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.

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[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.

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[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.