is because the Bill has been designed to confer duties on different types of content. Any service with provider pornographic content will need to comply with the Part 5 duties to ensure that children cannot normally encounter such content. If they add user-generated functionality—

[Lord Bethell (Con)]

I am sorry to come back to the same point, but let us take the Twitter example. As a publisher of pornography, does Twitter then inherit Part 5 responsibilities in as much as it is publishing pornography?

[Lord Parkinson of Whitley Bay (Con)]

It is covered in the Bill as Twitter. I am not quite sure what my noble friend is asking me. The harms that he is worried about are covered in different ways. Twitter or another social medium that hosts such content would be hosting it, not publishing it, so would be covered by Part 3 in that instance.

[Lord Bethell (Con)]

Maybe my noble friend the Minister could write to me to clarify that point, because it is quite a significant one.

[Lord Parkinson of Whitley Bay (Con)]

Perhaps I will speak to the noble Lord afterwards and make sure I have his question right before I do so.

I hope that answers the questions from the noble Baroness, Lady Ritchie, and that on that basis, she will be happy to withdraw her amendment.

Online Safety Bill

Lord Bethell Excerpts

Committee stage
Thursday 27th April 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, I rise to speak along similar lines to the noble Baroness, Lady Kidron. I will address my noble friend Lord Moylan’s comments. I share his concern that we must not make the perfect the enemy of the good but, like the noble Baroness, I do not think that size is the key issue here, because of how tech businesses grow. Tech businesses are rather like building a skyscraper: if you get the foundations wrong, it is almost impossible to change how safe the building is as it goes up and up. As I said earlier this week, small tech businesses can become big very quickly, and, if you design your small tech business with the risks to children in mind at the very beginning, there is a much greater chance that your skyscraper will not wobble as it gets taller. On the other hand, if your small business begins by not taking children into account at all, it is almost impossible to address the problem once it is huge. I fear that this is the problem we face with today’s social media companies.

The noble Baroness, Lady Kidron, hit the nail on the head, as she so often does, in saying that we need to think about risk, rather than size, as the means of differentiating the proportionate response. In Clause 23, which my noble friend seeks to amend, the important phrase is “use proportionate measures” in subsection (2). Provided that we start with a risk assessment and companies are then under the obligation to make proportionate adjustments, that is how you build safe technology companies—it is just like how you build safe buildings.

[Lord Bethell (Con)]

My Lords, I will build on my noble friend’s comments. We have what I call the Andrew Tate problem. That famous pornographer and disreputable character started a business in a shed in Romania with a dozen employees. By most people’s assessment, it would have been considered a small business but, through his content of pornography and the physical assault of women, he extremely quickly built something that served an estimated 3 billion pages, and it has had a huge impact on the children of the English-speaking world. A small business became a big, nasty business very quickly. That anecdote reinforces the point that small does not mean safe, and, although I agree with many of my noble friend’s points, the lens of size is perhaps not the right one to look through.

[Lord Allan of Hallam (LD)]

My Lords, I did not want to interrupt the noble Lord, Lord Moylan, in full flow as he introduced the amendments, but I believe he made an error in terms of the categorisation. The error is entirely rational, because he took the logical position rather than the one in the Bill. It is a helpful error because it allows us to quiz the Minister on the rationale for the categorisation scheme.

As I read it, in Clause 86, the categories are: category 1, which is large user-to-user services; category 2A, which is search or combined services; and category 2B, which is small user-to-user services. To my boring and logical binary brain, I would expect it to be: “1A: large user-to-user”; “1B: small user-to-user”; “2A: large search”; and “2B: small search”. I am curious about why a scheme like that was not adopted and we have ended up with something quite complicated. It is not only that: we now have this Part 3/Part 5 thing. I feel that we will be confused for years to come: we will be deciding whether something is a Part 3 2B service or a Part 5 service, and we will end up with a soup of numbers and letters that do not conform to any normal, rational approach to the world.

Online Safety Bill

Lord Bethell Excerpts

Committee stage
Thursday 27th April 2023 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, my contribution will be less officious than my intervention earlier in this group. In the last couple of years since I returned to the House—as I describe it—having spent time at the Charity Commission, I have noticed a new practice emerging of noble Lords reading out other people’s speeches. Every time I had seen it happen before, I had not said anything, but today I thought, “I can’t sit here and not say anything again”. I apologise for my intervention.

I am grateful to my noble friend Lord Moylan for bringing forward his amendments and for introducing them in the incredibly clear way he did; they cover some very complex and diverse issues. I know that there are other amendments in the group which might be described as similar to his.

There are a couple of things I want to highlight. One interesting thing about the debate on this group is the absence of some of our legal friends—I apologise to my noble friend Lady Buscombe, who is of course a very distinguished lawyer. The point I am making is that we are so often enriched by a lot of legal advice and contributions on some of the more challenging legal issues that we grapple with, but we do not have that today, and this is a very difficult legal issue.

It is worth highlighting again, as has been touched on a little in some of the contributions, the concern, as I understand it, with how the Bill is drafted in relation to illegal content and the potential chilling effect of these clauses on social media platforms. As has already been said, there is a concern that it might lead them to take a safety-first approach in order to avoid breaking the law and incurring the sanctions and fines that come with the Bill, which Ofcom will have the power to apply. That is the point we are concerned with here. It is the way in which this is laid out, and people who are much better equipped than I am have already explained the difference between evidence versus reasonable grounds to infer.

What the noble Lord, Lord Allan, hit on in his contribution is also worth taking into account, and that is the role of Ofcom in this situation. One of the things I fear, as we move into an implementation phase and the consequences of the Bill start to impact on the social media firms, is the potential for the regulator to be weaponised in a battle on the cultural issues that people are becoming increasingly exercised about. I do not have an answer to this, but I think it is important to understand the danger of where we might get to in the expectations of the regulator if we create a situation where the social media platforms are acting in a way that means people are looking for recourse or a place to generate further an argument and a battle that will not be helpful at all.

I am not entirely sure, given my lack of legal expertise —this is why I would have been very grateful for some legal expertise on this group—whether what my noble friend is proposing in his amendments is the solution, but I think we need to be very clear that this is a genuine problem. I am not sure, as things stand in the Bill, that we should be comfortable that it is not going to create problems. We need to find a way to be satisfied that this has been dealt with properly.

[Lord Bethell (Con)]

It is a great honour to follow my noble friend. I completely agree with her that this is a powerful discussion and there are big problems in this area. I am grateful also to my noble friend Lord Moylan for raising this in the first place. It has been a very productive discussion.

I approach the matter from a slightly different angle. I will not talk about the fringe cases—the ones where there is ambiguity, difficulty of interpretation, or responsibility or regulatory override, all of which are very important issues. The bit I am concerned about is where primary priority content that clearly demonstrates some kind of priority offence is not followed up by the authorities at all.

The noble Lord, Lord Allan, referred to this point, although he did slightly glide over it, as though implying, if I understood him correctly, that this was not an area of concern because, if a crime had clearly been committed, it would be followed up on. My fear and anxiety is that the history of the internet over the last 25 years shows that crimes—overt and clear crimes that are there for us to see—are very often not followed up by the authorities. This is another egregious example of where the digital world is somehow exceptionalised and does not have real-world rules applied to it.

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[Baroness Fox of Buckley (Non-Afl)]

I want to clarify one point. I have had a slightly different experience, which is that for many people—women, at least—whom I have talked to recently, there is an over-enthusiasm and an over-zealous attitude to policing the speech of particular women and, as we have already heard, gender-critical women. It is often under the auspices of hate speech and there is all sorts of discussion about whether the police are spending too long trawling through social media. By contrast, if you want to get a policeman or policewoman involved in a physical crime in your area, you cannot get them to come out. So I am not entirely convinced. I think policing online speech at least is taking up far too much of the authorities’ time, not too little time, and distracting them from solving real social and criminal activity.

[Lord Bethell (Con)]

I defer to the noble Baroness, Lady Fox, on speech crime. That is not the area of my expertise, and it is not the purpose of my points. My points were to do with the kinds of crime that affect children in particular. His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services is very specific about that point. It says that “unacceptable delays are commonplace” and it gives a very large number of case studies. I will not go through them now because it is Thursday afternoon, but I think noble Lords can probably imagine the kinds of things we are talking about. They include years of delay, cases not taken seriously or overlooked, evidence lost, and so forth. The report found that too often children were put at risk because of this, and offenders were allowed to escape justice, and it gave 17 recommendations for how the police force should adapt in order to meet this challenge.

So my questions to the Minister are these. When we talk about things such as age verification for hardcore porn, we are quite often told that we do not need to worry about some of this because it is covered by illegal content provisions, and we should just leave it to the police to sort out. His Majesty’s Inspectorate gives clear evidence—this is a recent report from last month—that this is simply not happening in the way it should be. I therefore wondered what, if anything, is in the Bill to try to close down this particular gap. That would be very helpful indeed.

If it is really not for the purposes of this Bill at all—if this is actually to do with other laws and procedures, other departments and the way in which the resources for the police are allocated, as the noble Baroness, Lady Fox, alluded to—what can the Government do outside the boundaries of this legislation to mobilise the police and the prosecution services to address what I might term “digital crimes”: that is, crimes that would be followed up with energy if they occurred in the real world but, because they are in the digital world, are sometimes overlooked or forgotten?

[Lord Allan of Hallam (LD)]

My Lords, I would like to mention one issue that I forgot to mention, and I think it would be more efficient to pose the question now to the Minister rather than interject when he is speaking.

On the Government’s Amendments 136A, 136B and 136C on the immigration offences, the point I want to make is that online services can be literal life-savers for people who are engaged in very dangerous journeys, including journeys across the Channel. I hope the Minister will be clear that the intention here is to require platforms to deal only with content, for example, from criminals who are offering trafficking services, and that there is no intention to require platforms somehow to withdraw services from the victims of those traffickers when they are using those services in the interest of saving their own lives or seeking advice that is essential to preserving their own safety.

That would create—as I know he can imagine—real ethical and moral dilemmas, and we should not be giving any signal that we intend to require platforms to withdraw services from people who are in desperate need of help, whatever the circumstances.

--- Later in debate ---

[Lord Knight of Weymouth (Lab)]

My Lords, in keeping with the Stevenson-Knight double act, I am leaving it to my noble friend to wind up the debate. I will come in at this point with a couple of questions and allow the Minister to have a bit of time to reflect on them. In doing so, I reinforce my support for Amendment 295 in the name of the noble Lord, Lord Russell, which refers to volume and frequency also being risk factors.

When I compare Amendment 20 with Clause 10(6), which refers to children’s risk assessments and what factors should be taken into account in terms of the risk profile, I see some commonality and then some further things which Amendment 20, tabled by the noble Baroness, Lady Kidron, adds. In my opinion, it adds value. I am interested in how the Minister sees the Bill, as it stands currently, covering some issues that I will briefly set out. I think it would be helpful if the Committee could understand that there may be ways that the Bill already deals with some of the issues so wonderfully raised by the noble Baroness; it would be helpful if we can flush those out.

I do not see proposed new subsection (b)(iii),

“risks which can build up over time”,

mentioned in the Bill, nor explicit mention of proposed new subsection (b)(iv),

“the ways in which level of risks can change when experienced in combination with others”,

which I think is critical in terms of the way the systems work. Furthermore, proposed new subsection (b)(vii),

“the different ways in which the service is used including but not limited to via virtual and augmented reality technologies”,

starts to anticipate some other potential harms that may be coming very rapidly towards us and our children. Again, I do not quite see it included. I see “the design of functionalities”, “the business model” and “the revenue model”. There is a lot about content in the original wording of the Bill, which is less so here, and, clearly, I do not see anything in respect of the UN Convention on the Rights of the Child, which has been debated in separate amendments anyway. I wanted to give the Minister some opportunity on that.

[Lord Bethell (Con)]

My Lords, I restate my commitment to Amendments 20, 93 and 123, which are in my name and those of the noble Baroness, Lady Kidron, the right reverend Prelate the Bishop of Oxford, and the noble Lord, Lord Stevenson, and the noble Baroness’s Amendment 74. It is a great honour to follow the noble Lord, Lord Knight. He put extremely well some key points about where there are gaps in the existing Bill. I will build on why we have brought forward these amendments in order to plug these gaps.

