Online Safety Bill

Lord Clement-Jones Excerpts

2nd reading
Wednesday 1st February 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for his detailed introduction and his considerable engagement on the Bill to date. This has been a comprehensive, heartfelt and moving debate, with a great deal of cross-party agreement about how we must regulate social media going forward. With 66 speakers, however, I sadly will not be able to mention many significant contributors by name.

It has been a long and winding road to get to this point, as noble Lords have pointed out. As the Minister pointed out, along with a number of other noble Lords today, I sat on the Joint Committee which reported as far back as December 2021. I share the disappointment of many that we are not further along with the Bill. It is still a huge matter of regret that the Government chose not to implement Part 3 of the DEA in 2019. Not only, as mentioned by many, have we had a cavalcade of five Culture Secretaries, we have diverged a long way from the 2019 White Paper with its concept of the overarching duty of care. I share the regret that the Government have chosen to inflict last-minute radical surgery on the Bill to satisfy the, in my view, unjustified concerns of a very small number in their own party.

Ian Russell—I pay tribute to him, like other noble Lords—and the Samaritans are right that this is a major watering down of the Bill. Mr Russell showed us just this week how Molly had received thousands and thousands of posts, driven at her by the tech firms’ algorithms, which were harmful but would still be classed as legal. The noble Lord, Lord Russell, graphically described some of that material. As he said, if the regulator does not have powers around that content, there will be more tragedies like Molly’s.

The case for proper regulation of harms on social media was made eloquently to us in the Joint Committee by Ian and by witnesses such Edleen John of the FA and Frances Haugen, the Facebook whistleblower. The introduction to our report makes it clear that the key issue is the business model of the platforms, as described by the noble Lords, Lord Knight and Lord Mitchell, and the behaviour of their algorithms, which personalise and can amplify harmful content. A long line of reports by Select Committees and all-party groups have rightly concluded that regulation is absolutely necessary given the failure of the platforms even today to address these systemic issues. I am afraid I do not agree with the noble Baroness, Lady Bennett; being a digital native is absolutely no protection—if indeed there is such a thing as a digital native.

We will be examining the Bill and amendments proposed to it in a cross-party spirit of constructive criticism on these Benches. I hope the Government will respond likewise. The tests we will apply include: effective protections for children and vulnerable adults; transparency of systems and power for Ofcom to get to grips with the algorithms underlying them; that regulation is practical and privacy protecting; that online behaviour is treated on all fours with offline; and that there is a limitation of powers of the Secretary of State. We recognise the theme which has come through very strongly today: the importance of media literacy.

Given that there is, as a result of the changes to the Bill, increased emphasis on illegal content, we welcome the new offences, recommended in the main by the Law Commission, such as hate and communication crimes. We welcome Zach’s law, against sending flashing images or “epilepsy trolling”, as it is called, campaigned for by the Epilepsy Society, which is now in Clause 164 of the Bill. We welcome too the proposal to make an offence of encouraging self-harm. I hope that more is to come along the lines requested by my noble friend Lady Parminter.

There are many other forms of behaviour which are not and will not be illegal, and which may, according to terms of service, be entirely legal, but are in fact harmful. The terms of service of a platform acquire great importance as a result of these changes. Without “legal but harmful” regulation, platforms’ terms of service may not reflect the risks to adults on that service, and I was delighted to hear what the noble Baroness, Lady Stowell, had to say on this. That is why there must be a duty on platforms to undertake and publish risk and impact assessments on the outcomes of their terms of service and the use of their user empowerment tools, so that Ofcom can clearly evaluate the impact of their design and insist on changes or adherence to terms of service, issue revised codes or argue for more powers as necessary, for all the reasons set out by the noble Baroness, Lady Gohir, and my noble friend Lady Parminter.

The provisions around user empowerment tools have now become of the utmost importance as a result of these changes. However, as Carnegie, the Antisemitism Policy Trust, and many noble Lords today have said, these should be on by default to protect those suffering from poor mental health or who might lack faculty to turn them on.

Time is short today, so I can give only a snapshot of where else we on these Benches—and those on others, I hope—will be focusing in Committee. The current wording around “content of democratic importance” and “journalistic content” creates a lack of clarity for moderation processes. As recommended by the Joint Committee, these definitions should be replaced with a single statutory requirement to protect content where there are reasonable grounds to believe it will be in the public interest, as supported by the Equality and Human Rights Commission.

There has been a considerable amount of focus on children today, and there are a number of amendments that have clearly gained a huge amount of support around the House, and from the Children’s Charities’ Coalition on Internet Safety. They were so well articulated by the noble Baroness, Lady Kidron. I will not adumbrate them, but they include that children’s harms should be specified in the Bill, that we should include reference to the UN convention, and that there should be provisions to prevent online grooming. Particularly in the light of what we heard this week, we absolutely support those campaigning to ensure that the Bill provides for coroners to have access to children’s social media accounts after their deaths. We want to see Minister Scully’s promise to look at this translate into a firm government amendment.

We also need to expressly future-proof the Bill. It is not at all clear whether the Bill will be adequate to regulate and keep safe children in the metaverse. One has only to read the recent Institution of Engineering and Technology report, Safeguarding the Metaverse, and the report of the online CSA covert intelligence team, to realise that it is a real problem. We really need to make sure that we get the Bill right from this point of view.

As far as pornography is concerned, if we needed any more convincing of the issues surrounding children’s access to pornography, the recent research by the Children’s Commissioner, mentioned by several noble Lords, is the absolute clincher. It underlines the importance of the concerns of the coalition of charities, the noble Lord, Lord Bethell, and many other speakers today, who believe that the Online Safety Bill does not go far enough to prevent children accessing harmful pornographic content. We look forward to debating those amendments when they are put forward by the noble Lord, Lord Bethell.

We need to move swiftly on Part 5 in particular. The call to have a clear time limit to bring it in within six months of the Bill becoming law is an absolutely reasonable and essential demand.

We need to enshrine age-assurance principles in the Bill. The Minister is very well aware of issues relating to the Secretary of State’s powers. They have been mentioned by a number of noble Lords, and we need to get them right. Some can be mitigated by further and better parliamentary scrutiny, but many should simply be omitted from the Bill.

As has been mentioned by a number of noble Lords, there is huge regret around media literacy. We need to ensure that there is a whole-of-government approach to media literacy, with specific objectives set for not only Ofcom but the Government itself. I am sure that the noble Lord, Lord Stevenson, will be talking about an independent ombudsman.

End-to-end encryption has also come up; of course, that needs protecting. Clause 110 on the requirement by Ofcom to use accredited technology could lead to a requirement for continual surveillance. We need to correct that as well.

There is a lot in the Bill. We need to debate and tackle the issue of misinformation in due course, but this may not be the Bill for it. There are issues around what we know about the solutions to misinformation and disinformation and the operation of algorithmic amplification.

The code for violence against women and girls has been mentioned. I look forward to debating that and making sure that Ofcom has the power and the duty to produce a code which will protect women and girls against that kind of abuse online. We will no doubt consider criminal sanctions against senior managers as well. A Joint Committee, modelled on the Joint Committee on Human Rights, to ensure that the Bill is future-proofed along the lines that the noble Lords, Lord Inglewood and Lord Balfe, talked about is highly desirable.

The Minister was very clear in his opening remarks about what amendments he intends to table in Committee. I hope that he has others under consideration and that he will be in listening mode with regard to the changes that the House has said it wants to see today. Subject to getting the Bill in the right shape, these Benches are very keen to see early implementation of its provisions. I hope that the Ofcom implementation road map will be revised, and that the Minister can say something about that. It is clearly the desire of noble Lords all around the House to improve the Bill, but we also want to see it safely through the House so that the long-delayed implementation can start.

This Bill is almost certainly not going to be the last word on the subject, as the noble Baroness, Lady Merron, very clearly said at the beginning of this debate, but it is a vital start. I am glad to say that today we have started in a very effective way.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Wednesday 19th April 2023 Lords Chamber

[Lord Cormack (Con)]

Of course we should not. What I am saying is that this amendment is simple. If it is in the Bill, it should then be what we are aiming to create as the Bill goes through this House, with our hours of scrutiny. I shall not take part in many parts of this Bill, as I am not equipped to do so, but there are many in this House who are. Having been set the benchmark of this amendment, they can seek to make the Bill comprehensible to those of us—and that seems to include the noble Baroness, Lady Fox—who at the moment find it incomprehensible.

In a way, we are dealing with the most important subject of all: the protection of childhood innocence. We have got to err in that direction. Although I yield to no one in my passionate belief in the freedom of speech, it must have respect for the decencies of life and not be propagator of the profanities of life.

[Lord Clement-Jones (LD)]

My Lords, I think we need to move now to closing speeches, if that seems appropriate—

[Baroness Chakrabarti (Lab)]

I have tried to be patient, and I will be very brief. A lot has been said about a lawyer’s paradise. At the moment, the lawyers are over here and paradise is over there and there is a gulf between us. Like the noble Lord, Lord Allan of Hallam, I declare my former interest. I did not get any shillings from Facebook or any other big tech empires, but I was a government lawyer for some years, and it is in that vein that I may have a small contribution to make, if the noble Lord, Lord Clement-Jones, does not mind.

There can be a real benefit to an amendment such as this. I want to explain why, not by repeating anything that I said at Second Reading on the substance of the Bill but by speaking from the perspective of legislative drafting and its policy. I will confine my short remarks to that.