In doing so, I wish to say that it has been a privilege to work with the right reverend Prelate, the noble Baroness and the noble Lord, Lord Stevenson. We are not from the same political geographies, but that collaboration demonstrates the breadth of the political concern, and the strength of feeling across the Committee, about these important gaps when it comes to harms—gaps that, if not addressed, will put children at great risk. In this matter we are very strongly united. We have been through a lot together, and I believe this unlikely coalition demonstrates how powerful the feelings are.

It has been said before that children are spending an increasing amount of their lives online. However, the degree of that inflection point in the last few years has been understated, as has how much further it has got to go. The penetration of mobile phones is already around 75% of 10 year-olds—it is getting younger, and it is getting broader.

In fact, the digital world is totally inescapable in the life of a child, whether that is for a young child who is four to six years old or an older child who is 16 or 17. It is increasingly where they receive their education—I do not think that is necessarily a good thing, but that is arguable—it is where they establish and maintain their personal relationships and it is a key forum for their self-expression.

For anyone who suspects otherwise, I wish to make it clear that I firmly believe in innovation and progress, and I regard the benefits of the digital world as really positive. I would never wish to prevent children accessing the benefits of the internet, the space it creates for learning and building community, and the opportunities it opens for them. However, environments matter. The digital world is not some noble wilderness free from original sin or a perfect, frictionless marketplace where the best, nicest, and most beautiful ideas triumph. It is a highly curated experience defined by the algorithms and service agreements of the internet companies. That is why we need rules to ensure that it is a safe space for children.

I started working on my first internet business in 1995, nearly 30 years ago. I was running the Ministry of Sound, and we immediately realised that the internet was an amazing way of getting through to young people. Our target audiences were either clubbers aged over 18 or the younger brothers and sisters of clubbers who bought our merchandise. The internet gave us an opportunity to get past all the normal barriers—past parents and regulation to reach a wonderful new market. I built a good business and it worked out well for me, but those were the days before GDPR and what we understand from the internet. I know from my experience that we need to ensure that children are protected and shielded from the harms that bombard them, because there are strong incentives—mainly financial but also other, malign incentives—for bad actors to use the internet to get through to children.

Unfortunately, as the noble Baroness, Lady Kidron, pointed out, the Bill as it stands does not achieve that aim. Take, for example, contact harms, such as grooming and child sexual abuse. In February 2020, Bark, a US-based organisation that helps families manage and protect their children’s digital lives, launched an 11 year-old persona online who it called Bailey. Bailey’s online persona clearly shows that she is an ordinary 11 year-old, posting content that is ordinary for an 11 year-old. Within 30 seconds of her persona being launched online she received a like from a man whose profile picture was a penis. Within two minutes, multiple messages were received from men, and within five minutes a video call. Shortly afterwards, she received requests from men to meet up. I remind your Lordships that Bailey was 11 years old. These are not trivial content harms; these are attempts to contact a minor using the internet as a medium.

Online Safety Bill

Lord Bethell Excerpts

Committee stage
Tuesday 2nd May 2023 Lords Chamber

[Lord Knight of Weymouth (Lab)]

My Lords, I too agree that this has been a really useful and interesting debate. It has featured many birthday greetings to the noble Baroness, Lady Kidron, in which I obviously join. The noble Lord, Lord Moylan, bounced into the debate that tested the elasticity of the focus of the group, and bounced out again. Like the noble Lord, Lord Clement-Jones, I was particularly struck by the speech from the noble Baroness, Lady Harding, on the non-mandatory nature of the codes. Her points about reducing Ofcom’s workload, and mandatory codes having precedent, were really significant and I look forward to the Minister’s response.

If I have understood it correctly, the codes will be generated by Ofcom, and the Secretary of State will then table them as statutory instruments—so they will be statutory, non-mandatory codes, but with statutory penalties. Trying to unravel that in my mind was a bit of a thing as I was sitting there. Undoubtedly, we are all looking forward to the Minister’s definition of harm, which he promised us at the previous meeting of the Committee.

I applaud the noble Lord, Lord Russell, for the excellent way in which he set out the issues in this grouping and—along with the Public Bill Office—for managing to table these important amendments. Due to the Bill’s complexity, it is an achievement to get the relatively simple issue of safety by design for children into amendments to Clause 10 on children’s risk assessment duties for user-to-user services; Clause 11 on the safety duties protecting children; and the reference to risk assessments in Clause 19 on record-keeping. There is a similar set of amendments applying to search; to the duties in Clause 36 on codes of practice duties; to Schedule 4 on the content of codes of practice; and to Clause 39 on the Secretary of State’s powers of direction. You can see how complicated the Bill is for those of us attempting to amend it.

What the noble Lord and his amendments try to do is simple enough. I listened carefully to the noble Baroness, Lady Fox, as always. The starting point is, when designing, to seek to eliminate harm. That is not to say that they will eliminate all potential harms to children, but the point of design is to seek to eliminate harms if you possibly can. It is important to be clear about that. Of course, it is not just the content but the systems that we have been talking about, and ensuring that the codes of practice that we are going to such lengths to legislate for are stuck to—that is the point made by the noble Baroness, Lady Harding—relieving Ofcom of the duty to assess all the alternative methods. We certainly support the noble Lord, Lord Russell, in his amendments. They reinforce that it is not just about the content; the algorithmic dissemination, in terms of volume and context, is really important, especially as algorithms are dynamic—they are constantly changing in response to the business models that underpin the user-to-user services that we are debating.

The business models want to motivate people to be engaged, regardless of safety in many ways. We have had discussion of the analogy on cars and planes from the noble Lord, Lord Allan. As I recall, in essence he said that in this space there are some things that you want to regulate like planes, to ensure that there are no accidents, and some where you trade off freedom and safety, as we do with the regulation of cars. In this case, it is a bit more like regulating for self-driving cars; in that context, you will design a lot more around trying to anticipate all the things that humans when driving will know instinctively, because they are more ethical individuals than you could ever programme an AI to be when driving a car. I offer that slight adjustment, and I hope that it helps the noble Lord, Lord Moylan, when he is thinking about trains, planes and automobiles.

In respect of the problem of the business models and their engagement over safety, I had contact this weekend and last week from friends much younger than I am, who are users of Snap. I am told that there is an AI chatbot on Snap, which I am sure is about engaging people for longer and collecting more data so that you can engage them even longer and, potentially, collect data to drive advertising. But you can pay to get rid of that chatbot, which is the business model moving somewhere else as and when we make it harder for it to make money as it is. Snap previously had location sharing, which you had to turn off. It created various harms and risks for children that their location was being shared with other people without them necessarily authorising it. We can all see how that could create issues.

[Lord Bethell (Con)]

Does the noble Lord have any reflections, talking about Snap, as to how the internet has changed in our time? It was once really for adults, when it was on a PC and it was only adults who had access to it. There has, of course, been a huge explosion in child access to the internet because of the mobile phone—as we have heard, two-thirds of 10 year-olds now have a mobile phone—and an app such as Snap now has a completely different audience from the one it had five or 10 years ago. Does the noble Lord have any reflections on what the consequences of the explosion of children’s access to applications such as Snap has been on those thinking about the harms and protection of children?

Online Safety Bill

Lord Bethell Excerpts

Committee stage
Tuesday 2nd May 2023 Lords Chamber

[Baroness Kidron (CB)]

My Lords, I support the noble Baroness, Lady Ritchie, in her search to make it clear that we do not need to take a proportionate approach to pornography. I would be delighted if the Minister could indicate in his reply that the Government will accept the age-assurance amendments in group 22 that are coming shortly, which make it clear that porn on any regulated service, under Part 3 or Part 5, should be behind an age gate.

In making the case for that, I want to say very briefly that, after the second day of Committee, I received a call from a working barrister who represented 90 young men accused of serious sexual assault. Each was a student and many were in their first year. A large proportion of the incidents had taken place during freshers’ week. She rang to make sure that we understood that, while what each and every one of them had done was indefensible, these men were also victims. As children brought up on porn, they believed that their sexual violence was normal—indeed, they told her that they thought that was what young women enjoyed and wanted. On this issue there is no proportionality.

[Lord Bethell (Con)]

My Lords, I also support Amendments 29, 83 and 103 from the noble Baroness, Lady Ritchie. As currently drafted, the Bill makes frequent reference to Ofcom taking into account

“the size and capacity of … a service”

when it determines the extent of the measures a site should apply to protect children. We have discussed size on previous days; I am conscious that the point has been made in part, but I hope the Committee will forgive me if I repeat it clearly. When it comes to pornography and other harms to children, size does matter. As I have said many times recently, porn is porn no matter the size of the website or publisher involved with it. It does not matter whether it is run by a huge company such as MindGeek or out of a shed in London or Romania by a small gang of people. The harm of the content to children is still exactly the same.

Our particular concern is that, if the regulations from Ofcom are applied to the bigger companies, that will create a lot of space for smaller organisations which are not bending to the regulations to try to gain a competitive advantage over the larger players and occupy that space. That is the concern of the bigger players. They are very open to age verification; what concerns them is that they will face an unequal, unlevel playing field. It is a classic concern of bigger players facing regulation in the market: that bad actors will gain competitive advantage. We should be very cognisant of that when thinking about how the regulations on age verification for porn will be applied. Therefore, the measures should be applied in proportion to the risk of harm to children posed by a porn site, not in proportion to the site’s financial capacity or the impact on its revenues of basic protections for children.

In this, we are applying basic, real-world principles to the internet. We are denying its commonly held exceptionalism, which I think we are all a bit tired of. We are applying the same principles that you might apply in the real world, for instance, to a kindergarten, play centre, village church hall, local pub, corner shop or any other kind of business that brings itself in front of children. In other words, if a company cannot afford to implement or does not seem capable of implementing measures that protect children, it should not be permitted by law to have a face in front of the general public. That is the principle that we apply in the real world, and that is the principle we should be applying on the internet.

Allowing a dimension of proportionality to apply to pornography cases creates an enormous loophole in the legislation, which at best will delay enforcement for particular sites when it is litigated and at worst will disable regulatory action completely. That is why I support the amendments in the name of the noble Baroness, Lady Ritchie.

--- Later in debate ---

[Lord Knight of Weymouth (Lab)]

My Lords, I think the whole Committee is grateful to my noble friend Lady Ritchie for introducing these amendments so well.

Clearly, there is a problem. The anecdote from the noble Baroness, Lady Kidron, about the call she had had with the barrister relating to those freshers’ week offences, and the sense that people were both offenders and victims, underscored that. In my Second Reading speech I alluded to the problem of the volume of young people accessing pornography on Twitter, and we see the same on Reddit, Discord and a number of other platforms. As the noble Baroness said, it is changing what so many young people perceive to be normal about sexual relationships, and that has to be addressed.

Ofcom very helpfully provided a technical briefing on age assurance and age verification for Members of your Lordships’ House—clearly it did not persuade everybody, otherwise we would not be having this debate. Like the noble Lord, Lord Clement-Jones, I am interested in this issue of whether it is proportionate to require age verification, rather than age assurance.

For example, on Amendment 83 in my noble friend’s name in respect of search, I was trying to work out in my own mind how that would work. If someone used search to look for pornographic content and put in an appropriate set of keywords but was not logged in—so the platform would not know who they are—and if age verification was required, would they be interrupted with a requirement to go through an age-verification service before the search results were served up? Would the search results be served up but without the thumbnails of images and with some of the content suppressed? I am just not quite sure what the user experience would be like with a strict age-verification regime being used, for example, in respect of search services.

[Lord Bethell (Con)]

My Lords, some light can be shone on that question by thinking a little about what the gambling industry has been through in the last few years as age verification has got tougher in that area. To answer the noble Lord’s question, if someone does not log into their search and looks for a gambling site, they can find it, but when they come to try to place a bet, that is when age verification is required.

--- Later in debate ---

[Lord Knight of Weymouth (Lab)]

My noble friend Lord Stevenson apologises that he can no longer be with the Committee, and he apologised to me that I suddenly find myself introducing this amendment. It heads up an important group because it tackles the issue of enforcement and, in essence, how we ensure that Ofcom has all the tools it needs to persuade some of the richest, largest and most litigious companies in the world to comply with the regime we are setting out in the Bill. Amendment 33, which my noble friend tabled and I am moving, sets out an offence of failing to comply with a relevant duty in respect of the child safety duties, if they do so negligently, and that it would be an imprisonable offence for a senior manager or other officer. I recall that those of us who sat on the Joint Committee discussed the data protection regime and whether there could be a similarly designated officer to the data controller in companies in respect of the safety duties with which the company would have to comply.

Clearly, this amendment has now been superseded by the government amendments that were promised, and which I am sure my noble friend was looking to flush out with this amendment. Flushed they are, so I will not go into any great detail about Amendment 33, because it is better to give time to the Minister to clarify the Government’s intentions. I shall listen carefully to him, as I will to the noble Lord, Lord Curry, who has great expertise in better regulation and who, I am sure, through talking to his amendments, will give us the benefit of his wisdom on how we can make this stick.

That leaves my Amendment 219, which in essence is about the supply chain that regulated companies use. I am grateful to the noble Lords, Lord Mann and Lord Austin, and the noble Baroness, Lady Deech, for putting their names to the amendment. Their enthusiasm did not run to missing the Arsenal game and coming to support in the Chamber, but that implies great trust in my ability to speak to the amendment, for which I accept the responsibility and compliment.

The amendment was inspired by a meeting that some Members of your Lordships’ House and the other place had in an all-party group that was looking, in particular, at the problems of the incel culture online. We heard from various organisations about how incel culture relates to anti-Semitism and misogyny, and how such content proliferates and circulates around the web. It became clear that it is fairly commonplace to use things such as cloud services to store the content and that the links are then shared on platforms. On the mainstream platforms, there might be spaces where, under the regime we are discussing under the Bill now that we have got rid of the controversial “legal but harmful” category, this content might be seen to be relatively benign, certainly in the category of freedom of expression, but starts to capture the interest of the target demographic for it. They are then taken off by links into smaller, less regulated sites and then, in turn, by links into cloud services where the real harmful content is hosted.

Therefore, by way of what reads as an exceptionally complicated and difficult amendment in respect of entities A, B and C, we are trying to understand whether it is possible to bring in those elements of the supply chain, of the technical infrastructure, that are used to disseminate hateful content. Such content too often leads to young men taking their own lives and to the sort of harm that we saw in Plymouth, where that young man went on the rampage and killed a number of people. His MP was one of the Members of Parliament at that meeting. That is what I want to explore with Amendment 219, which opens the possibility for this regime to ensure that well-resourced platforms cannot hide behind other elements of the infrastructure to evade their responsibilities.

[Lord Bethell (Con)]

My Lords, I beg the forbearance of the Committee because, despite the best efforts of the Whips, this group includes two major issues that I must tackle.

Starting with senior management liability, I thank the Minister and the entire ministerial team for their engagement on this big and important subject. I am enormously proud of the technology sector and the enormous benefits that it has brought to the economy and to society. I remain a massive champion of innovation and technology in the round. However, senior executives in the technology sphere have had a long-standing blind spot. Their manifesto is that the internet is somehow different from the rest of the real world and that nothing must stand on its way. My noble friend Lord Moylan gave that pony quite a generous trot round the arena, so I will not go through it again, but when it comes to children, they have consistently failed to take seriously their safeguarding responsibilities.

I spoke in Committee last week of my experience at the Ministry of Sound. When I saw the internet in the late 1990s, I immediately saw a wonderful opportunity to target children, to sell to them, to get past their parents and normal regulation, and to get into their homes and their wallets. Lots of other people had the same thought, and for a long time we have let them do what they like. This dereliction of their duty of care has led to significant consequences, and the noble Lord, Lord Russell, spoke very movingly about that. Those consequences are increasing all the time because of the take-up of mobile phones and computers by ever younger children. That has got to stop, and it is why we are here. That is why we have this Bill—to stop those consequences.

To change this, we cannot rely just on rhetoric, fines and self-regulation. We tried that, the experiment has failed, and we must try a different approach. We found that exhortations and a playing-it-nicely approach failed in the financial sector before the financial crisis. We remember the massive economic and societal costs of that failure. Likewise, in the tech sector, senior managers of firms big and small must be properly incentivised and held accountable for identifying and mitigating risks to children in a systematic way. That is why introducing senior management liability for child safety transgressions is critical. Senior management must be accountable for ensuring that child safety permeates the company and be held responsible when risks of serious harm arise or gross failures take place. Just think how the banks have changed their attitude since the financial crisis because of senior liability.

I am pleased that the Government have laid their own amendment, Amendment 200A. I commend the Minister for bringing that forward and am extremely grateful to him and to the whole team for their engagement around this issue. The government amendment creates a new offence, holding senior managers accountable for failure to comply with confirmation decisions from Ofcom relating to protecting children from harmful content. I hope that my noble friend will agree that it is making Ofcom’s job easier by providing clear consequences for the non-enforcement of such decisions.

It is a very good amendment, but there are some gaps, and I would like to address those. It is worrying that the government amendment does not cover duties related to tackling child sexual exploitation and abuse. As it stands, this amendment is a half-measure which fails to hold senior managers liable for the most severe abuse online. Child sexual abuse and exploitation offences are at a record high, as we heard earlier. NSPCC research shows that there has been an 84% rise in online grooming since 2017-18. Tech companies must be held accountable for playing their role in tackling this.

That is why the amendment in my name does the following: first, it increases the scope of the Government’s amendment to make individuals also responsible for confirmation decisions on illegal safety duties related to child sexual abuse and exploitation. Secondly, it brings search services into scope, including both categories of service providers, which is critical for ensuring that a culture of compliance is adopted throughout the sector.

Online Safety Bill

Lord Bethell Excerpts

Committee stage
Thursday 11th May 2023 Lords Chamber

[Baroness Merron (Lab)]

My Lords, I shall speak to this group which includes Amendments 52, 99 and 222 in my name. These are complemented by Amendments 223 and 224 in the name of my noble friend Lord Knight. I am grateful to the noble Lords, Lord Clement-Jones and Lord Bethell, and to the noble Baroness, Lady Bennett, for putting their names to the amendments in this group. I am also grateful to the noble Lord, Lord Moylan, for tabling Amendments 59, 107 and 264. I appreciate also the work done by the APPG on Digital Regulation and Responsibility and by Full Fact on this group, as well as on many others in our deliberations.

These amendments would ensure that platforms were required to undertake a health misinformation and disinformation risk assessment. They would also require that they have a clear policy in their terms of service on dealing with harmful, false and misleading health information, and that there are mechanisms to support and monitor this, including through the effective operation of an advisory committee which Ofcom would be required to consult. I appreciate that the Minister may wish to refer to the false communication offence in Clause 160 as a reason why these amendments are not required. In order to pre-empt this suggestion, I put it to him that the provision does not do the job, as it covers only a user sending a knowingly false communication with the intention of causing harm, which does not cover most of the online health misinformation and disinformation about which these amendments are concerned.

Why does all this matter? The stakes are high. False claims about miracle cures, unproven treatments and dangerous remedies can and do spread rapidly, leading people to make the poorest of health decisions, with dire consequences. We do not have to go far back in time to draw on the lessons of our experience. It is therefore disappointing that the Government have not demonstrated, through this Bill, that they have learned the lessons of the Covid-19 pandemic. This is of concern to many health practitioners and representatives, as well as to Members of your Lordships’ House. We all remember the absolute horror of seeing false theories being spread quickly online, threatening to undermine the life-saving vaccine rollout. In recent years, the rising anti-vaccine sentiment has certainly contributed to outbreaks of preventable diseases that had previously been eradicated. This is a step backwards.

In 2020, an estimated 5,800 people globally were admitted to hospital because of false information online relating to Covid-19, with at least 800 people believed to have died because they followed this misinformation or disinformation. In 2021, the Royal College of Obstetricians and Gynaecologists found that only 40% of women offered the vaccine against Covid-19 had accepted it, with many waiting for more evidence that it would be safe. It is shocking to recall that, in October 2021, one in five of the most critically ill Covid patients was an unvaccinated, pregnant woman.

If we look beyond Covid-19, we see misinformation and disinformation affecting many other aspects of health. I will give a few examples. There are false claims about cancer treatment—for example, lemons treat cancer better than chemotherapy; tumours are there to save your life; cannabis oil cures cancer; rubbing hydrogen peroxide on your skin will treat cancer. Just last year, the lack of publicly available information about Mpox fuelled misinformation online. There is an issue about the Government’s responsibility for ensuring that there is publicly available information about health risks. In this respect, the lack of it—the void—led to a varied interpretation and acceptance of the public health information that was available, limited though it was. UNAIDS also expressed concern that public messaging on Mpox used language and imagery that reinforced homophobic and racist stereotypes.

For children, harmful misinformation has linked the nasal flu vaccine to an increase in Strep A infections. In late 2022, nearly half of all parents falsely believed these claims, such that the uptake of the flu vaccine among two and three year-olds dropped by around 11%. It is not just that misinformation and disinformation may bombard us online and affect us; there are also opportunities for large, language-model AIs such as ChatGPT to spread misinformation.

The Government had originally promised to include protections from harmful false health content in their indicative list of harmful content that companies would have been required to address under the now removed adult safety duties, yet we find that the Bill maintains the status quo, whereby platforms are left to their own devices as to how they tackle health misinformation and disinformation, without the appropriate regulatory oversight. It is currently up to them, so they can remove it at scale or leave it completely unchecked, as we recently saw when Twitter stopped enforcing its Covid-19 misinformation policy. This threatens not just people’s health but their freedom of expression and ability to make proper informed decisions. With that in mind, I look forward to amendments relating to media literacy in the next group that the Committee will consider.

I turn to the specific amendments. The new clause proposed in Amendment 52 would place a duty on category 1 platforms to undertake a health misinformation risk assessment and set out a policy on their treatment of health misinformation content. It would also require that the policy and related terms of service are consistently applied and clear and accessible—something that we have previously debated in this Committee. It also defines what is meant by

“harmful health disinformation and misinformation”—

and, again, on that we have discussed the need for clarity and definition.

Amendment 99 would require Ofcom to consult an advisory committee on disinformation and misinformation when preparing draft codes of practice or amendments to such codes. Amendment 222 is a probing amendment and relates to the steps, if any, that Ofcom will be expected to take to avoid the advisory committee being dominated by representatives of regulated services. It is important to look at how the advisory committee is constructed, as that will be key not just to the confidence that it commands but to its effectiveness.

Amendment 223, in the name of my noble friend Lord Knight, addresses the matter of timeliness in respect of the establishment of the advisory committee, which should be within six months of the Bill being passed. Amendment 224, also in the name of my noble friend Lord Knight, would require the advisory committee to consider as part of its first report whether a dedicated Ofcom code of practice in this area would be effective in the public interest. This would check that we have the right building blocks in place. With that in mind, I beg to move.

[Lord Bethell (Con)]

My Lords, it is a great honour to rise after the noble Baroness, Lady Merron, who spoke so clearly about Amendment 52 and the group of amendments connected with health misinformation, some of which stand also in my name.

As the noble Baroness rightly pointed out, we have known for a long time the negative impact of social media, with all its death scrolls, algorithms and rabbit holes on vaccine uptake. In 2018, the University of Southampton did a study of pregnant women and found that those who reported using social media to research antenatal vaccinations were 58% less likely to accept the whooping cough vaccine. Since then, things have only got worse.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

My Lords, I have attached my name to Amendments 52 and 99 in the name of the noble Baroness, Lady Merron, respectively signed by the noble Lords, Lord Bethell and Lord Clement-Jones, and Amendment 222 in her name. I entirely agree with what both the noble Baroness, Lady Merron, and the noble Lord, Lord Bethell, said. The noble Lord in particular gave us a huge amount of very well-evidenced information on the damage done during the Covid pandemic—and continuing to be done—by disinformation and misinformation. I will not repeat what they said about the damage done by the spread of conspiracy theories and anti-vaccination falsehoods and the kind of malicious bots, often driven by state actors, that have caused such damage.

I want to come from a different angle. I think we were—until time prevented it, unfortunately—going to hear from the noble Baroness, Lady Finlay of Llandaff, which would have been a valuable contribution to this debate. Her expert medical perspective would have been very useful. I think that she and I were the only two Members in the Committee who took part in the passage of the Medicines and Medical Devices Act. I think it was before the time of the noble Lord, Lord Bethell—he is shaking his head; I apologise. He took part in that as well. I also want to make reference to discussions and debates I had with him over changes to regulations on medical testing.

The additional point I want to make about disinformation and misinformation—this applies in particular to Amendment 222 about the independence of the advisory committee on disinformation and misinformation—is that we are now seeing in our medical system a huge rise in the number of private actors. These are companies seeking to encourage consumers or patients to take tests outside the NHS system and to get involved in a whole set of private provision. We are seeing a huge amount of advertising of foreign medical provision, given the pressures that our NHS is under. In the UK we have had traditionally, and still have, rules that place severe restrictions on the direct advertising of medicines and medical devices to patients— unlike, for example, the United States, where it is very much open slather, with some disastrous and very visible impacts.