In my view, length is always an issue. My noble friend was quite right when he moved his amendment to say that the burden was on him because he was going to add to the length of a very long Bill. In my experience as a government lawyer for about five and half years, with the mixed privilege of sitting over there through many Bills, sometimes counterintuitively a little extra length can actually aid clarity. Sometimes, a very tightly drafted Bill that is complex can be more difficult to read if, for example, it has many schedules and you need a number of copies open at any one time in order to make reference to what will be substantive sections and subsections of the Act. Ironically, it is sometimes beneficial to add a clause of this kind.

There are, I would argue, three potential reasons why Governments sometimes want to do this in relation to legislative policy. One reason is accessibility, and that has been mentioned by a number of noble Lords today. That is, I think, generally a good thing. It is not easy to achieve; I do not blame any colleagues in the Box or the Office of the Parliamentary Counsel, or Ministers, for the challenge of legislating in a complex, fast-developing area that is only going to change over time. But accessibility can be aided at times by a provision of the kind that my noble friend Lord Stevenson of Balmacara, the noble Baroness, Lady Kidron, and others are proposing.

A second possible reason is to aid interpretation, which can be very beneficial as well. That is not just interpretation for judges, litigators and these wicked barracuda lawyers that everyone is so concerned about. Interpretation is important in practice when people are having to deal on a day-to-day basis with the functioning of contentious and important legislation; that is when they have executive, regulatory and legislative functions under a measure of this kind. It is to aid their interpretation—a point made rather well, if I may say so, by the noble Baroness, Lady Harding.

So, it is not just about interpretation for lawyers, in order to sue based on what things mean; it is to aid regulators of those in the regulated sector and, potentially, members of the public and pressure groups, with some advice. As a lawyer, I consider myself a half-decent legislative professional, and this is a complex Bill for me. It would be aided by a provision of the kind my noble friends are proposing. I am saying this, really, to tempt the Minister seriously to consider something like it. I suppose I am partly trying to pre-empt what I suspect is in his brief to say by way of rebuttal in just a moment.

The third potential reason to have a provision like this at the beginning of the Bill is pure politics, and we sometimes see that in Bills: it is total flummery, and just a way of making a big political statement of intent. That is never, in my view, a good enough reason by itself. But that is not what is happening or what is suggested in my noble friend’s amendment.

I now come to complexity and the benefits of a purposive provision in this Bill. Before the Minister says that it is not appropriate, not what we do and not what parliamentary counsel does, may I remind noble Lords of another Bill going through Parliament at the moment? In contrast to this Bill, which consists of 247 pages, 212 clauses and 17 schedules, we are going to have another controversial—more controversial, I would argue—Bill in due course with a mere 59 pages, 58 clauses and one schedule, which is just a list of countries. That Illegal Migration Bill has, in fact, a purposive provision right at the beginning, in the first subsection of Clause 1. I am not making a point about the substance of that legislation; I am just pre-empting any argument that this is not what we do and not how we draft Bills. Sometimes, it appears, it is. As I say, it is a much shorter, much simpler, dare I say even more controversial Bill, and perhaps there is more politics there than accessibility of interpretation.

That was my cheap point. What I really want to say to all noble Lords in this Committee is that for the purposes of debating this amendment, let us put to one side what we think about the Bill and the various clauses and amendments we would like to see or not see. Let us just ask: is this amendment as drafted and the approach recommended by my noble friend going to aid accessibility and interpretation—not litigation and lawyers and those wicked people in my profession, but the people who, day to day, will have to live and work with the proposed new regime? Whatever one’s views—be they those of the noble Baroness, Lady Fox, or others—about the Bill as it stands or as it should or should not stand, as amended, something like Amendment 1, in my submission, is a very good idea.

--- Later in debate ---

[Baroness Stowell of Beeston (Con)]

My Lords, just before the noble Lord, Lord Clement-Jones gets to wind up, I wanted to ask a question and make a point of clarification. I am grateful for the contribution from the noble Baroness, Lady Chakrabarti; that was a helpful point to make.

My question, which I was going to direct to the noble Lord, Lord Stevenson—although it may be one that the noble Lord, Lord Clement-Jones, wants to respond to if the noble Lord, Lord Stevenson, is not coming back—is about the use of the word “purpose” versus “objective”. The point I was trying to make in referring to the Joint Committee’s report was that, when it set out the limbs of this amendment, it was referring to them as objectives for Ofcom. What we have here is an amendment that is talking about purposes of the Bill, and in the course of this debate we have been talking about the need for clarity of purpose. The point I was trying to make was not that I object to the contents of this amendment, but that if we are looking for clarity of purpose to inform the way we want people to behave as a result of this legislation, I would make it much shorter and simpler, which is why I pointed to subsection (g) of the proposed clause.

It may be that the content of this amendment—and this is where I pick up the point the noble Baroness, Lady Chakrabarti, was making—is not objectionable, although I take the point made by the noble Baroness, Lady Fox. However, the noble Baroness, Lady Chakrabarti, is right: at the moment, let us worry less about the specifics. Then, we can be clearer about what bits of the amendment are meant to be doing what, rather than trying to get all of them to offer clarity of purpose. That is my problem with it: there are purposes, which, as I say, are helpful structurally in terms of how an organisation might go about its work, and there is then the clarity of purpose that should be driving everything. The shorter, simpler and more to the point we can make that, the better.

[Lord Clement-Jones (LD)]

My Lords, I thank the noble Baroness. I hope I have not appeared to rush the proceedings, but I am conscious that there are three Statements after the Bill. I thank the noble Lord, Lord Stevenson, for tabling this amendment, speaking so cogently to it and inspiring so many interesting and thoughtful speeches today. He and I have worked on many Bills together over the years, and it has been a real pleasure to see him back in harness on the Opposition Front Bench, both in the Joint Committee and on this Bill. Long may that last.

It has been quite some journey to get to this stage of the Bill; I think we have had four Digital Ministers and five Prime Ministers since we started. It is pretty clear that Bismarck never said, “Laws are like sausages: it’s best not to see them being made”, but whoever did say it still made a very good point. The process leading to today’s Bill has been particularly messy, with Green and White Papers; a draft Bill; reports from the Joint Committee and Lords and Commons Select Committees; several versions of the Bill itself; and several government amendments anticipated to come. Obviously, the fact that the Government chose to inflict last-minute radical surgery on the Bill to satisfy what I believe are the rather unjustified concerns of a small number in the Government’s own party made it even messier.

It is extremely refreshing, therefore, to start at first principles, as the noble Lord, Lord Stevenson, has done. He has outlined them and the context in which we should see them—namely, we should focus essentially on the systems, what is readily enforceable and where safety by design and transparency are absolutely the essence of the purpose of the Bill. I share his confidence in Ofcom and its ability to interpret those purposes. I say to the noble Baroness, Lady Stowell, that I am not going to dance on the heads of too many pins about the difference between “purpose” and “objective”. I think it is pretty clear what the amendment intends, but I do have a certain humility about drafting; the noble Baroness, Lady Chakrabarti, reminded us of that. Of course, one should always be open to change and condensation of wording if we need to do that. But we are only at Amendment 1 in Committee, so there is quite a lot of water to flow under the bridge.

It is very heartening that there is a great deal of cross-party agreement about how we must regulate social media going forward. These Benches—and others, I am sure—will examine the Bill extremely carefully and will do so in a cross-party spirit of constructive criticism, as we explained at Second Reading. Our Joint Committee on the draft Bill exemplified that cross-party spirit, and I am extremely pleased that all four signatories to this amendment served on the Joint Committee and readily signed up to its conclusions.

Right at the start of our report, we made a strong case for the Bill to set out these core objectives, as the noble Lord, Lord Stevenson, has explained, so as to provide clarity—that word has been used around the Committee this afternoon—for users and regulators about what the Bill is trying to achieve and to inform the detailed duties set out in the legislation. In fact, I believe that the noble Lord, Lord Stevenson, has improved on that wording by including a duty on the Secretary of State, as well as Ofcom, to have regard to the purposes.

We have heard some very passionate speeches around the Committee for proper regulation of harms on social media. The case for that was made eloquently to the Joint Committee by Ian Russell and by witnesses such as Edleen John of the FA and Frances Haugen, the Facebook whistleblower. A long line of reports by Select Committees and all-party groups have rightly concluded that regulation is absolutely necessary given the failure of the platforms even today to address the systemic issues inherent in their services and business models.

The introduction to our Joint Committee report makes it clear that without the original architecture of a duty of care, as the White Paper originally proposed, we need an explicit set of objectives to ensure clarity for Ofcom when drawing up the codes and when the provisions of the Bill are tested in court, as they inevitably will be. Indeed, in practice, the tests that many of us will use when judging whether to support amendments as the Bill passes through the House are inherently bound up with these purposes, several of which many of us mentioned at Second Reading. Decisions may need to be made on balancing some of these objectives and purposes, but that is the nature of regulation. I have considerable confidence, as I mentioned earlier, in Ofcom’s ability to do this, and those seven objectives—as the right reverend Prelate reminded us, the rule of seven is important in other contexts—set that out.

In their response to the report published more than a year ago, the Government repeated at least half of these objectives in stating their own intentions for the Bill. Indeed, they said:

“We are pleased to agree with the Joint Committee on the core objectives of the Bill”,


and, later:

“We agree with all of the objectives the Joint Committee has set out, and believe that the Bill already encapsulates and should achieve these objectives”.


That is exactly the point of dispute: we need this to be explicit, and the Government seem to believe that it is implicit. Despite agreeing with those objectives, at paragraph 21 of their response the Government say:

“In terms of the specific restructure that the Committee suggested, we believe that using these objectives as the basis for Ofcom’s regulation would delegate unprecedented power to a regulator. We do not believe that reformulating this regulatory framework in this way would be desirable or effective. In particular, the proposal would leave Ofcom with a series of high-level duties, which would likely create an uncertain and unclear operating environment”.


That is exactly the opposite of what most noble Lords have been saying today.

It has been an absolute pleasure to listen to so many noble Lords across the Committee set out their ambitions for the Bill and their support for this amendment. It started with the noble Baroness, Lady Kidron, talking about this set of purposes being the “North Star”. I pay tribute to her tireless work, which drove all of us in the Joint Committee on in an extremely positive way. I am not going to go through a summing-up process, but what my noble friend had to say about the nature of the risk we are undertaking and the fact that we need to be clear about it was very important. The whole question of clarity and certainty for business and the platforms, in terms of making sure that they understand the purpose of the Bill—as the noble Baroness, Lady Harding, and many other noble Lords mentioned—is utterly crucial.

If noble Lords look at the impact assessment, they will see that the Government seem to think the cost of compliance is a bagatelle—but, believe me, it will not be. It will be a pretty expensive undertaking to train people in those platforms, across social media start-ups and so on to understand the nature of their duties.

[Lord Allan of Hallam (LD)]

I was just refreshing myself on what the impact assessment says. It says that the cost of reading and understanding the regulations will range from £177 for a small business to £2,694 for a large category 1 service provider. To reinforce my noble friend’s point: it says it will cost £177 to read and understand the Bill. I am not sure that will be what happens in practice.

[Lord Clement-Jones (LD)]

I thank my noble friend for having the impact assessment so close to hand; that is absolutely correct.

The noble Baroness, Lady Fox, talked about unintended consequences—apart from bringing the people of Ukraine into the argument, which I thought was slightly extraneous. I think we need a certain degree of humility about the Bill. As the noble Lord, Lord Knight, said, this may well be part 1; we may need to keep iterating to make sure that this is effective for child safety and for the various purposes set out in the Bill. The Government have stated that this amendment would create greater uncertainty, but that is exactly the opposite of what our committee concluded. I believe, as many of us do, that the Government are wrong in taking the view that they have; I certainly hope that they will reconsider.

At Second Reading, the noble Lord, Lord Stevenson, made something that he probably would not want, given the antecedence of the phrase, to characterise as a big open offer to the Minister to work on a cross-party basis to improve the Bill. We on these Benches absolutely agree with that approach. We look forward to the debates in Committee in that spirit. We are all clearly working towards the same objective, so I hope the Government will respond in kind. Today is the first opportunity to do so—I set out that challenge to the Minister.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 25th April 2023 Lords Chamber

[Baroness Berridge (Con)]

My Lords, I will lend my support to Amendments 19 and 22. It is a pleasure to speak after the noble Baroness, Lady Benjamin. I may be one of those people in your Lordships’ House who relies significantly on the British Board of Film Classification for movie watching, as I am one of the faint-hearted.

In relation to app stores, it is not just children under 18 for whom parents need the age verification. If you are a parent of a child who has significant learning delay, the internet is a wonderful place where they can get access to material and have development that they might not ordinarily have had. But, of course, turning 17 or 18 is not the threshold for them. I have friends who have children with significant learning delay. Having that assurance, so they know which apps are which in the app store, goes well beyond 18 for them. Obviously it will not be a numerical equivalent for their child—now a young adult—but it is important to them to know that the content they get on a free app or an app purchased from the app store is suitable.

I just wanted to raise that with noble Lords, as children and some vulnerable adults—not all—would benefit from the kind of age verification that we have talked about. I appreciate the points that the noble Lord, Lord Allan, raised about where the Bill has ended up conceptually and the framework that Ofcom will rely on. Like him, I am a purist sometimes but, pragmatically, I think that the third concept raised by the noble Baroness, Lady Kidron, about protection and putting this in the app store and bringing it parallel with things such as classification for films and other video games is really important.

[Lord Clement-Jones (LD)]

My Lords, this has been a really fascinating debate and I need to put a stake in the ground pretty early on by saying that, although my noble friend Lord Allan has raised some important points and stimulated an important debate, I absolutely agree with the vast majority of noble Lords who have spoken in favour of the amendment so cogently put forward by the noble Baronesses, Lady Kidron and Lady Harding.

Particularly as a result of the Bill’s being the subject of a Joint Committee, it has changed considerably over time in response to comment, pressure, discussion and debate and I believe very much that during Committee stage we will be able to make changes, and I hope the Minister will be flexible enough. I do not believe that the framework of the Bill is set in concrete. There are many things we can do as we go through, particularly in the field of making children safer, if we take some of the amendments that have been put forward on board. In particular, the noble Baroness, Lady Kidron, set out why the current scope of the Bill will fail to protect children if it is kept to user-to-user and search services. She talked about blogs with limited functionalities, gaming without user functionalities and mentioned the whole immersive environment, which the noble Lord, Lord Russell, described as eye-watering. As she said, it is not fair to leave parents or children to work out whether they are on a regulated service. Children must be safe wherever they are online.

As someone who worked with the noble Baroness, Lady Kidron, in putting the appropriate design code in place in that original Data Protection Act, I am a fervent believer that it is perfectly appropriate to extend in the way that is proposed today. I also support her second amendment, which would bring the Bill’s child user condition in line with the threshold of the age-appropriate design code. It is the expectation—I do not think it an unfair expectation—of parents, teachers and children themselves that the Bill will apply to children wherever they are online. Regulating only certain services will mean that emerging technologies that do not fit the rather narrow categories will not be subject to safety duties.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Harding. If one is permitted to say this in the digital age, I am on exactly the same page as she is.

There are two elements to the debate on this group. It is partly about compliance, and I absolutely understand the point about the costs of that, but I also take comfort from some of the things that the noble Lord. Lord Vaizey, said about the way that Ofcom is going to deliver the regulation and the very fact that this is going to be largely not a question of interpretation of the Act, when it comes down to it, but is going to be about working with the codes of practice. That will be a lot more user-friendly than simply having to go to expensive expert lawyers, as the noble Baroness, Lady Fox, said—not that I have anything against expensive expert lawyers.

I am absolutely in agreement with the noble Baroness, Lady Kidron, that small is not safe. As the noble Baroness, Lady Harding, described, small can become big. We looked at this in our Joint Committee and recommended to the Government that they should take a more nuanced approach to regulation, based not just on size and high-level functionality but on factors such as risk, reach, user base, safety performance and business model. All those are extremely relevant but risk is the key, right at the beginning. The noble Baroness, Lady Fox, also said that Reddit should potentially be outside, but Reddit has had its own problems, as we know. On that front, I am on absolutely the same page as those who have spoken about keeping us where we are.

The noble Lord, Lord Moylan, has been very cunning in the way that he has drawn up his Amendment 9. I am delighted to be on the same page as my noble friend —we are making progress—but I agree only with the first half of the amendment because, like the noble Baroness, Lady Kidron, I am a financial contributor to Wikipedia. A lot of us depend on Wikipedia; we look up the ages of various Members of this House when we see them in full flight and think, “Good heavens!” Biographies are an important part of this area. We have all had Jimmy Wales saying, as soon as we get on to Wikipedia, “You’ve already looked at Wikipedia 50 times this month. Make a contribution”, and that is irresistible. There is quite a strong case there. It is risk-based so it is not inconsistent with the line taken by a number of noble Lords in all this. I very much hope that we can get something out of the Minister—maybe some sort of sympathetic noises for a change—at this stage so that we can work up something.

I must admit that the briefing from Wikimedia, which many of us have had, was quite alarming. If the Bill means that we do not have users in high-risk places then we will find that adults get their information from other sources that are not as accurate as Wikipedia —maybe from ChatGPT or GPT-4, which the noble Lord, Lord Knight, is clearly very much an expert in—and that marginalised websites are shut down.

[Lord Allan of Hallam (LD)]

For me, one of the features of the schedule’s list of exempted sites is foreign state entities. Therefore, we could end up in the absurd situation where you could not read about the Ukraine war on Wikipedia, but you would be able to read about the Ukraine war on the Russian Government website.

[Lord Clement-Jones (LD)]

My Lords, if we needed an example of something that gave us cause for concern, that would be it; but a very good case has been made, certainly for the first half of the amendment in the name of the noble Lord, Lord Moylan, and we on these Benches support it.

[Baroness Merron (Lab)]

My Lords, it has certainly been an interesting debate, and I am grateful to noble Lords on all sides of the Committee for their contributions and considerations. I particularly thank the noble Lords who tabled the amendments which have shaped the debate today.

In general, on these Benches, we believe that the Bill offers a proportionate approach to tackling online harms. We feel that granting some of the exemptions proposed in this group would be unintentionally counterproductive and would raise some unforeseen difficulties. The key here—and it has been raised by a number of noble Lords, including the noble Baronesses, Lady Harding and Lady Kidron, and, just now, the noble Lord, Lord Clement-Jones, who talked about the wider considerations of the Joint Committee and factors that should be taken into account—is that we endorse a risk-based approach. In this debate, it is very important that we take ourselves back to that, because that is the key.