We need to think about the fact that the internet, for better or for worse, is now a part of our medical system. If people feel ill, the first place they go—before they call the NHS, visit their pharmacist or whatever—is very often the internet, through these providers. We need to think about this in the round and as part of the medical system. We need to think about how our entire medical ecology is working, and that is why I believe we need amendments like these.

[Lord Bethell (Con)]

The noble Baroness makes two incredibly important points. We are seeking to give people greater agency on their own health and the internet has been an enormous bonus in doing that, but of course that environment needs to be curated extremely well. We are also seeking to make use of health tech—non-traditional clinical interventions, some of which do not pierce the skin and therefore fall outside the normal conversation with GPs—and giving people the power to make decisions about the use of these new technologies for themselves. That is why curation of the health information environment is so important. Does the noble Baroness have any reflections on that.

[Baroness Bennett of Manor Castle (GP)]

I thank the noble Lord for his intervention. He has made me think of the fact that a particular area where this may be of grave concern is cosmetic procedures, which I think we debated during the passage of the Health and Care Act. These things are all interrelated, and it is important that we see them in an interrelated way as part of what is now the health system.

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[Baroness Merron (Lab)]

My Lords, I am most grateful to noble Lords across the Committee for their consideration and for their contributions in this important area. As the noble Baroness, Lady Kidron, and the noble Lord, Lord Clement-Jones, both said, this was an area of struggle for the Joint Committee. The debate today shows exactly why that is so, but it is a struggle worth having.

The noble Lord, Lord Bethell, talked about there being a gap in the Bill as it stands. The amendments include the introduction of risk assessments and transparency and, fundamentally, explaining things in a way that people can actually understand. These are all tried and tested methods and can serve only to improve the Bill.

I am grateful to the Minister for his response and consideration of the amendments. I want to take us back to the words of the noble Baroness, Lady Kidron. She explained it beautifully—partly in response to the comments from the noble Baroness, Lady Fox. This is about tackling a system of amplification of misinformation and disinformation that moves the most marginal of views into the mainstream. It deals with restricting the damage that, as I said earlier, can produce the most dire circumstances. Amplification is the consideration that these amendments seek to tackle.

I am grateful to the noble Lord, Lord Moylan, for his comments, as well as for his amendments. I am sure the noble Lord has reflected that some of the previous amendments he brought before the House somewhat put the proverbial cat among the Committee pigeons. On this occasion, I think the noble Lord has nicely aligned the cats and the pigeons. He has managed to rally us all—with the exception of the Minister—behind these amendments.

[Lord Bethell (Con)]

The noble Baroness is entirely right to emphasise amplification. May I put into the mix the very important role of the commercialisation of health misinformation? The more you look at the issue of health misinformation, the more you realise that its adverse element is to do with making money out of people’s fears. I agree with the noble Baroness, Lady Fox, that there should be a really healthy discussion about the efficacy, safety and value for money of modern medicines. That debate is worth having. The Minister rightly pointed out some recent health scandals that should have been chased down much more. The commercialisation of people’s fears bears further scrutiny and is currently a gap in the Bill.

[Baroness Merron (Lab)]

I certainly agree with the noble Lord, Lord Bethell, on that point. It is absolutely right to talk about the danger of commercialisation and how it is such a driver of misinformation and disinformation; I thank him for drawing that to the Committee’s attention. I also thank my noble friend Lady Healy for her remarks, and her reflection that these amendments are not a question of restricting free speech and debate; they are actually about supporting free speech and debate but in a safe and managed way.

Online Safety Bill

Lord Bethell Excerpts

Committee stage
Tuesday 23rd May 2023 Lords Chamber

[Lord Bethell (Con)]

My Lords, I speak to support my noble friend Lady Stowell and the noble Lord, Lord Stevenson. I would like to share two insights: one a piece of experience from my role as a junior Minister, and one as it bears down on the Bill.

As a junior Health Minister responsible for innovation and life sciences, it was my responsibility to look after 22 arm’s-length bodies, including the MHRA—an incredibly powerful regulator, possibly as powerful and important as Ofcom is, and certainly will be under this new Bill. As the junior Minister, you are under huge pressure from civil society, from the pharma industry and from noble Lords—some of whom I see in the Chamber today—who all have extremely strong opinions about the regulation of medicines. They also have, at times, very important insights about patients and what might be able to be done if certain innovative medicines could be accelerated. The great thing about being the Life Sciences Minister is that there is nothing you can do about it whatever. Your hands are tied. The MHRA obeys science and the regulation of science and not, I am pleased to say, Ministers, because Ministers are not good people to judge the efficacy and safety of medicines.

My advice to the Minister is to embrace the Bethell principle: that it is a huge relief not to be able to interfere in the day-to-day operations of your regulator. I remember speaking at a G7 meeting of Health Ministers to one of my compadres, who expressed huge envy for the British system because he had demonstrators and political donors on his back night and day, trying to get him to fix the regulations one way or the other. That is my point about the day-to-day management and implementation of policy.

When it comes to the objectives of the regulator, the Bill maybe leaves scope for some improvement. I thought my noble friend put it extremely well: it is where Parliament needs to have a voice. We have seen that on the subject of age verification for porn—a subject I feel very strongly about—where, at the moment, Parliament is leaving it to the regulator to consult industry, users of the internet and wider civic society to determine what the thresholds for age verification should be. That is a mistake; it is not the right way round to do things. It is where Parliament should have a voice, because these are mandatory population-wide impositions. We are imposing them on the population, and that is best done by Parliament, not the regulator. It needs the heft of Parliament when it comes to imposing and enforcing those regulations. If you do not have that parliamentary heft, the regulator may be on a granite island but it would be a very lonely island without the support it needs when taking on extremely powerful vested interests. That is why Parliament needs a reach into the system when it comes to objective setting.

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Bethell, who is clearly passionate about this aspect. As the noble Baroness, Lady Harding, said, this is one of the most important groups of amendments that we have to debate on the Bill, even though we are on day eight of Committee. As she said, it is about the right assignment of responsibilities, so it is fundamental to the way that the Bill will operate.

My noble friend Lord Allan brilliantly summed up many of the arguments, and he has graphically described the problem of ministerial overreach, as did the noble Baroness, Lady Harding. We on these Benches strongly support the amendments put forward by the noble Lord, Lord Stevenson, and those put forward by the noble Baroness, Lady Stowell. Obviously, there is some difference of emphasis. They each follow the trail of the different committees of which their proposers were members, which is entirely understandable. I recall that the noble Lord, Lord Gilbert, was the hinge between the two committees—and brilliantly he did that. I very much hope that, when we come back at the next stage, if the Minister has not moved very far, we will find a way to combine those two strands. I think they are extremely close—many noble Lords have set out where we are on accountability and oversight.

Strangely, we are not trying to get out of the frying pan of the Secretary of State being overbearing and move to where we have no parliamentary oversight. Both the noble Baroness, Lady Stowell, and the noble Lord, Lord Stevenson, are clearly in favour of greater oversight of Ofcom. The question is whether it is oversight of the codes and regulation or of Ofcom itself. I think we can find a way to combine those two strands. In that respect, I entirely agree with the noble Baroness, Lady Fox: it is all about making sure that we have the right kind of oversight.

I add my thanks to Carnegie UK. The noble Lord, Lord Stevenson, and the noble Baroness, Lady Stowell, set out the arguments, and we have the benefit of the noble Baroness’s letter to the Secretary of State of 30 January, which she mentioned in her speech. They have set out very clearly where speakers in this debate unanimously want to go.

The Government have suggested some compromise on Clause 39. As the noble Lord, Lord Stevenson said, we have not seen any wording for that, but I think it is highly unlikely that that, by itself, will satisfy the House when we come to Report.

There are many amendments here which deal with the Secretary of State’s powers, but I believe that the key ones are the product of both committees, which is about the Joint Committee. If noble Lords read the Government’s response to our Joint Committee on the draft Bill, they will see that the arguments given by the Government are extremely weak. I think it was the noble Baroness, Lady Stowell, who used the phrase “democratic deficit”. That is exactly what we are not seeking: we are trying to open this out and make sure we have better oversight and accountability. That is the goal of the amendments today. We have heard from the noble Viscount, Lord Colville, about the power of lobbying by companies. Equally, we have heard about how the Secretary of State can be overbearing. That is the risk we are trying to avoid. I very much hope that the Minister sees his way to taking on board at least some of whichever set of amendments he prefers.

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Amendment 184, also in my name, which seeks to establish the age of porn performers, will be spoken to by others at greater length, but I take the opportunity to tell your Lordships’ House that this is already the case in the United States and it works very well. I suggest we follow suit. Finally, this group should be seen as a companion piece to the harms schedule put forward by the same group of noble Lords, and which has the full support of all those groups and people I mentioned at the outset. The scale and range of expertise that has gone into this package of amendments is astonishing and between them, they would go a very long way to ensure that companies do not profit from purveying harms to children. I beg to move.

[Lord Bethell (Con)]

My Lords, it is a tremendous honour to speak after the noble Baroness, Lady Kidron. I think it fair to say that we would just not be here today if not for the advocacy she has performed on this issue and on the parallel issue of harms, over a great many years. I say to the Minister and to any in the Chamber who are thinking about being in the regulatory space in the years to come that they are going to have the noble Baroness on their back on these issues and it is very well worth listening to her words.

I echo the thanks and tributes the noble Baroness, Lady Kidron, has already paid, but I also want to single out the Minister and thank him for the leadership he has shown on these issues. I know he is very passionate about transforming our relationship in the digital world and the role the Bill can play, and we all recognise his commitment to making sure that the Bill gets over the line. I also thank those from another place who have passed us the Bill and are now closely watching our proceedings in this Chamber. We know that the Bill will be going back there and it is worth bearing in mind that these provisions have a lot of scrutiny and interest from Members of Parliament.

I am extremely concerned that for all the Bill’s strengths—and it has a great many—the measures on age verification are ill-defined and require tightening up in five particular ways. As the noble Baroness, Lady Kidron, alluded to, I shall talk a little bit about the rationale for the amendments in my name and those of the noble Lord, Lord Stevenson, the right reverend Prelate the Bishop of Oxford and the noble Baroness, Lady Kidron, and also speak in support of amendments in the same group from the noble Baronesses, Lady Ritchie and Lady Benjamin, and the noble Lord, Lord Allan.

To summarise, I am concerned about a mindset that is in awe of and deeply concerned about a colossal tsunami of legal judicial reviews coming our way as a result of measures to put pornography behind age verification, and that somehow the route out of that is to go into the battlefield with a very loose set of arrangements defined in the Bill and to perform regulation by consultation. Consultations are invaluable when it comes to implementation but are not appropriate for setting objectives. I fear that too often in the Bill at the moment, it is the objectives that are going out to the public, to vested interests and to the industry to consult on, and that is why the amendment seeks to put some of those objectives in the Bill. We want to give a clear definition for age verification, to put in a clear timetable and to ensure that those consultations, which will be contested, can be clear and deliver clear value.

I want to talk about our effective age-assurance schedule; the introduction of a threshold of “beyond reasonable doubt”; the introduction of independent auditing of the performance of age-verification measures; and our wish to erase proportionality provisions for websites that carry pornographic content, to introduce a clear timetable and to protect underage performers. At present, the Bill gives the example of age verification as just one possible measure for protecting children from accessing pornography. However, nowhere in the Bill is a clear definition or standard set out that age verification should meet. The amendments seek to address that.

At the moment the Bill defines age assurance as

“measures designed to estimate or verify the age or age-range of users of a service”.

That is just far too vague. There is no output-based performance standard. It leaves regulated services free to apply age-verification systems that at present have no clear oversight or quality control. We already know that some major platforms have a public position whereby apparently, they welcome child safety measures, but we also know that a great many pornography operators will resist implementing age verification to gain a competitive advantage or because they believe it will be detrimental to their business model. Leaving this wide-open gap for them to negotiate the operational efficiency of their age-verification measures is a big mistake.

That is why we have tabled Amendment 161, which would introduce an effective age-assurance schedule. That is an essential building block for the other amendments in this group, including the important Amendment 142. The effective age-assurance schedule would set out in the Bill the requirement for age checking about pornographic content to be of the absolute strongest kind. The amendment gives an indication of where the benchmark should be:

“‘age verification’ … beyond reasonable doubt”.