My view is that using other factors, such as funding sources or volunteer engagement in moderation, cuts right across this risk-based approach. To refer to Amendment 4, it is absolutely the case that platforms with fewer than 1 million UK monthly users have scope to create considerable harm. Indeed, noble Lords will have seen that later amendments call for certain small platforms to be categorised on the basis of the risk—and that is the important word—that they engender, rather than the size of the platform, which, unfortunately, is something of a crude measure. The point that I want to make to the noble Baroness, Lady Fox, is that it is not about the size of the businesses and how they are categorised but what they actually do. The noble Baroness, Lady Kidron, rightly said that small is not safe, for all the reasons that were explained, including by the noble Baroness, Lady Harding.

Amendment 9 would exempt small and medium-sized enterprises and certain other organisations from most of the Bill’s provisions. I am in no doubt about the well-meaning nature of this amendment, tabled by the noble Lord, Lord Moylan, and supported by the noble Lord, Lord Vaizey. Indeed, there may well be an issue about how start-ups and entrepreneur unicorns cope with the regulatory framework. We should attend to that, and I am sure that the Minister will have something to say about it. But I also expect that the Minister will outline why this would actually be unhelpful in combating many of the issues that this Bill is fundamentally designed to deal with if we were to go down the road of these exclusions.

In particular, granting exemptions simply on the basis of a service’s size could lead to a situation where user numbers are capped or perhaps even where platforms are deliberately broken up to avoid regulation. This would have an effect that none of us in this Chamber would want to see because it would embed harmful content and behaviour rather than helping to reduce them.

Referring back to the comments of the noble Lord, Lord Moylan, I agree with the noble Lord, Lord Vaizey, in his reflection. I, too, have not experienced the two sides of the Chamber that the noble Lord, Lord Moylan, described. I feel that the Chamber has always been united on the matter of child safety and in understanding the ramifications for business. It is the case that good legislation must always seek a balance, but, to go back to the point about excluding small and medium-sized enterprises, to call them a major part of the British economy is a bit of an understatement when they account for 99.9% of the business population. In respect of the exclusion of community-based services, including Wikipedia—and we will return to this in the next group—there is nothing for platforms to fear if they have appropriate systems in place. Indeed, there are many gains to be had for community-based services such as Wikipedia from being inside the system. I look forward to the further debate that we will have on that.

I turn to Amendment 9A in the name of my noble friend Lord Knight of Weymouth, who is unable to participate in this section of the debate. It probes how the Bill’s measures would apply to specialised search services. Metasearch engines such as Skyscanner have expressed concern that the legislation might impose unnecessary burdens on services that pose little risk of hosting the illegal content targeted by the Bill. Perhaps the Minister, in his response, could confirm whether or not such search engines are in scope. That would perhaps be helpful to our deliberations today.

While we on these Benches are not generally supportive of exemptions, the reality is that there are a number of online search services that return content that would not ordinarily be considered harmful. Sites such as Skyscanner and Expedia, as we all know, allow people to search for and book flights and other travel services such as car hire. Obviously, as long as appropriate due diligence is carried out on partners and travel agents, the scope for users to encounter illegal or harmful material appears to be minimal and returns us to the point of having a risk-based approach. We are not necessarily advocating for a carve-out from the Bill, but it would perhaps be helpful to our deliberations if the Minister could outline how such platforms will be expected to interact with the Ofcom-run online safety regime.

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

My Lords, to go back not just to the age question, the noble Lord, Lord Allan of Hallam, reminded us that community-led moderation is not just Wikipedia. What I tried to hint at earlier is that that is one of the most interesting, democratic aspects of the online world, which we should protect.

We often boast that we are a self-regulating House and that that makes us somehow somewhat superior to up the road—we are all so mature because we self-regulate; people do behave badly but we decide. It is a lesson in democracy that you have a self-regulating House, and there are parts of the online world that self-regulate. Unless we think that the citizens of the UK are less civilised than Members of the House of Lords, which I would refute, we should say that it is positive that there are self-moderating, self-regulating online sites. If you can say something and people can object and have a discussion about it, and things can be taken down, to me that is the way we should deal with speech that is inappropriate or wrong. The bulk of these amendments—I cannot remember how many there are now—are right.

I was glad that the noble Lord, Lord Moylan, said he could not understand why this grouping had happened, which is what I said earlier. I had gone through a number of groupings thinking: “What is that doing there? Am I missing something? Why is that in that place?” I think we will come back to the age verification debate and discussion.

One thing to note is that one of the reasons organisations such as Wikipedia would be concerned about age verification—and they are—is anonymity. It is something we have to consider. What is going to happen to anonymity? It is so important for journalists, civil liberty activists and whistleblowers. Many Wikipedia editors are anonymised, maybe because they are politically editing sites on controversial issues. Imagine being a Wikipedia editor from Russia at the moment—you would not want to have to say who you are. We will come back to it but it is important to understand that Amendment 26, and those who are saying that we should look at the question of age verification, are not doing so because they do not care about children and are not interested in protecting them. However, the dilemmas of any age-gating or age verification for adult civil liberties have to be considered. We have to worry that, because of an emphasis on checking age, some websites will decide to sanitise what they allow to be published to make it suitable for children, just in case they come across it. Again, that will have a detrimental impact on adult access to all knowledge.

These will be controversial issues, and we will come back to them, but it is good to have started the discussion.

[Lord Clement-Jones (LD)]

My Lords, this has been a very strange debate. It has been the tail end of the last session and a trailer for a much bigger debate coming down the track. It was very odd.

We do not want to see everything behind an age-gating barrier, so I agree with my noble friend. However, as the noble Baroness, Lady Kidron, reminded us, it is all about the risk profile, and that then leads to the kind of risk assessment that a platform is going to be required to carry out. There is a logic to the way that the Bill is going to operate.

When you look at Clause 11(3), you see that it is not disproportionate. It deals with “primary priority content”. This is not specified in the Bill but it is self-harm and pornography—major content that needs age-gating. Of course we need to have the principles for age assurance inserted into the Bill as well, and of course it will be subject to debate as we go forward.

There is technology to carry out age verification which is far more sophisticated than it ever was, so I very much look forward to that debate. We started that process in Part 3 of the Digital Economy Act. I was described as an internet villain for believing in age verification. I have not changed my view, but the debate will be very interesting. As regards the tail-end of the previous debate, of course we are sympathetic on these Benches to the Wikipedia case. As we said on the last group, I very much hope that we will find a way, whether it is in Schedule 1 or in another way, of making sure that Wikipedia is not affected overly by this—maybe the risk profile that is drawn up by Ofcom will make sure that Wikipedia is not unduly impacted.

[Lord Stevenson of Balmacara (Lab)]

Like others, I had prepared quite extensive notes to respond to what I thought the noble Lord was going to say about his amendments in this group, and I have not been able to find anything left that I can use, so I am going to have to extemporise slightly. I think it is very helpful to have a little non-focused discussion about what we are about to talk about in terms of age, because there is a snare and a delusion in quite a lot of it. I was put in mind of that in the discussions on the Digital Economy Act, which of course precedes the Minister but is certainly still alive in our thinking: in fact, we were talking about it earlier today.

The problem I see is that we have to find a way of squaring two quite different approaches. One is to prevent those who should not be able to see material, because it is illegal for them to see it. The other is to find a way of ensuring that we do not end up with an age-gated internet, which I am grateful to find that we are all, I think, agreed about: that is very good to know.

Age is very tricky, as we have heard, and it is not the only consideration we have to bear in mind in wondering whether people should be able to gain access to areas of the internet which we know will be bad and difficult for them. That leads us, of course, to the question about legal but harmful, now resolved—or is it? We are going to have this debate about age assurance and what it is. What is age verification? How do they differ? How does it matter? Is 18 a fixed and final point at which we are going to say that childhood ends and adulthood begins, and therefore one is open for everything? It is exactly the point made earlier about how to care for those who should not be exposed to material which, although legal for them by a number called age, is not appropriate for them in any of the circumstances which, clinically, we might want to bring to bear.

I do not think we are going to resolve these issues today—I hope not. We are going to talk about them for ever, but at this stage I think we still need a bit of thinking outside a box which says that age is the answer to a lot of the problems we have. I do not think it is, but whether the Bill is going to carry that forward I have my doubts. How we get that to the next stage, I do not know, but I am looking forward to hearing the Minister’s comments on it.

--- Later in debate ---

[Baroness Kidron (CB)]

I also welcome these amendments, but I have two very brief questions for the Minister. First, in Amendment 27A, it seems that the child risk assessment is limited only to category 1 services and will be published only in the terms of service. As he probably knows, 98% of people do not read terms of service, so I wondered where else we might find this, or whether there is a better way of dealing with it.

My second question is to do with Amendments 64A and 88A. It seems to me—forgive me if I am wrong—that the Bill previously stipulated that all regulated search and user services had to make and keep a written record of any measure taken in compliance with a relevant duty, but now it seems to have rowed back to only category 1 and 2A services. I may be wrong on that, but I would like to check it for the record.

[Lord Clement-Jones (LD)]

My Lords, the noble Baroness, Lady Kidron, put her finger exactly on the two questions that I wanted to ask: namely, why only category 1 and category 2A, and is there some rowing back involved here? Of course, none of this prejudices the fact that, when we come later in Committee to talk about widening the ambit of risk assessments to material other than that which is specified in the Bill, this kind of transparency would be extremely useful. But the rationale for why it is only category 1 and category 2A in particular would be very useful to hear.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 25th April 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, earlier today the noble Baroness, Lady Benjamin, referred to a group of us as kindred spirits. I suggest that all of us contributing to this debate are kindred spirits in our desire to see consistent outcomes. All of us would like to see a world where our children never see pornography on any digital platform, regardless of what type of service it is. At the risk of incurring the ire of my noble friend Lord Moylan, we should have zero tolerance for children seeing and accessing pornography.

I agree with the desire to be consistent, as the noble Baroness, Lady Ritchie, and the noble Lord, Lord Browne, said, but it is consistency in outcomes that we should focus on. I am very taken with the point made by the noble Lord, Lord Allan, that we must be very careful about the unintended consequences of a consistent regulatory approach that might end up with inconsistent outcomes.

When we get to it later—I am not sure when—I want to see a regulatory regime that is more like the one reflected in the amendments tabled by the noble Baroness, Lady Kidron, and my noble friend Lord Bethell. We need in the Bill a very clear definition of what age assurance and age verification are. We must be specific on the timing of introducing the regulatory constraints on pornography. We have all waited far too long for that to happen and that must be in the Bill.

I am nervous of these amendments that we are debating now because I fear other unintended consequences. Not only does this not incentivise general providers, as the noble Lord, Lord Allan, described them, to remove porn from their sites but I fear that it incentivises them to remove children from their sites. That is the real issue with Twitter. Twitter has very few child users; I do not want to live in a world where our children are removed from general internet services because we have not put hard age gates on the pornographic content within them but instead encouraged those services to put an age gate on the front door. Just as the noble Lord, Lord Allan, said earlier today, I fear that, with all the best intentions, the desire to have consistent outcomes and these current amendments would regulate the high street rather than the porn itself.

[Lord Clement-Jones (LD)]

My Lords, there is absolutely no doubt that across the Committee we all have the same intent; how we get there is the issue between us. It is probably about the construction of the Bill, rather than the duties that we are imposing.

It is a pleasure again to follow the noble Baroness, Lady Harding. If you take what my noble friend Lord Allan said about a graduated response and consistent outcomes, you then get effective regulation.

I thought that the noble Baroness, Lady Kidron, had it right. If we passed her amendments in the second group, and included the words “likely to be accessed”, Clause 11 would bite and we would find that there was consistency of outcomes for primary priority content and so on, and we would then find ourselves in much the same space. However, it depends on the primary purpose. The fear that we have is this. I would not want to see a Part 5 service that adds user-generated content then falling outside Part 5 and finding itself under Part 3, with a different set of duties.

I do not see a huge difference between Part 3 and Part 5, and it will be very interesting when we come to debate the later amendments tabled by the noble Lord, Lord Bethell, and the noble Baroness, Lady Kidron. Again, why do we not group these things together to have a sensible debate? We seem to be chunking-up things in a different way and so will have to come back to this and repeat some of what we have said. However, I look forward to the debate on those amendments, which may be a much more effective way of dealing with this than trying to marry Part 5 and Part 3.

I understand entirely the motives of the noble Baroness, Lady Ritchie, and that we want to ensure that we capture this. However, it must be the appropriate way of regulating and the appropriate way of capturing it. I like the language about consistent outcomes without unintended consequences.

--- Later in debate ---

In her Amendment 125A, the noble Baroness, Lady Ritchie of Downpatrick, raises concerns that a provider of pornographic content could move from being a Part 5 service to a Part 3 service if they allow comments or reviews on their content. I am grateful to her for raising and discussing the issue earlier. Amendment 125A in her name intends to narrow—

[Lord Clement-Jones (LD)]

I am sorry, but can the Minister just clarify that? Is he saying that it is not possible to be covered by both Part 3 and Part 5, so that where a Part 5 service has user-generated content it is also covered by Part 3? Can he clarify that you cannot just escape Part 5 by adding user-generated content?

[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—

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 2nd May 2023 Lords Chamber

[Viscount Colville of Culross (CB)]

I too wish my noble friend Lady Kidron a happy birthday.

I will speak to Amendment 261. Having sat through the Communications Committee’s inquiries on regulating the internet, it seemed to me that the real problem was the algorithms and the way they operated. We have heard that again and again throughout the course of the Bill. It is no good worrying just about the content, because we do not know what new services will be created by technology. This morning we heard on the radio from the Google AI expert, who said that we have no idea where AI will go or whether it will become cleverer than us; what we need to do is to keep an eye on it. In the Bill, we need to make sure that we are looking at the way technology is being developed and the possible harms it might create. I ask the Minister to include that in his future-proofing of the Bill, because, in the end, this is a very fast-moving world and ecosystem. We all know that what is present now in the digital world might well be completely changed within a few years, and we need to remain cognisant of that.

[Lord Clement-Jones (LD)]

My Lords, we have already had some very significant birthdays during the course of the Bill, and I suspect that, over many more Committee days, there will be many more happy birthdays to celebrate.

This has been a fascinating debate and the Committee has thrown up some important questions. On the second day, we had a very useful discussion of risk which, as the noble Lord, Lord Russell, mentioned, was prompted by my noble friend Lord Allan. In many ways, we have returned to that theme this afternoon. The noble Baroness, Lady Fox, who I do not always agree with, asked a fair question. As the noble Baroness, Lady Kidron, said, it is important to know what harms we are trying to prevent—that is how we are trying to define risk in the Bill—so that is an absolutely fair question.

The Minister has shown flexibility. Sadly, I was not able to be here for the previous debate, and it is probably because I was not that he conceded the point and agreed to put children’s harms in the Bill. That takes us a long way further, and I hope he will demonstrate that kind of flexibility as we carry on through the Bill.

The noble Lord, Lord Moylan, and I have totally different views about what risk it is appropriate for children to face. I am afraid that I absolutely cannot share his view that there is this level of risk. I do not believe it is about eliminating risk—I do not see how you can—but the Bill should be about preventing online risk to children; it is the absolute core of the Bill.

As the noble Lord, Lord Russell, said, the Joint Committee heard evidence from Frances Haugen about the business model of the social media platforms. We listened to Ian Russell, the father of Molly, talk about the impact of an unguarded internet on his daughter. It is within the power of the social media companies to do something about that; this is not unreasonable.

I was very interested in what the noble Viscount, Lord Colville, said. He is right that this is about algorithms, which, in essence, are what we are trying to get to in all the amendments in this really important group. It is quite possible to tackle algorithms if we have a requirement in the Bill to do so, and that is why I support Amendment 261, which tries to address to that.

However, a lot of the rest of the amendments are trying to do exactly the same thing. There is a focus not just on moderating harmful content but on the harmful systems that make digital services systematically unsafe for children. I listened with great interest to what the noble Lord, Lord Russell, said about the 5Rights research which he unpacked. We tend to think that media platforms such as Reddit are relatively harmless but that is clearly not the case. It is very interesting that the use of avatars is becoming quite common in the advertising industry to track where advertisements are ending up—sometimes, on pornography sites. It is really heartening that an organisation such as 5Rights has been doing that and coming up with its conclusions. It is extremely useful for us as policymakers to see the kinds of risks that our children are undertaking.

We were reminded about the origins—way back, it now seems—of the Carnegie duty of care. In a sense, we are trying to make sure that that duty of care covers the systems. We have talked about the functionality and harms in terms of risk assessment, about the child safety duties and about the codes of practice. All those need to be included within this discussion and this framework today to make sure that that duty of care really sticks.

I am not going to go through all the amendments. I support all of them: ensuring functionalities for both types of regulated service, and the duty to consider all harms and not just harmful content. It is absolutely not just about the content but making sure that regulated services have a duty to mitigate the impact of harm in general, not just harms stemming from content.

The noble Baroness, Lady Harding, made a terrific case, which I absolutely support, for making sure that the codes of practice are binding and principle based. At the end of the day, that could be the most important amendment in this group. I must admit that I was quite taken with her description of the Government’s response, which was internally contradictory. It was a very weak response to what I, as a member of the Joint Committee, thought was a very strong and clear recommendation about minimum standards.

This is a really important group of amendments and it would not be a difficult concession for the Government to make. They may wish to phrase things in a different way but we must get to the business case and the operation of the algorithms; otherwise, I do not believe this Bill is going to be effective.

I very much take on board what about the noble Viscount said about looking to the future. We do not know very much about some of these new generative AI systems. We certainly do not know a great deal about how algorithms within social media companies operate. We will come, no doubt, to later amendments on the ability to find out more for researchers and so on, but transparency was one of the things our Joint Committee was extremely keen on, and this is a start.

[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.

--- Later in debate ---

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

My Lords, I join in the chorus of good wishes to the bungee-jumping birthday Baroness, Lady Kidron. I know she will not have thought twice about joining us today in Committee for scrutiny of the Bill, which is testament to her dedication to the cause of the Bill and, more broadly, to protecting children online. The noble Lord, Lord Clement-Jones, is right to note that we have already had a few birthdays along the way; I hope that we get only one birthday each before the Bill is finished.

[Lord Clement-Jones (LD)]

My birthday is in October, so I hope not.

--- Later in debate ---

[Lord Clement-Jones (LD)]

I hope that the Minister has in his brief a response to the noble Baroness’s point about Clause 11(14), which, I must admit, comes across extraordinarily in this context. She quoted it, saying:

“The duties set out … are to be taken to extend only to content that is harmful to children where the risk of harm is presented by the nature of the content (rather than the fact of its dissemination)”.


Is not that exception absolutely at the core of what we are talking about today? It is surely therefore very difficult for the Minister to say that this applies in a very broad way, rather than purely to content.