The amendment also sets out the underlying principles of age-verification regimes: that they must be independently audited, effective and privacy-preserving. The amendment has with it a commencement date to ensure that other provisions for age-checking porn can happen as quickly as possible after Royal Assent of the Bill.

We all agree that verifying age should be based not on any particular technology but on an outcome threshold. That is why we have pushed so hard for the “beyond reasonable doubt” threshold. It is an effort to set a clear and high bar for access to pornography. If that does not happen, I fear that, under the cover of proportionality, Ofcom will accept that Part 3 services, the regular websites, will need only to apply estimation techniques rather than demanding an increased level of assurance to ensure that minors cannot access pornography wherever it is found.

We have had feedback from the Bill team that the phrase “beyond reasonable doubt” is more usually found in criminal proceedings than civil legislation. I am very open to a discussion about whether there is a better or alternative phrase. If the Minister would like to address that point from the Dispatch Box, that would be very welcome.

On independent auditing, a number of noble Lords in this Committee have noted their concerns about internet companies marking their own homework. My noble friend Lady Wyld mentioned that and made a comparison with her own daughter’s homework provisions on an earlier day in Committee.

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[Lord Parkinson of Whitley Bay (Con)]

I am very happy to, and the noble Lord is right that we must be focused on the outcomes here. I am very sympathetic to the desire to make sure that providers are held to the highest standards, to keep children protected from harmful content online.

[Lord Bethell (Con)]

I know the Minister said that outcomes are detailed in the Bill already; I wonder whether he could just write to us and describe where in the Bill those outcomes are outlined.

[Lord Parkinson of Whitley Bay (Con)]

I shall happily do that, and will happily continue discussions with my noble friend and others on this point and on the appropriate alternative to the language we have discussed.

On the matter of Ofcom independently auditing age- assurance technologies, which my noble friend also raised, the regulator already has the power to require a company to undertake and pay for a report from a skilled person about a regulated service. This will assist Ofcom in identifying and assessing non-compliance, and will develop its understanding of the risk of failure to comply. We believe that this is therefore already provided for.

I reassure noble Lords that the existing definition of pornographic content in the Bill already captures the same content that Amendment 183ZA, in the name of the noble Baroness, Lady Ritchie of Downpatrick, intends to capture. The definition in the Bill shares the key element of the approach Ofcom is taking for pornography on UK-established video-sharing platforms. This means that the industry will be familiar with this definition and that Ofcom will have experience in regulating content which meets it.

The definition is also aligned with that used in existing legislation. I take on board the point she made about her trawl of the statute book for it, but the definition is aligned elsewhere in statute, such as in the Coroners and Justice Act 2009. This means that, in interpreting the existing definition in the Bill, the courts may be able to draw on precedent from the criminal context, giving greater certainty about its meaning. The definition of pornography in Part 5 is also consistent with the British Board of Film Classification’s guidelines for the definition of sex works, which is

“works whose primary purpose is sexual arousal or stimulation”

and the BBFC’s definition of R18. We therefore think it is not necessary to refer to BBFC standards in this legislation. Including the definition in the Bill also retains Parliament’s control of the definition, and therefore also which content is subject to the duties in Part 5. That is why we believe that the definition as outlined in the Bill is more straightforward for both service providers and Ofcom to apply.

I turn to Amendments 184 and 185. The Government share the concerns raised in today’s debate about the wider regulation of online pornography. It is important to be clear that extreme pornography, so-called revenge pornography and child sexual exploitation and abuse are already illegal and are listed as priority offences in the Bill. This means that under the illegal content duties, Part 3 providers, which will include some of the most popular commercial pornography services, must take proactive, preventive measures to limit people’s exposure to this criminal content and behaviour.

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In relation to Amendment 184, as intimate image abuse will already be illegal in criminal law, it is unnecessary to include a specific duty for Part 5 providers to prohibit this content. Any publisher that shares such images on its site would risk breaking the law and could face a prison sentence. The Bill is also not the right mechanism to regulate content produced or published by the adult industry with regard to the consent of performers appearing in pornographic content. Copyright and contract law already gives performers based in the UK the right to authorise the making of a recording of their performance. Any works recorded and made available to the public without the performer’s consent would constitute an infringement of their rights. As a private right, it is for the performer to enforce this, not a broader regulatory regime.

[Lord Bethell (Con)]

Does my noble friend the Minister recognise that those laws have been in place for the 30 years of the internet but have not successfully been used to protect the rights of those who find their images wrongly used, particularly those children who have found their images wrongly used in pornographic sites? Does he have any reflections on how that performance could be improved?

[Lord Parkinson of Whitley Bay (Con)]

I would want to take advice and see some statistics, but I am happy to do that and to respond to my noble friend’s point. I was about to say that my noble friend Lady Jenkin of Kennington asked a number of questions, but she is not here for me to answer them.

I turn to Amendment 232 tabled by the noble Lord, Lord Allan of Hallam. Because of the rapid development of age-assurance technologies, it is right that they should be carefully assessed to ensure that they are used effectively to achieve the outcomes required. I am therefore sympathetic to the spirit of his amendment, but must say that Ofcom will undertake ongoing research into the effectiveness of age-assurance technologies for its various codes and guidance, which will be published. Moreover, when preparing or updating the codes of practice, including those that refer to age-assurance technologies, Ofcom is required by the Bill to consult a broad range of people and organisations. Parliament will also have the opportunity to scrutinise the codes before they come into effect, including any recommendations regarding age assurance. We do not think, therefore, that a requirement for Ofcom to produce a separate report into age-assurance technologies is a necessary extra burden to impose on the regulator.

In relation to this and all the amendments in this group, as I say, I am happy to carry on the discussions that we have been having with a number of noble Lords, recognising that they speak for a large number of people in your Lordships’ House and beyond. I reiterate my thanks, and the Government’s thanks, to them for the way in which they have been going about that. With that, I encourage them not to press their amendments.

Online Safety Bill

Lord Bethell Excerpts

Committee stage
Thursday 22nd June 2023 Lords Chamber

Moved by

[Lord Bethell]

217: After Clause 118, insert the following new Clause—
“Notice by OFCOM to payment-services providers and ancillary services
(1) Where OFCOM have issued a provisional notice of contravention to a regulated service, which specifies the person has failed, or is failing, to comply with a duty or requirement in section 72 (duties about regulated provider pornographic content), it must give notice of that fact to any payment-services provider or ancillary service.(2) A notice under subsection (1) must—(a) identify the regulated service in such manner as OFCOM considers appropriate,(b) state whether the provisional notice of contravention relates to a duty under subsection (2) or (3) of section 72, or duties under both,(c) give OFCOM’s reasons for their opinion that the regulated service has failed, or is failing, to comply with it, and(d) provide such further particulars as OFCOM consider appropriate.(3) When OFCOM give notice under this section, OFCOM must inform the regulated service, by notice, that they have done so.(4) In this section—“ancillary service” has the same meaning as in section 131(11);“payment-services provider” means a person who appears to OFCOM to provide services, in the course of a business, which enable funds to be transferred in connection with the payment by any person for access to pornographic content made available on the internet by the regulated service;“pornographic content” has the meaning given by section 70(2);“provisional notice of contravention” has the same meaning as in section 118(1).”Member’s explanatory statement
This new Clause requires OFCOM to notify payment-service providers and ancillary services of a regulated service which is found to have breached duties relating to pornographic content.

[Lord Bethell (Con)]

My Lords, I will speak to Amendment 217 in my name. I express my deep gratitude to the noble Baronesses, Lady Benjamin and Lady Ritchie of Downpatrick, and the noble Lord, Lord Curry of Kirkharle, for adding their names in support. I will also address other amendments in this group that bring about business-disruption measures that enforce compliance with the important measures on pornography and harm that we have scrutinised already and will debate—briefly, I expect—at the end of today.

Amendment 217 is modest, but I believe it could make a big difference. It seeks to use the commercial interests of the pornography sites to change their behaviours by ensuring that their important supply chains are informed of breaches in regulations when they have happened. We know that this works because we have seen it work already. It has been widely reported that, at the start of December 2020, Pornhub, the famous porn site, said in its search bar that it was hosting 13.5 million clips. Then, on 14 December, that figure was dramatically reduced overnight to 5 million. What had happened was that Pornhub had removed two-thirds of the videos because of a decision by its payment companies, Visa and Mastercard, on 10 December, that they would withdraw payment services from Pornhub’s parent company, MindGeek.

That very important decision followed high-profile press reports, including in the New York Times, that Pornhub hosted vile videos of child abuse, rape and revenge pornography, and videos of people who had not consented to being recorded. These were illegal recordings—Mastercard said that its own investigation confirmed that the site was hosting illegal content. So, quite simply, the scrutiny of the nature of much of Pornhub’s content became too much for those payment companies. To protect themselves and to avoid being tarred by association, Visa and Mastercard had to act, which in turn meant that Pornhub had to act. This is the commercial reality of how the internet will be policed, whether we like it or not. It may well be that commercial interests can drive changes in behaviour much more quickly than blunt regulatory action. At the end of the day, I am interested just in measures that protect children, however they work—and this amendment facilitates effective action.

Payment and ancillary service providers can act in ways that Governments cannot easily do. The Bill could not require such actions as its duties extend only to the platforms themselves and the regulator, not ancillary services essential to the business model; but it can facilitate such interventions by making breaches of regulation transparent to the world. To enable this, the amendment would require Ofcom to notify financial and ancillary services of any breaches of regulations—no ifs or buts, no exemptions and no hiding the bad results. This notification is part and parcel of the process of issuing a provisional notice of contravention in any case, much like when Ofcom gives a notice under Section 110(1). The regulations say that

“OFCOM must carry out a review of the provider’s compliance with the notice”.

This discretion is at the point of choosing to give the notice. All that the process then entails is directed.

There is a significant limitation to this version of the amendment: it applies only to pornography providers covered by Part 5. That is deliberate. Of course, I would like to see it apply to all services with any pornographic content, which I hope will be included in changes that we will see in primary priority content. I will take a moment to flag to the Minister that amendments to this amendment may be needed if there are perhaps—I speak hopefully here—government amendments to the Bill that tweak the Part 3 and Part 5 distinctions before Report. Amendment 217 places no duties on providers of payment or ancillary services themselves; it simply gives them a right to be informed. It is about transparency and awareness, which are fundamental tenets of the Bill. For that reason, I very much hope that the Minister will commit to embracing this simple and proportionate measure.

This transparency measure becomes more pertinent and relevant when we look at other measures in this group, particularly those that introduce service-restriction measures. As other noble Lords will explain in more detail, I hope, these will allow Ofcom to require the supply chain of companies that support the internet industry—they are often reputable players that can be reached by our UK courts—to cut off essential support services to those who make transgressions. These might include services like hosting and search and, as I mentioned, payment companies like Mastercard and Visa. Without revenue from UK customers, there is little point in any service trying to find ways around access blocks.

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[Lord Parkinson of Whitley Bay (Con)]

I thank the noble Lord.

The term “blocking” is used to describe measures that will significantly impede or restrict access to non-compliant services—for example, internet service providers blocking websites or app stores blocking certain applications. These measures will be used only in exceptional circumstances, where the service has committed serious failures in meeting its duties and where no other action would reasonably prevent online harm to users in the UK.

My noble friend Lord Bethell’s Amendments 218F and 218L seek to ensure that Ofcom can request that an interim service or access restriction order endures for a period of six months in cases where a service hosts pornographic content. I reassure him that the court will already be able to make an order which can last up to six months. Indeed, the court’s interim order can have effect until either the date on which the court makes a service or access restriction order, or an expiry date specified by the court in the order. It is important that sanctions be determined on a case-by-case basis, which is why no limitations are set for these measures in the Bill.

As my noble friend knows, in the Bill there are clear duties on providers to ensure that children are not able to access pornography, which Ofcom will have a robust set of powers to enforce. It is important, however, that Ofcom’s powers and its approach to enforcement apply equally and consistently across the range of harms in scope of the Bill, rather than singling out one form of content in particular.

I hope that that is useful to noble Lords, along with the commitment to write on the further points which were raised. With that, I urge my noble friend to withdraw his amendment.

[Lord Bethell (Con)]

My Lords, to be honest, this debate has been an incredible relief to me. Here we have been taking a step away from some of the high-level conversations we had about what we mean by the internet and safety, looking at the far horizon, and instead looking at the moment when the Bill has real traction to try to change behaviours and improve the environment of the internet. I am extremely grateful to the Minister for his fulsome reply on a number of the issues.