[Lord Parkinson of Whitley Bay (Con)]

I will come on to talk a bit about dissemination as well. If the noble Lord will allow me, he can intervene later on if I have not done that to his satisfaction.

I was about to talk about the child safety duties in Clause 11(5), which also specifies that they apply to the way that a service is designed, how it operates and how it is used, as well as to the content facilitated by it. The definition of content makes it clear that providers are responsible for mitigating harm in relation to all communications and activity on their service. Removing the reference to content would make service providers responsible for all risk of harm to children arising from the general operation of their service. That could, for instance, bring into scope external advertising campaigns, carried out by the service to promote its website, which could cause harm. This and other elements of a service’s operations are already regulated by other legislation.

--- Later in debate ---

The Bill requires providers to specifically consider as part of their risk assessments how algorithms could affect children’s exposure to illegal content and content which is harmful to children on their service. Service providers will need specifically to consider the harm from content that arises from the manner of dissemination —for example, content repeatedly sent to someone by a person or persons, which is covered in Clause 205(3)(c). Providers will also need to take steps to mitigate and effectively manage any risks, and to consider the design of functionalities, algorithms and other features to meet their illegal content and child safety duties. Ofcom will have a range of powers at its disposal to help it assess whether providers are fulfilling their duties. That includes the power to require information from providers about the operation of their algorithms.

[Lord Clement-Jones (LD)]

Can the Minister assure us that he will take another look at this between Committee and Report? He has almost made the case for this wording to be taken out—he said that it is already covered by a whole number of different clauses in the Bill—but it is still here. There is still an exception which, if the Minister is correct, is highly misleading: it means that you have to go searching all over the Bill to find a way of attacking the algorithm, essentially, and the way that it amplifies, disseminates and so on. That is what we are trying to get to: how to address the very important issue not just of content but of the way that the algorithm operates in social media. This seems to be highly misleading, in the light of what the Minister said.

[Lord Parkinson of Whitley Bay (Con)]

I do not think so, but I will certainly look at it again, and I am very happy to speak to the noble Lord as I do. My point is that it would not be workable or proportionate for a provider to prevent or protect all children from encountering every single instance of the sort of content that I have just outlined, which would be the effect of these amendments. I will happily discuss that with the noble Lord and others between now and Report.

Amendment 27, by the noble Lord, Lord Stevenson, seeks to add a duty to prevent children encountering targeted paid-for advertising. As he knows, the Bill has been designed to tackle harm facilitated through user-generated content. Some advertising, including paid-for posts by influencers, will therefore fall under the scope of the Bill. Companies will need to ensure that systems for targeting such advertising content to children, such as the use of algorithms, protect them from harmful material. Fully addressing the challenges of paid-for advertising is a wider task than is possible through the Bill alone. The Bill is designed to reduce harm on services which host user-generated content, whereas online advertising poses a different set of problems, with different actors. The Government are taking forward work in this area through the online advertising programme, which will consider the full range of actors and sector-appropriate solutions to those problems.

--- Later in debate ---

[Baroness Foster of Aghadrumsee (Non-Afl)]

So it is an interpretive document. The unintended consequences piece was around general comment No. 25 specifically having reference to children being able to seek out content. That is certainly something that I would be concerned about. I am sure that we will discuss it further in the next group of amendments, which are on pornography. If young people were able to seek out harmful content, that would concern me greatly.

I support Amendments 187 and 196, but I have some concerns about the unintended consequences of Amendment 25.

[Lord Clement-Jones (LD)]

My Lords, I think this may have been a brief interlude of positivity. I am not entirely convinced, in view of some of the points that have been made, but certainly I think that it was intended to be.

I will speak first to Amendments 30 and 105. I do not know what the proprieties are, but I needed very little prompting from the LEGO Group to put forward amendments that, in the online world, seek to raise the expectation that regulated services must go beyond purely the avoidance of risk of harm and consider the positive benefits that technology has for children’s development and their rights and overall well-being. It has been extremely interesting to hear that aspect of today’s debate.

It recognises that through the play experience of children, both offline and online, it has an impact on the lives of millions of children that it engages with around the world, and it recognises the responsibility to ensure that, wherever it engages with them, the impact is positive and that it protects and upholds the rights of children and fosters their well-being as part of its mission.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 2nd May 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, the proposers of these amendments have made a very good case to answer. My only reservation is that I think there are rather more subtle and proportionate ways of dealing with this—I take on board entirely what the noble Lord, Lord Bethell, says.

I keep coming back to the deliberations that we had in the Joint Committee. We said:

“All statutory requirements on user-to-user services, for both adults and children, should also apply to Internet Society Services likely to be accessed by children, as defined by the Age Appropriate Design Code”.


This goes back to the test that we described earlier, to

“ensure all pornographic websites would have to prevent children from accessing their content”,

and back to that definition,

“likely to be accessed by children”.

The Government keep resisting this aspect, but it is a really important way of making sure that we deal with this proportionately. We are going to have this discussion about minimum age-assurance standards. Rather than simply saying, “It has to be age verification”, if we had a set of principles for age assurance, which can encompass a number of different tools and approaches, that would also help with the proportionality of what we are talking about.

The Government responded to the point we made about age assurance. The noble Baroness, Lady Kidron, was pretty persuasive in saying that we should take this on board in our Joint Committee report, and she had a Private Member’s Bill at the ready to show us the wording, but the Government came back and said:

“The Committee’s recommendations stress the importance of the use of age assurance being proportionate to the risk that a service presents”.


They have accepted that this would be a proportionate way of dealing with it, so this is not black and white. My reservation is that there is a better way of dealing with this than purely driving through these three or four amendments, but there is definitely a case for the Government to answer on this.

[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.

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[Baroness Kidron (CB)]

My Lords, I support something between the amendments of the noble Lords, Lord Stevenson and Lord Bethell, and the Government. I welcome all three and put on record my thanks to the Government for making a move on this issue.

There are three members of the pre-legislative committee still in the Chamber at this late hour, and I am sure I am not the only one of those three who remembers the excruciating detail in which Suzanne Webb MP, during evidence given with Meta’s head of child safety, established that there was nowhere to report harm, but nowhere—not up a bit, not sideways, not to the C-suite. It was stunning. I have used that clip from the committee’s proceedings several times in schools to show what we do in the House of Lords, because it was fascinating. That fact was also made abundantly clear by Frances Haugen. When we asked her why she took the risk of copying things and walking them out, she said, “There was nowhere to go and no one to talk to”.

Turning to the amendments, like the noble Baroness, Lady Harding, I am concerned about whether we have properly dealt with C-suite reporting and accountability, but I am a hugely enthusiastic supporter of that accountability being in the system. I will be interested to hear the Minister speak to the Government’s amendment, but also to some of the other issues raised by the noble Lord, Lord Knight.

I will comment very briefly on the supply chain and Amendment 219. Doing so, I go back again to Amendment 2, debated last week, which sought to add services not covered by the current scope but which clearly promoted and enabled access to harm and which were also likely to be accessed by children. I have a long quote from the Minister but, because of the hour, I will not read it out. In effect, and to paraphrase, he said, “Don’t worry, they will be caught by the other guys—the search and user-to-user platforms”. If the structure of the Bill means that it is mandatory that the user-to-user and search platforms catch the people in the supply chain, surely it would be a great idea to put that in the Bill absolutely explicitly.

Finally, while I share some of the concerns raised by the noble Baroness, Lady Fox, I repeat my constant reprise of “risk not size”. The size of the fine is related to the turnover of the company, so it is actually proportionate.

[Lord Clement-Jones (LD)]

My Lords, this has been a really interesting debate. I started out thinking that we were developing quite a lot of clarity. The Government have moved quite a long way since we first started debating senior manager liability, but there is still a bit of fog that needs dispelling—the noble Baronesses, Lady Kidron and Lady Harding, have demonstrated that we are not there yet.

I started off by saying yes to this group, before I got to grips with the government amendments. I broadly thought that Amendment 33, tabled by the noble Lord, Lord Stevenson, and Amendment 182, tabled by the noble Lord, Lord Bethell, were heading in the right direction. However, I was stopped short by Trustpilot’s briefing, which talked about a stepped approach regarding breaches and so on—that is a very strong point. It says that it is important to recognise that not all breaches should carry the same weight. In fact, it is even more than that: certain things should not even be an offence, unless you have been persistent or negligent. We have to be quite mindful as to how you formulate criminal offences.

I very much liked what the noble Lord, Lord Bethell, had to say about the tech view of its own liability. We have all seen articles about tech exceptionalism, and, for some reason, that seems to have taken quite a hold—so we have to dispel that as well. That is why I very much liked what the noble Lord, Lord Curry, said. It seemed to me that that was very much part of a stepped approach, while also being transparent to the object of the exercise and the company involved. That fits very well with the architecture of the Bill.

The noble Baroness, Lady Harding, put her finger on it: the Bill is not absolutely clear. In the Government’s response to the Joint Committee’s report, we were promised that, within three to six months, we would get that senior manager liability. On reading the Bill, I am certainly still a bit foggy about it, and it is quite reassuring that the noble Baroness, Lady Harding, is foggy about it too. Is that senior manager liability definitely there? Will it be there?

The Joint Committee made two other recommendations which I thought made a lot of sense: the obligation to report on risk assessment to the main board of a company, and the appointment of a safety controller, which the noble Lord, Lord Knight, mentioned. Such a controller would make it very clear—as with GDPR, you would have a senior manager who you can fix the duty on.