The reason why it is so important is the two big areas where enforcement and compliance are going to be really tricky. First, there is Ofcom’s new relationship with the really big behemoths of the internet. It has a long tradition of partnership with big companies such as ITV, the radio sector—with the licensed authorities. However, of course it has licences, and it can pull them. I have worked for some of those companies, and it is quite a thing to go to see your regulator when you know that it can pull your licence. Obviously, that is within legal reason, but at the end of the day it owns your licence, and that is different to having a conversation where it does not.

The second class is the Wild West: the people living in open breach of regular societal norms who care not for the intentions of either the regulator, the Government or even mainstream society. Bringing those people back into reasonable behaviour will be a hell of a thing. My noble friend Lord Grade spoke, reasonably but with a degree of trepidation, about the challenge faced by Ofcom there. I am extremely grateful to the Minister for addressing those points.

Ofcom will step up to having a place next to the FCA and the MHRA. The noble Lord, Lord Curry, spoke about some of the qualities needed of one of the big three regulators. Having had some ministerial oversight of the MHRA, I can tell your Lordships that it has absolutely no hesitation about tackling big pharmaceutical companies and is very quick, decisive and clear. It wields a big stick—or, to use the phrase of the noble Baroness, Lady Merron, big teeth—in order to conduct that. That is why I ask the Minister just to keep in mind some of the recommendations embedded in these amendments.

The noble Baroness, Lady Kidron, mentioned illegal content, and I appreciate the candour of the Minister’s reply. However, business disruption measures offer an opportunity to address the challenge of illegal content, which is something that I know the Secretary of State has spoken about very interestingly, in terms of perhaps commissioning some kind of review. If such a thing were to happen, I ask that business disruption measures and some way of employing them might be brought into that.

We should look again at enforcement and compliance. I appreciate the Minister saying that it is important to let the regulator make some of these decisions, but the noble Lord, Lord Allan, was right: the regulator needs to know what the Government’s intentions are. I feel that we have opened the book on this, but there is still a lot more to be said about where the Government see the impact of regulation and compliance ending up. In all the battles in other jurisdictions—France, Germany, the EU, Canada, Louisiana and Utah—it all comes down to enforcement and compliance. We need to know more of what the Government hope to achieve in that area. With that, I beg leave to withdraw my amendment.

Amendment 217 withdrawn.

Online Safety Bill

Lord Bethell Excerpts

Committee stage
Thursday 22nd June 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, Amendments 233 and 234 from the noble Lord, Lord Knight of Weymouth, were well motivated, so I will be brief. I just have a couple of queries.

First, we need to consider what the criteria are for who is considered worthy of the privileged status of receiving Ofcom approval as a researcher. We are discussing researchers as though they are totally reliable and trustworthy. We might even think that if they are academic researchers, they are bound to be. However, there was an interesting example earlier this week of confirmation bias leading to mistakes when King’s College had to issue a correction to its survey data that was used in the BBC’s “Mariana in Conspiracyland”. King’s College admitted that it had wildly overestimated the numbers of those reading conspiracy newspaper, The Light, and wildly overestimated the numbers of those attending what it dubbed conspiracy demonstrations. By the way, BBC Verify has so far failed to verify the mistake it repeated. I give this example not as a glib point but because we cannot just say that because researchers are accredited elsewhere they should just be allowed in. I also think that the requirement to give the researchers

“all such assistance as they may reasonably require to carry out their research”

sounds like a potentially very time-consuming and expensive effort.

The noble Lord, Lord Allan of Hallam, raised points around “can’t” or “won’t”, and whether this means researchers “must” or “should”, and who decides whether it is ethical that they “should” in all instances. There are ethical questions here that have been raised. Questions of privacy are not trivial. Studying individuals as specimens of “badthink” or “wrongthink” might appear in this Committee to be in the public interest but without the consent of people it can be quite damaging. We have to decide which questions fulfil the public interest so sufficiently that consent could be overridden in that way.

I do not think this is a slam-dunk, though it looks like a sensible point. I do not doubt that all of us want more research, and good research, and data we can use in arguments, whatever side we are on, but it does not mean we should just nod something through without at least pausing.

[Lord Bethell (Con)]

My Lords, I declare an interest as a trustee of the International Centre for the Study of Radicalisation at the War Studies department of King’s College London. That is somewhere that conducts research using data of the kind addressed in this group, so I have a particular interest in it.

We know from the kind of debates that the noble Lord, Lord Knight, referred to that it is widely accepted that independent researchers benefit hugely from access to relevant information from service providers to research online safety matters. That is why my Amendment 234, supported by the noble Lords, Lord Clement-Jones and Lord Knight, aims to introduce an unavoidable mandatory duty for regulated platforms to give access to that data to approved researchers.

As the noble Lord, Lord Knight, said, there are three ways in which this would be done. First, the timeframe for Ofcom’s report would be accelerated; secondly, proposed new Clause 147 would allow Ofcom to appoint the researchers; and, thirdly, proposed new Clause 148 would require Ofcom to write a code of practice on data access, setting up the fundamental principles for data access—a code which, by the way, should answer some of the concerns quite reasonably voiced by the noble Baroness, Lady Fox.

The internet is absolutely the most influential environment in our society today, but it is a complete black box, and we have practically no idea what is going on in some of the most important parts of it. That has a terrible impact on our ability to devise sensible policies and mitigate harm. Instead, we have a situation where the internet companies decide who accesses data, how much of it and for what purposes.

In answer to his point, I can tell the noble Lord, Lord Allan, who they give the data to—they give it to advertisers. I do not know if anyone has bought advertising on the internet, but it is quite a chilling experience. You can find out a hell of a lot about quite small groups of people if you are prepared to pay for the privilege of trying to reach them with one of your adverts: you can find out what they are doing in their bedrooms, what their mode of transport is to get to work, how old they are, how many children they have and so on. There is almost no limit to what you can find out about people if you are an advertiser and you are prepared to pay.

In fact, only the companies themselves can see the full picture of what goes on on the internet. That puts society and government at a massive disadvantage and makes policy-making virtually impossible. Noble Lords should be in no doubt that these companies deliberately withhold valuable information to protect their commercial interests. They obfuscate and confuse policymakers, and they protect their reputations from criticism about the harms they cause by withholding data. One notable outcome of that strategy is that it has taken years for us to be here today debating the Online Safety Bill, precisely because policy-making around the internet has been so difficult and challenging.

A few years ago, we were making some progress on this issue. I used to work with the Institute for Strategic Dialogue using CrowdTangle, a Facebook product. It made a big impact. We were working on a project on extremism, and having access to CrowdTangle revolutionised our understanding of how the networks of extremists that were emerging in British politics were coming together. However, since then, platforms have gone backwards a long way and narrowed their data-sharing. The noble Lord, Lord Knight, mentioned that CrowdTangle has essentially been closed down, and Twitter has basically stopped providing its free API for researchers—it charges for some access but even that is quite heavily restricted. These retrograde steps have severely hampered our ability to gather the most basic data from otherwise respectable and generally law-abiding companies. It has left us totally blind to what is happening on the rest of the internet—the bit beyond the nice bit; the Wild West bit.

Civil society plays a critical role in identifying harmful content and bad behaviour. Organisations such as the NSPCC, the CCDH, the ISD—which I mentioned—the Antisemitism Policy Trust and King’s College London, with which I have a connection, prove that their work can make a really big difference.

It is not as though other parts of our economy or society have the same approach. In fact, in most parts of our world there is a mixture of public, regulator and expert access to what is going on. Retailers, for instance, publish what is sold in our shops. Mobile phones, hospitals, banks, financial markets, the broadcast media—they all give access, both to the public and to their regulators, to a huge amount of data about what is going on. Once again, internet companies are claiming exceptional treatment—that has been a theme of debates on the Online Safety Bill—as if what happens online should, for some reason, be different from what happens in the rest of the world. That attitude is damaging the interests of our country, and it needs to be reversed. Does anyone think that the FSA, the Bank of England or the MHRA would accept this state of affairs in their regulated market? They absolutely would not.

Greater access to and availability of data and information about systems and processes would hugely improve our understanding of the online environment and thereby protect the innovation, progress and prosperity of the sector. We should not have to wait for Ofcom to be able to identify new issues and then appoint experts to look at them closely; there should be a broader effort to be in touch with what is going on with the internet. It is the nature of regulation that Ofcom will heavily rely on researchers and civil society to help enforce the Online Safety Bill, but this can be achieved only if researchers have sufficient access to data.

As the noble Lord, Lord Allan, pointed out, legislators elsewhere are making progress. The EU’s Digital Services Act gives a broad range of researchers access to data, including civil society and non-profit organisations dedicated to public interest research. The DSA sets out a framework for vetting and access procedures in detail, as the noble Baroness, Lady Fox, rightly pointed out, creating an explicit role for new independent supervisory authorities and digital services co-ordinators to manage that process.

Under Clause 146, Ofcom must produce a report exploring such access within two years of that section of the Bill coming into effect. That is too long. There is no obligation on the part of the regulator or service providers to take this further. No arguments have been put forward for this extended timeframe or relative uncertainty. In contrast, the arguments to speed up the process are extremely persuasive, and I invite my noble friend the Minister to address those.

Online Safety Bill

Lord Bethell Excerpts

Report stage
Monday 10th July 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)]

We began this group on the previous day on Report, and I concluded my remarks, so it is now for other noble Lords to contribute on the amendments that I spoke to on Thursday.

[Lord Bethell (Con)]

My Lords, I rise emphatically to welcome the government amendments in this group. They are a thoughtful and fulsome answer to the serious concerns expressed from the four corners of the Chamber by a great many noble Lords at Second Reading and in Committee about the treatment of age verification for pornography and online harms. For this, I express my profound thanks to my noble friend the Minister, the Secretary of State, the Bill team, the Ofcom officials and all those who have worked so hard to refine this important Bill. This is a moment when the legislative team has clearly listened and done everything it possibly can to close the gap. It is very much the House of Lords at its best.

It is worth mentioning the exceptionally broad alliance of noble Lords who have worked so hard on this issue, particularly my compadres, my noble friend Lady Harding, the noble Baroness, Lady Kidron, and the right reverend Prelate the Bishop of Oxford, who all signed many of the draft amendments. There are the Front-Benchers, including the noble Lords, Lord Stevenson, Lord Knight, Lord Clement-Jones and Lord Allan of Hallam, and the noble Baroness, Lady Merron. There are the Back-Benchers behind me, including my noble friends Lady Jenkin and Lord Farmer, the noble Lords, Lord Morrow, Lord Browne and Lord Dodds, and the noble Baroness, Lady Foster. Of those in front of me, there are the noble Baronesses, Lady Benjamin and Lady Ritchie, and there is also a number too large for me to mention, from all across the House.

I very much welcome the sense of pragmatism and proportionality at the heart of the Online Safety Bill. I welcome the central use of risk assessment as a vital tool for policy implementation and the recognition that some harms are worse than others, that some children need more protection than others, that we are legislating for future technologies that we do not know much about and that we must engage industry to achieve effective implementation. As a veteran of the Communications Act 2003, I strongly support the need for enabling legislation that has agility and a broad amount of support to stand the test of time.

--- Later in debate ---

[Viscount Colville of Culross (CB)]

My Lords, it is a great pleasure to follow the veteran campaigner on this issue, the noble Baroness, Lady Benjamin. I, too, rise briefly to support Amendments 35 to 37A, 85 and 240 in the name of my noble friend Lady Kidron.

In Committee, I put my name to amendments that aimed to produce risk assessments on harms to future-proof the Bill. Sadly, they were thought unnecessary by the Government. Now the Minister has another chance to make sure that Ofcom will be able to assess and respond to potential harms from one of the fastest-changing sectors in the world in order to protect our children. I praise the Minister for having come so far but, if this Bill is to stand the test of time, we will have to be prepared for the ever-changing mechanisms that would deliver that content to children. Noble Lords have already told the House about the fast-changing algorithms and the potential of AI to create harms. Many tech companies do not even understand how their algorithms work; a risk assessment of their functions would ensure that they found out soon enough.

In the Communications and Digital Select Committee inquiry into regulating the internet, we recommended that, because the changes in digital delivery and technology were happening so fast, a specific body needed to be set up to horizon scan. In these amendments, we would build these technological changes into this Bill’s regulatory mechanism to safeguard our children in future. I hope that noble Lords will support the amendment.

[Lord Bethell (Con)]

My Lords, I also support the amendments from the noble Baroness, Lady Kidron. It is relatively easy to stand here and make the case for age verification for porn: it is such a black and white subject and it is disgusting pornography, so of course children should be protected from it. Making the case for the design of the attention economy is more subtle and complex—but it is incredibly important, because it is the attention economy that is driving our children to extreme behaviours.

I know this from my own personal life; I enjoy incredibly lovely online content about wild-water swimming, and I have been taken down a death spiral towards ice swimming and have become a compulsive swimmer in extreme temperatures, partly because of the addiction generated by online algorithms. This is a lovely and heart-warming anecdote to give noble Lords a sense of the impact of algorithms on my own imagination, but my children are prone to much more dangerous experiences. The plasticity of their brains is so much more subtle and malleable; they are, like other children, open to all sorts of addiction, depression, sleeplessness and danger from predators. That is the economy that we are looking at.

I point noble Lords to the intervention from the surgeon general in America, Admiral Vivek Murthy—an incredibly impressive individual whom I came across during the pandemic. His 25-page report on the impact of social media on the young of America is incredibly eye-opening reading. Some 95% of American children have come across social media, and one-third of them see it almost constantly, he says. He attributes to the impact of social media depression, anxiety, compulsive behaviours and sleeplessness, as well as what he calls the severe impact on the neurological development of a generation. He calls for a complete bar on all social media for the under-13s and says that his own children will never get anywhere near a mobile phone until they are 16. That is the state of the attention economy that the noble Baroness, Lady Kidron, talks about, and that is the state of the design of our online applications. It is not the content itself but the way in which it is presented to our children, and it traps their imagination in the kind of destructive content that can lead them into all kinds of harms.

Admiral Murthy calls on legislators to act today—and that was followed on the same day by a commitment from the White House to look into this and table legislation to address the kind of design features that the noble Baroness, Lady Kidron, is looking at. I think that we should listen to the surgeon general in America and step up to the challenge that he has given to American legislators. I am enormously grateful to my noble friend the Minister for the incredible amount of work that he has already done to try to bridge the gap in this matter, but there is a way to go. Like my noble friend Lady Harding, I hope very much indeed that he will be able to tell us that he has been able to find a way across the gap, or else I shall be supporting the noble Baroness, Lady Kidron, in her amendment.

[Baroness Morgan of Cotes (Con)]

I rise briefly to speak to this group of amendments. I want to pick up where my noble friend Lord Bethell has just finished. The Government have listened hugely on this Bill and, by and large, the Bill, and the way in which Ministers have engaged, is a model of how the public wants to see their Parliament acting: collaboratively and collegiately, listening to each other and with a clear sense of purpose that almost all of us want to see the Bill on the statute book as soon as possible. So I urge my noble friend the Minister to do so again. I know that there have been many conversations and I think that many of us will be listening with great care to what he is about to say.

There are two other points that I wanted to mention. The first is that safety by design was always going to be a critical feature of the Bill. I have been reminding myself of the discussions that I had as Culture Secretary. Surely and in general, we want to prevent our young people in particular encountering harms before they get there, rather than always having to think about the moderation of harmful content once it has been posted.

Secondly, I would be interested to hear what the Minister has to say about why the Government find it so difficult to accept these amendments. Has there been some pushback from those who are going to be regulated? That would suggest that, while they can cope with the regulation of content, there is still secrecy surrounding the algorithms, functionalities and behaviours. I speak as the parent of a teenager who, if he could, would sit there quite happily looking at YouTube. In fact, he may well be doing that now—he certainly will not be watching his mother speaking in this House. He may well be sitting there and looking at YouTube and the content that is served up automatically, time after time.

I wonder whether this is, as other noble Lords have said, an opportunity. If we are to do the Bill properly and to regulate the platforms—and we have decided we need to do that—we should do the job properly and not limit ourselves to content. I shall listen very carefully to what my noble friend says but, with regret, if there is a Division, I will have to support the indomitable noble Baroness, Lady Kidron, as I think she was called.

--- Later in debate ---

Moved by

[Lord Bethell]

39: Clause 11, at end insert—
“(3D) If the duty in subsection (3)(a) relates to pornographic content, the duty applies regardless of the size and capacity of a service.”Member’s explanatory statement
This amendment does not allow a service to determine age verification or age estimation is not needed because of their size and capacity.

[Lord Bethell (Con)]

My Lords, I commend the Minister for the great strides forward which have been made since Committee. There remains one concern which has necessitated a further amendment in my name, that refers to this group. In Committee, I and others probed whether pornographic content would be caught by the Bill. It is the opening words of Clause 11(3) which give rise to this concern, while amendments helpfully put forward by the Government—which I wholeheartedly support—bolster age-verification amendments. These amendments are still subject to qualification.

The Government’s amendments leave the beginning of Clause 11(3) unchanged. User-to-user services now have a duty to use age verification and age estimation, or both, to prevent children of any age from encountering primary priority content that is harmful to children. This duty is qualified by the words

“using proportionate systems and processes”.

It is that word “proportionate” that gives rise to concern, and which Amendment 39 seeks to address for pornographic content.

In a document produced by the Government in January 2021, the British Board of Film Classification said that there were literally millions of pornographic websites. This study did not include social media websites, some of which also host pornographic content—a point made by the Children’s Commissioner in her powerful recent report.

When announcing the new age-verification and age-estimation amendments on 30 June, the government press release said that

“pornography companies, social media platforms and other services”

will

“be explicitly required to use age verification or estimation measures to prevent children accessing pornography”.

My question to the Minister is this: will all websites and social media be covered by the Bill? With millions of sites on the internet, it is not unreasonable to think that some sites will argue that despite hosting pornographic content, they are not of a size or a capacity that necessitates them investing in age verification or estimation technology.

A further concern relates to large, particularly social media, providers. A proportionality clause may leave it open to them to claim that while they host pornographic content, the amount of pornography or the number of children accessing the platform simply does not warrant age verification as it is statistically a small part of what they provide. I think most people expect that the Bill will ensure that all pornographic content, wherever it is found, is subject to age verification or estimation. In fact, I congratulated my noble friend the Minister on that point earlier this afternoon.

In Committee, many noble Lords across the House argued that Parts 3 and 5 should be subject to the same duties. I am pleased to say that this is the last anomaly regarding pornographic content in the Bill. The Government have gone a very long way to ensure that the duties across Parts 3 and 5 are identical, which is very welcome. However, websites which fall under the scope of Part 5 do not have any exceptions. There is no proportionality test: they must have age verification or estimation to meet that duty. All I am seeking to do with Amendment 39 is to ensure parity of regulation across the Bill.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

My Lords, short debates can be helpful and useful. I am grateful to noble Lords who have spoken on this group.

I will start with Amendment 39, tabled by my noble friend Lord Bethell. Under the new duty at Clause 11(3)(a), providers which allow pornography or other forms of primary priority content under their terms of service will need to use highly effective age verification or age estimation to prevent children encountering it where they identify such content on their service, regardless of their size or capacity. While the size and capacity of providers is included as part of a consideration of proportionality, this does not mean that smaller providers or those with less capacity can evade the strengthened new duty to protect children from online pornography. In response to the questions raised by the noble Baronesses, Lady Ritchie of Downpatrick and Lady Kidron, and others, no matter how much pornographic content is on a service, where providers do not prohibit this content they would still need to meet the strengthened duty to use age verification or age estimation.

Proportionality remains relevant for the purposes of providers in scope of the new duty at Clause 11(3)(a) only in terms of the age-verification or age-estimation measures that they choose to use. A smaller provider with less capacity may choose to go for a less costly but still highly effective measure. For instance, a smaller provider with less capacity might seek a third-party solution, whereas a larger provider with greater capacity might develop their own solution. Any measures that providers use will need to meet the new high bar of being “highly effective”. If a provider does not comply with the new duties and fails to use measures which are highly effective at correctly determining whether or not a particular user is a child, Ofcom can take tough enforcement action.

The other amendments in this group seek to remove references to the size and capacity of providers in provisions relating to proportionality. The principle of proportionate, risk-based regulation is fundamental to the Bill’s regulatory framework, and we consider that the Bill as drafted already strikes the correct balance. The Bill ultimately will regulate a large number of services, ranging from some of the biggest companies in the world to smaller, voluntary organisations, as we discussed in our earlier debate on exemptions for public interest services.

The provisions regarding size and capacity recognise that what it is proportionate to require of companies of various sizes and business models will be different. Removing this provision would risk setting a lowest common denominator standard which does not create incentives for larger technology companies to do more to protect their users than smaller organisations. For example, it would not be proportionate for a large multinational company which employs thousands of content moderators and which invests in significant safety technologies to argue that it is required to take only the same steps to comply as a smaller provider which might have only a handful of employees and a few thousand UK users.

While the size and capacity of providers is included as part of a consideration of proportionality, let me be clear that this does not mean that smaller providers or those with less capacity do not need to meet the child safety duties and other duties in the Bill, such as the illegal content safety duties. These duties set out clear requirements for providers. If providers do not meet these duties, they will face enforcement action.

I hope that is reassuring to my noble friend Lord Bethell and to the other noble Lords with amendments in this group. I urge my noble friend to withdraw his amendment.

[Lord Bethell (Con)]

My Lords, I thank my noble friend the Minister for that reassurance. He put the points extremely well. I very much welcome his words from the Dispatch Box, which go a long way towards clarifying and reassuring.

This was a short and perfectly formed debate. I will not go on a tour d’horizon of everyone who has spoken but I will mention the noble Lord, Lord Allan of Hallam. He is entirely right that no one wants gratuitously to hound out businesses from the UK that contribute to the economy and to our life here. There are good regulatory principles that should be applied by all regulators. The five regulatory principles of accountability, transparency, targeting, consistency and proportionality are all in the Legislative and Regulatory Reform Act 2006. Ofcom will embrace them and abide by them. That kind of reassurance is important to businesses as they approach the new regulatory regime.

I take on board what my noble friend the Minister said in terms of the application of regulations regardless of size or capacity, and the application of these strengthened duties, such as “highly effective”, regardless of any economic or financial capacity. I feel enormously reassured by what he has said. I beg leave to withdraw my amendment.

Amendment 39 (to Amendment 38) withdrawn.

Online Safety Bill

Lord Bethell Excerpts

Report stage
Monday 17th July 2023 Lords Chamber

I would like this to be demystified, so the more Ofcom can ask the companies to demystify their algorithmic decisions and the more users can be empowered to know about it, the better for all of us. That is the positive bit of the amendments that I like.

[Lord Bethell (Con)]

My Lords, the business of the internet is data. Whether it is a retail business, a media business or any other kind of business, the internet is all about data. The chiefs of our internet companies know more about noble Lords than anyone else—more than any government agency, your doctor and almost anyone—because the number of data points that big internet companies have on people is absolutely enormous, and they use them to very great effect.

Some of those effects are entirely benign. I completely endorse what the noble Baroness, Lady Fox, said. As a champion of innovation and business, I totally recognise the good that is done by the world’s internet companies to make our lives richer, create jobs and improve the world, but some of what they do is not good. Either inadvertently or by being passive enablers of harm, internet companies have been responsible for huge societal harms. I do not want to go through the full list, but when I think about the mental health of our teenagers, the extremism in our politics, the availability of harmful information to terrorists and what have you, there is a long catalogue of harms to which internet companies have contributed. We would be naive if we did not recognise.

However, almost uniquely among commercial businesses, internet companies guard access to that data incredibly jealously. They will not let you peek in and share their insights. I know from my experience in the health field that we work very closely with the pharmaceutical industry—there is a whole programme of pharmacovigilance that any pharma company has to participate in in order to explain, measure and justify the good and disbenefits of its medicines. We have no similar programme to pharmacovigilance for the tech industry. Instead, we are completely blind. Policy makers, the police and citizens are flying blind when it comes to the data that is held on us on both an individual and a demographic basis. That is extremely unusual.

That is why I really welcome my noble friend’s amendments that give Ofcom what seems to me to be extremely proportionate and thoughtful powers in order to look into this data, because without it, we do not know what is going on in this incredibly important part of our lives.

The role that researchers, including academic, civil society and campaigning researchers, play in helping Ofcom, policymakers and politicians to arrive at sensible, thoughtful and proportionate policy is absolutely critical. I pay enormous tribute to them; I am grateful to those noble Lords who have also done so. I am extremely grateful to my noble friend the Minister for his amendments on this subject, Amendments 272B and 272C, which address the question of giving researchers better access to some of this data. They would reduce the timeline for the review on data from 24 months to 18 months, which would be extremely helpful, and would changing “may” to “must”, which represents an emphatic commitment to the outcome of this review.