Like the noble Baroness, Lady Harding, I would very much like to hear from the Minister on the question of personal liability, as well as about Ofcom. It is important that any criminal prosecution is mediated by Ofcom; that is cardinal. You cannot just create criminal offences where you can have a prosecution without the intervention of Ofcom. That is extraordinarily important.

I have just a couple of final points. The noble Baroness, Lady Fox, comes back quite often to this point about regulation being the enemy of innovation. It very much depends what kind of innovation we are talking about. Technology is not necessarily neutral. It depends how the humans who deploy it operate it. In circumstances such as this, where we are talking about children and about smaller platforms that can do harm, I have no qualms about having regulation or indeed criminal liability. That is a really important factor. We are talking about a really important area.

I very strongly support Amendment 219. It deals with a really important aspect which is completely missing from the Bill. I have a splendid briefing here, which I am not going to read out, but it is all about Mastodon being one example of a new style of federated platform in which the app or hub for a network may be category 1 owing to the size of its user base but individual subdomains or networks sitting below it could fall under category 2 status. I am very happy to give a copy of the briefing to the Minister; it is a really well-written brief, and demonstrates entirely some of the issues we are talking about here.

I reassure the noble Lord, Lord Knight, that I think the amendment is very well drafted. It is really quite cunning in the way that it is done.

[Baroness Stowell of Beeston (Con)]

My Lords, I wonder whether I can make a brief intervention—I am sorry to do so after the noble Lord, Lord Clement-Jones, but I want to intervene before my noble friend the Minister stands up, unless the Labour Benches are about to speak.

I have been pondering this debate and have had a couple of thoughts. Listening to the noble Lord, Lord Clement-Jones, I am reminded of something which was always very much a guiding light for me when I chaired the Charity Commission, and therefore working in a regulatory space: regulation is never an end in itself; you regulate for a reason.

I was struck by the first debate we had on day one of Committee about the purpose of the Bill. If noble Lords recall, I said in that debate that, for me, the Bill at its heart was about enhancing the accountability of the platforms and the social media businesses. I felt that the contribution from my noble friend Lady Harding was incredibly important. What we are trying to do here is to use enforcement to drive culture change, and to force the organisations not to never think about profit but to move away from profit-making to focusing on child safety in the way in which they go about their work. That is really important when we start to consider the whole issue of enforcement.

It struck me at the start of this discussion that we have to be clear what our general approach and mindset is about this part of our economy that we are seeking to regulate. We have to be clear about the crimes we think are being committed or the offences that need to be dealt with. We need to make sure that Ofcom has the powers to tackle those offences and that it can do so in a way that meets Parliament’s and the public’s expectations of us having legislated to make things better.

I am really asking my noble friend the Minister, when he comes to respond on this, to give us a sense of clarity on the whole question of enforcement. At the moment, it is insufficiently clear. Even if we do not get that level of clarity today, when we come back later on and look at enforcement, it is really important that we know what we are trying to tackle here.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 9th May 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, this group of amendments looks at the treatment of legal content accessed by adults. The very fact that Parliament feels that legislation has a place in policing access to legal material is itself worrying. This door was opened by the Government in the initial draft Bill, but, as we have already heard, after a widespread civil liberties backlash against the legal but harmful clauses, we are left with Clause 65. As has been mentioned, I am worried that this clause, and some of the amendments, might well bring back legal but harmful for adults by the back door. One of the weasel words here is “harmful”. As I have indicated before, it is difficult to work out from the groupings when to raise which bit, so I am keeping that for your Lordships until later and will just note that I am rather nervous about the weasel word “harmful”.

Like many of us, I cheered at the removal of the legal but harmful provisions, but I have serious reservations about their replacement with further duties via terms of service, which imposes a duty on category 1 services to have systems and processes in place to take down or restrict access to content, and to ban or suspend users in accordance with terms of service, as the noble Lord, Lord Moylan, explained. It is one of the reasons I support his amendment. It seems to me to be the state outsourcing the grubby job of censorship to private multinational companies with little regard for UK law.

I put my name to Amendment 155 in the name of the noble Lord, Lord Moylan, because I wanted to probe the Government’s attitude to companies’ terms of service. Platforms have no obligation to align their terms of service with freedom of expression under UK law. It is up to them. I am not trying to impose on them what they do with their service users. If a particular platform wishes to say, “We don’t want these types of views on our platform”, fine, that is its choice. But when major platforms’ terms of service, which are extensive, become the basis on which UK law enforces speech, I get nervous. State regulators are to be given the role of ensuring that all types of lawful speech are suppressed online, because the duty applies to all terms of service, whatever they are, regarding the platforms’ policies on speech suppression, censorship, user suspension, bans and so on. This duty is not restricted to so-called harmful content; it is whatever content the platform wishes to censor.

What is more, Clause 65 asks Ofcom to ensure that individuals who express lawful speech are suspended or banned from platforms if in breach of the platforms’ Ts & Cs, and that means limiting those individuals from expressing themselves more widely, beyond the specific speech in question. That is a huge green light to interfere in UK citizens’ freedom of expression, in my opinion.

I stress that I am not interested in interfering in the terms and conditions of private companies, although your Lordships will see later that I have an amendment demanding that they introduce free-speech clauses. That is because of the way we seem to be enacting the law via the terms of service of private companies. They should of course be free to dictate their own terms of service, and it is reasonable that members of the public should know what they are and expect them to be upheld. But that does not justify the transformation of these private agreements into statutory duties—that is my concern.

So, why are we allowing this Bill to ask companies to enforce censorship policies in the virtual public square that do not exist in UK law? When companies’ terms of service permit the suppression of speech, that is up to them, but when they supress speech far beyond the limitations of speech in UK law and are forced to do so by a government regulator such as Ofcom, are we not in trouble? It means that corporate terms of service, which are designed to protect platforms’ business interests, are trumping case law on free speech that has evolved over many years.

Those terms of service are also frequently in flux, according to fashion or ownership; one only has to look at the endless arguments, which I have yet to understand, about Twitter’s changing terms of service after the Elon Musk takeover. Is Ofcom’s job to follow Elon Musk’s ever-changing terms of service and enforce them on the British public as if they are law?

The terms and conditions are therefore no longer simply a contract between a company and the user; their being brought under statute means that big tech will be exercising public law functions, with Ofcom as the enforcer, ensuring that lawful speech is suppressed constantly, in line with private companies’ terms of service. This is an utter mess and not in any way adequate to protect free speech. It is a fudge by the Government: they were unpopular on “lawful but harmful”, so they have outsourced it to someone else to do the dirty work.

[Lord Clement-Jones (LD)]

My Lords, it has been interesting to hear so many noble Lords singing from the same hymn sheet—especially after this weekend. My noble friend Lord McNally opened this group by giving us his wise perspective on the regulation of new technology. Back in 2003, as he mentioned, the internet was not even mentioned in the Communications Act. He explained how regulation struggles to keep up and how quantum leaps come with a potential social cost; all that describes the importance of risk assessment of these novel technologies.

As we have heard from many noble Lords today, on Report in the Commons the Government decided to remove the adult safety duties—the so-called “legal but harmful” aspect of the Bill. I agree with the many noble Lords who have said that this has significantly weakened the protection for adults under the Bill, and I share the scepticism many expressed about the triple shield.

Right across the board, this group of amendments, with one or two exceptions, rightly aims to strengthen the terms of service and user empowerment duties in the Bill in order to provide a greater baseline of protection for adults, without impinging on others’ freedom of speech, and to reintroduce some risk-assessment requirement on companies. The new duties will clearly make the largest and riskiest companies expend more effort on enforcing their terms of service for UK users. However, the Government have not yet presented any modelling on what effect this will have on companies’ terms of service. I have some sympathy with what the noble Lord, Lord Moylan, said: the new duties could mean that terms of service become much longer and lawyered. This might have an adverse effect on freedom of expression, leading to the use of excessive takedown measures rather than looking at other more systemic interventions to control content such as service design. We heard much the same argument from the noble Baroness, Lady Fox. They both made a very good case for some of the amendments I will be speaking to this afternoon.

On the other hand, companies that choose to do nothing will have an easier life under this regime. Faced with stringent application of the duties, companies might make their terms of service shorter, cutting out harms that are hard to deal with because of the risk of being hit with enforcement measures if they do not. Therefore, far from strengthening protections via this component of the triple shield, the Bill risks weakening them, with particular risks for vulnerable adults. As a result, I strongly support Amendments 33B and 43ZA, which my noble friend Lord McNally spoke to last week at the beginning of the debate on this group.

Like the noble Baroness, Lady Kidron, I strongly support Amendments 154, 218 and 160, tabled by the noble Lord, Lord Stevenson, which would require regulated services to maintain “adequate and appropriate” terms of service, including provisions covering the matters listed in Clause 12. Amendment 44, tabled by the right reverend Prelate the Bishop of Oxford and me, inserts a requirement that services to which the user empowerment duties apply

“must make a suitable and sufficient assessment of the extent to which they have carried out the duties in this section including in each assessment material changes from the previous assessment such as new or removed user empowerment features”.

The noble Viscount, Lord Colville, spoke very well to that amendment, as did the noble Baronesses, Lady Fraser and Lady Kidron.

Amendment 158, also tabled by me and the right reverend Prelate, inserts a requirement that services

“must carry out a suitable and sufficient assessment of the extent to which they have carried out the duties under sections 64 and 65 ensuring that assessment reflects any material changes to terms of service”.