However, issues remain around the question of granting access to data for researchers. What happens to the insights from the promised review once it is delivered? Where are the powers to deliver the review’s recommendations? That gap is not currently served by the government amendments, which is why I and the noble Lord, Lord Clement-Jones, have tabled Amendments 237ZA, 237DB, 262AA and 272AB. Their purpose is to put in the Bill reasonable, proportionate powers to bring access to data for researchers along the lines that the research review will recommend.

The feelings on this matter are extremely strong because we all recognise the value here. We are concerned that any delay may completely undermine this sector. As we debated in Committee, there is a substantial and valuable UK sector in this research area that is likely to move lock, stock and barrel to other countries where these kinds of powers may be in place; for instance, in EU or US legislation. The absence of these powers will, I think, leave Britain in the dark and competitively behind other countries, which is why I want to push the Minister hard on these amendments. I am grateful for his insight that this matter is something that the Government may look to in future Bills, but those Bills are far off. I would like to hear from him what more he could do to try to smooth the journey from this Bill and this review to any future legislation that comes through this House in order to ensure that this important gap is closed.

[Baroness Fraser of Craigmaddie (Con)]

My Lords, Amendments 270 and 272 are in my name; I thank the noble Lord, Lord Stevenson of Balmacara, for adding his name to them. They are the least controversial amendments in this group, I think. They are really simple. Amendment 270 would require Ofcom’s research about online interests and users’ experiences of regulated services under Clause 143 to be broken down by nation, while Amendment 272 relates to Clause 147 and would require Ofcom’s transparency reports also to be broken down in a nation-specific way.

These amendments follow on from our debates on devolution in Committee. Both seek to ensure that there is analysis of users’ online experiences in the different nations of the UK, which I continue to believe is essential to ensuring that the Bill works for the whole of the UK and is both future-proofed—a word we have all used lots—and able to adapt to different developments across each of the four nations. I have three reasons why I think these things are important. The first concerns the interplay between reserved and devolved matters. The second concerns the legal differences that already exist across the UK. The third concerns the role of Ofcom.

In his much-appreciated email to me last week, the Minister rightly highlighted that internet services are a reserved matter and I absolutely do not wish to impose different standards of regulation across the UK. Regarding priority offences, I completely support the Government’s stance that service providers must treat any content as priority illegal content where it amounts to a criminal offence anywhere in the UK regardless of where that act may have taken place or where the user is. However, my amendments are not about regulation; they are about research and transparency reporting, enabling us to understand the experience across the UK and to collect data—which we have just heard, so powerfully, will be more important as we continue.

I am afraid that leaving it to Ofcom’s discretion to understand the differences in the online experiences across the four nations over time is not quite good enough. Many of the matters we are dealing with in the online safety space—such as children, justice, police and education—are devolved. Government policy-making in devolved areas will increasingly rely on data about online behaviours, harms and outcomes. These days, I cannot imagine creating any kind of public policy without understanding the online dimension. There are areas where either the community experience and/or the policy approach is markedly different across the nations—take drug abuse, for example. No data means uninformed policy-making or flying blind, as my noble friend Lord Bethell has just said. But how easy will it be for the devolved nations to get this information if we do not specify it in the Bill?

In many of the debates, we have already heard of the legal differences across the four nations, and I am extremely grateful to the noble and learned Lord, Lord Hope of Craighead, who is not in his place, the noble Lord, Lord Stevenson of Balmacara, and the Minister for supporting my amendment last week when I could not be here. I am terribly sorry. I was sitting next to the noble Viscount, Lord Camrose, at the time. The amendment was to ensure that there is a legal definition of “freedom of expression” in the Bill that can be understood by devolved Administrations across the UK.

The more I look at this landscape, the more challenges arise. The creation of legislation around intimate abuse images is a good example. The original English legislation was focused on addressing the abusive sharing of intimate images after a relationship breakdown. It required the sharing to have been committed with the intent to cause harm, which has a very easy defence: “I did not mean to cause any harm”. The Scottish legislation, drafted slightly later, softened this to an intent to cause harm or being reckless as to whether harm was caused, which is a bit better because you do not need to prove intent. Now the English version is going to be updated in the Bill to create an offence simply by sharing, which is even better.

Other differences in legislation have been highlighted, such as on deepfakes and upskirting. On the first day of Report, the noble Baroness, Lady Kennedy of The Shaws, highlighted a difference in the way cyberflashing offences are understood in Northern Ireland. So the issue is nuanced, and the Government’s responses change as we learn about harmful behaviours in practice. Over time, we gradually see these offences refined as we learn more about how technology is used to abuse in practice. The question really is: what will such offences look like online in five years’ time? Will the user experience and government policy across the four nations be the same? I will not pretend to try to answer that, but to answer it we will need the data.

I am concerned that the unintended consequences of the Bill in the devolved Administrations have not been fully appreciated or explored. Therefore, I am proposing a belt and braces approach in the reporting regime. When we come to post-legislative scrutiny, with reports being laid before this Parliament and the devolved Administrations in Edinburgh, Cardiff and Belfast—if there is one—we will want to have the data to understand the online experiences of each nation. That is why my very little amendments are seeking to ensure that we capture this experience and that is why it is so important.

Online Safety Bill

Lord Bethell Excerpts

3rd reading
Wednesday 6th September 2023 Lords Chamber

[Lord Allan of Hallam (LD)]

My Lords, I will make a short contribution so that I do not disappoint the noble Lord, Lord Moylan; I will make a few direct and crunchy comments. First, I thank colleagues who participated in the debate for giving me a hearing, especially when I raised concerns about their proposals. It has been a constructive process, where we have been, as the Minister said, kicking the tyres, which is healthy in a legislature. It is better to do it now than to find faults when something has already become law.

I am in the unusual position of having worked on problems comparable to those we are now placing on Ofcom’s desk. I have enormous empathy for it and the hard work we are giving it. I do not think we should underestimate just how difficult this job is.

I want to thank the Minister for the additional clarification of how Ofcom will give orders to services that provide private communications. Following on from what the noble Baroness, Lady Stowell, said, I think this is a challenging area. We want Ofcom to give orders where this is easy—for example, to an unencrypted service hosting child sexual abuse material. The technology can be deployed today and is uncontroversial, so it is important that we do not forget that.

I heard the Minister say that we do not want Ofcom to move so fast that it breaks encryption. It should be moving but it should be careful. Those are the fears that have been expressed outside: on the day that this becomes law, Ofcom will issue orders to services providing encrypted communications that they will not be able to accept and therefore they will leave the UK. I think I heard from the Minister today that this is not what we want Ofcom to do. At the same time, as the noble Baroness, Lady Stowell said, we are not expecting Ofcom to ease off; any online service should be doing everything technically possible and feasible to deal with abhorrent material.

I humbly offer three pieces of advice to Ofcom as we pass the baton to it. This is based on having made a lot of mistakes in the past. If I had been given this advice, I might have done a better job in my previous incarnation. First, you cannot overconsult; Ofcom should engage with all interested parties, including those who have talked to us throughout the process of the Bill. It should engage with them until it is sick of engaging with them and then it should engage some more. In particular, Ofcom should try to bring together diverse groups, so I hope it gets into a room the kind of organisations that would be cheering on the noble Lord, Lord Moylan, as well as those that would be cheering on the noble Baroness, Lady Kidron. If Ofcom can bring them into the room, it has a chance of making some progress with its regulations.

Secondly, be transparent. The more information that Ofcom provides about what it is doing, the less space it will leave for people to make up things about what it is doing. I said this in the previous debate about the access request but it applies across the piece. We are starting to see some of this in the press. We are here saying that it is great that we now have a government regulator—independent but part of the UK state—overseeing online services. As soon as that happens, we will start to see the counterreaction of people being incredibly suspicious that part of the UK state is now overseeing their activity online. The best way to combat that is for Ofcom to be as transparent as possible.

Thirdly, explain the trade-offs you are making. This legislation necessarily involves trade-offs. I heard it again in the Minister’s opening remarks: we have indulged in a certain amount of cakeism. We love freedom of expression but we want the platforms to get rid of all the bad stuff. The rubber is going to hit the road once Ofcom has the powers and, in many cases, it will have to decide between one person’s freedom of expression and another’s harm. My advice is not to pretend that you can make both sides happy; you are going to disappoint someone. Be honest and frank about the trade-offs you have made. The legislation has lots of unresolved trade-offs in it because we are giving lots of conflicting instructions. As politicians, we can ride that out, but when Ofcom gets this and has to make real decisions, my advice would be to explain the trade-offs and be comfortable with the fact that some people will be unhappy. That is the only way it will manage to maintain confidence in the system. With that, I am pleased that the Bill has got to this stage and I have a huge amount of confidence in Ofcom to take this and make a success of it.

[Lord Bethell (Con)]

I rise briefly to raise the question of access to data by academics and research organisations. Before I do so, I want to express profound thanks to noble Lords who have worked so collaboratively to create a terrific Bill that will completely transform and hold to account those involved in the internet, and make it a safer place. That was our mission and we should be very proud of that. I cannot single out noble Peers, with the exception of the noble Baroness, Lady Kidron, with whom I worked collaboratively both on age assurance and on harms. It was a partnership I valued enormously and hope to take forward. Others from all four corners of the House contributed to the parts of the Bill that I was particularly interested in. As I look around, I see so many friends who stuck their necks out and spoke so movingly, for which I am enormously grateful.

The question of data access is one of the loose ends that did not quite make it into the Bill. I appreciate the efforts of my noble friend the Minister, the Secretary of State and the Bill team in this matter and their efforts to try and wangle it in; I accept that it did not quite make it. I would like to hear reassurance from my noble friend that this is something that the Government are prepared to look at in future legislation. If he could provide any detail on how and in which legislation it could be revisited, I would be enormously grateful.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I will be brief and restrict myself to responding to the questions which have been raised. I will hold to my rule of not trying to thank all noble Lords who have played their part in this scrutiny, because the list is indeed very long. I agree with what the noble Lord, Lord Clement-Jones, said about this being a Back-Bench-driven Bill, and there are many noble Lords from all corners of the House and the Back Benches who have played a significant part in it. I add my thanks to the noble Baroness, Lady Benjamin, not just for her kind words, but for her years of campaigning on this, and to my noble friend Lord Bethell who has worked with her—and others—closely on the issues which she holds dear.

I also thank my noble friend Lord Moylan who has often swum against the tide of debate, but very helpfully so, and on important matters. In answer to his question about Wikipedia, I do not have much to add to the words that I have said a few times now about the categorisation, but on his concerns about the parliamentary scrutiny for this I stress that it is the Secretary of State who will set the categorisation thresholds. She is, of course, a Member of Parliament, and accountable to it. Ofcom will designate services based on those thresholds, so the decision-making can be scrutinised in Parliament, even if not in the way he would have wished.

I agree that we should all be grateful to the noble Lord, Lord Allan of Hallam, because he addressed some of the questions raised by my noble friend Lady Stowell of Beeston. In brief, the provision is flexible for where the technological solutions do not currently exist, because Ofcom can require services to develop or source new solutions.

This close to the gracious Speech, I will not point to a particular piece of legislation in which we might revisit the issue of researchers’ access, as raised by my noble friend Lord Bethell, but I am happy to say that we will certainly look at that again, and I know that he will take the opportunity to raise it.

Noble Lords on the Front Benches opposite alluded to the discussions which are continuing—as I committed on Report to ensure that noble Lords are able to be part of discussions as the Bill heads to another place—on functionalities and on the amendment of my noble friend Lady Morgan on category 1 services. She is one of a cavalcade of former Secretaries of State who have been so helpful in scrutinising the Bill. It is for another place to debate them, but I am grateful to noble Lords who have given their time this week to have the discussions which I committed to have and will continue to have as the Bill heads there, so that we can follow those issues hopefully to a happy resolution.

I thank my noble friend Lady Harding of Winscombe for the concessions that she wrought on Report, and for the part that she has played in discussions. She has also given a great deal of time outside the Chamber.

We should all be very grateful to the noble Lord, Lord Grade of Yarmouth, who has sat quietly throughout most of our debates—understandably, in his capacity as chairman of Ofcom—but he has followed them closely and taken those points to the regulator. Dame Melanie Dawes and all the team there stand ready to implement this work and we should be grateful to the noble Lord, Lord Grade of Yarmouth, and to all those at Ofcom who are ready to put it into action.