That is a very good way of meeting some of the objections that we have heard to Clause 65 today.

These two amendments focus on risk assessment because the new duties do not have an assessment regime to work out whether they work, unlike the illegal content and children’s duties, as we have heard. Risk assessments are vital to understanding the environment in which the services are operating. A risk assessment can reduce bureaucracy by allowing companies to rule out risks which are not relevant to them, and it can increase user safety by revealing new risks and future-proofing a regime.

The Government have not yet provided, in the Commons or in meetings with Ministers, any proper explanation of why risk assessment duties have been removed along with the previous adult safety duties, and they have not explained in detail why undertaking a risk assessment is in any way a threat to free speech. They are currently expecting adults to manage their own risks, without giving them the information they need to do so. Depriving users of basic information about the nature of harms on a service prevents them taking informed decisions as to whether they want to be on it at all.

Without these amendments, the Bill cannot be said to be a complete risk management regime. There will be no requirement to explain to Ofcom or to users of a company’s service the true nature of the harms that occur on its service, nor the rationale behind the decisions made in these two fundamental parts of the service. This is a real weakness in the Bill, and I very much hope that the Minister will listen to the arguments being made this afternoon.

[Baroness Merron (Lab)]

My Lords, I thank noble Lords from all sides of the House for their contributions and for shining a light on the point the noble Lord, Lord Clement-Jones, made near the end of his remarks about the need to equip adults with the tools to protect themselves.

It is helpful to have these amendments, because they give the Minister the opportunity to accept—as I hope he will—a number of the points raised. It seems a long time since the noble Lord, Lord McNally, introduced this group, but clearly it has given us all much time to reflect. I am sure we will see the benefits of that in the response from the Minister. Much of the debate on the Bill has focused on child safety and general practicalities, but this group helpfully allows us to focus on adults and the operation of the Government’s replacement for the legal but harmful section of the Bill. As the noble Baroness, Lady Fraser, rightly said, perhaps some tightening up of the legislation before us would be helpful. These amendments give us that chance.

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

I am very grateful to the noble Lords who have spoken on the amendments in this group, both this afternoon and last Tuesday evening. As this is a continuation of that debate, I think my noble friend Lord Moylan is technically correct still to wish the noble Baroness, Lady Kidron, a happy birthday, at least in procedural terms.

We have had a very valuable debate over both days on the Bill’s approach to holding platforms accountable to their users. Amendments 33B, 41A, 43ZA, 138A and 194A in the names of the noble Lords, Lord Lipsey and Lord McNally, and Amendment 154 in the name of the noble Lord, Lord Stevenson of Balmacara, seek to bring back the concept of legal but harmful content and related adult risk assessments. They reintroduce obligations for companies to consider the risk of harm associated with legal content accessed by adults. As noble Lords have noted, the provisions in the Bill to this effect were removed in another place, after careful consideration, to protect freedom of expression online. In particular, the Government listened to concerns that the previous legal but harmful provisions could create incentives for companies to remove legal content from their services.

In place of adult risk assessments, we introduced new duties on category 1 services to enable users themselves to understand how these platforms treat different types of content, as set out in Clauses 64 and 65. In particular, this will allow Ofcom to hold them to account when they do not follow through on their promises regarding content they say that they prohibit or to which they say that they restrict access. Major platforms already prohibit much of the content listed in Clause 12, but these terms of service are often opaque and not consistently enforced. The Bill will address and change that.

I would also like to respond to concerns raised through Amendments 41A and 43ZA, which seek to ensure that the user empowerment categories cover the most harmful categories of content to adults. I reassure noble Lords that the user empowerment list reflects input from a wide range of interested parties about the areas of greatest concern to users. Platforms already have strong commercial incentives to tackle harmful content. The major technology companies already prohibit most types of harmful and abusive content. It is clear that most users do not want to see that sort of content and most advertisers do not want their products advertised alongside it. Clause 12 sets out that providers must offer user empowerment tools with a specified list of content to the extent that it is proportionate to do so. This will be based on the size or capacity of the service as well as the likelihood that adult users will encounter the listed content. Providers will therefore need internally to assess the likelihood that users will encounter the content. If Ofcom disagrees with the assessment that a provider has made, it will have the ability to request information from providers for the purpose of assessing compliance.

Amendments 44 and 158, tabled by the right reverend Prelate the Bishop of Oxford, seek to place new duties on providers of category 1 services to produce an assessment of their compliance with the transparency, accountability, freedom of expression and user empowerment duties as set out in Clauses 12, 64 and 65 and to share their assessments with Ofcom. I am sympathetic to the aim of ensuring that Ofcom can effectively assess companies’ compliance with these duties. But these amendments would enable providers to mark their own homework when it comes to their compliance with the duties in question. The Bill has been designed to ensure that Ofcom has responsibility for assessing compliance and that it can obtain sufficient information from all regulated services to make judgments about compliance with their duties. The noble Baroness, Lady Kidron, asked about this—and I think the noble Lord, Lord Clement-Jones, is about to.

[Lord Clement-Jones (LD)]

I hope the Minister will forgive me for interrupting, but would it not be much easier for Ofcom to assess compliance if a risk assessment had been carried out?

[Lord Parkinson of Whitley Bay (Con)]

I will come on to say a bit more about how Ofcom goes about that work.

The Bill will ensure that providers have the information they need to understand whether they are in compliance with their duties under the Bill. Ofcom will set out how providers can comply in codes of practice and guidance that it publishes. That information will help providers to comply, although they can take alternative action if they wish to do so.

The right reverend Prelate’s amendments also seek to provide greater transparency to Ofcom. The Bill’s existing duties already account for this. Indeed, the transparency reporting duties set out in Schedule 8 already enable Ofcom to require category 1, 2A and 2B services to publish annual transparency reports with relevant information, including about the effectiveness of the user empowerment tools, as well as detailed information about any content that platforms prohibit or restrict, and the application of their terms of service.

Amendments 159, 160 and 218, tabled by the noble Lord, Lord Stevenson, seek to require user-to-user services to create and abide by minimum terms of service recommended by Ofcom. The Bill already sets detailed and binding requirements on companies to achieve certain outcomes. Ofcom will set out more detail in codes of practice about the steps providers can take to comply with their safety duties. Platforms’ terms of service will need to provide information to users about how they are protecting users from illegal content, and children from harmful content.

These duties, and Ofcom’s codes of practice, ensure that providers take action to protect users from illegal content and content that is harmful to children. As such, an additional duty to have adequate and appropriate terms of service, as envisaged in the amendments, is not necessary and may undermine the illegal and child safety duties.

I have previously set out why we do not agree with requiring platforms to set terms of service for legal content. In addition, it would be inappropriate to delegate this much power to Ofcom, which would in effect be able to decide what legal content adult users can and cannot see.

Amendment 155, tabled by my noble friend Lord Moylan, seeks to clarify whether and how the Bill makes the terms of service of foreign-run platforms enforceable by Ofcom. Platforms’ duties under Clause 65 apply only to the design, operation and use of the service in the United Kingdom and to UK users, as set out in Clause 65(11). Parts or versions of the service which are used in foreign jurisdictions—

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[Baroness Harding of Winscombe (Con)]

My Lords, I had not intended to speak in this debate because I now need to declare an unusual interest, in that Amendment 38A has been widely supported outside this Chamber by my husband, the Member of Parliament for Weston-super-Mare. I am not intending to speak on that amendment but, none the less, I mention it just in case.

I rise to speak because I have been so moved by the speeches, not least the right reverend Prelate’s speech. I would like just to briefly address the “default on” amendments and add my support. Like others, on balance I favour the amendments in the name of the noble Lord, Lord Clement-Jones, but would willingly throw my support behind my noble friend Lady Morgan were that the preferred choice in the Chamber.

I would like to simply add two additional reasons why I ask my noble friend the Minister to really reflect hard on this debate. The first is that children become teenagers, who become young adults, and it is a gradual transition—goodness, do I feel it as the mother of a 16 year-old and a 17 year-old. The idea that on one day all the protections just disappear completely and we require our 18 year-olds to immediately reconfigure their use of all digital tools just does not seem a sensible transition to adulthood to me, whereas the ability to switch off user empowerment tools as you mature as an adult seems a very sensible transition.

Secondly, I respect very much the free speech arguments that the noble Baroness, Lady Fox, made but I do not think this is a debate about the importance of free speech. It is actually about how effective the user empowerment tools are. If they are so hard for non-vulnerable adults to turn off, what hope have vulnerable adults to be able to turn them on? For the triple shield to work and the three-legged stool to be effective, the onus needs to be on the tech companies to make these user empowerment tools really easy to turn on and turn off. Then “default on” is not a restriction on freedom of speech at all; it is simply a means of protecting our most vulnerable.

[Lord Clement-Jones (LD)]

My Lords, this has been a very thoughtful and thought-provoking debate. I start very much from the point of view expressed by the noble Baroness, Lady Kidron, and this brings the noble Baroness, Lady Buscombe, into agreement—it is not about the content; this is about features. The noble Baroness, Lady Harding, made exactly the same point, as did the noble Baroness, Lady Healy—this is not about restriction on freedom of speech but about a design feature in the Bill which is of crucial importance.

When I was putting together the two amendments that I have tabled, I was very much taken by what Parent Zone said in a recent paper. It described user empowerment tools as “a false hope”, and rightly had a number of concerns about undue reliance on tools. It said:

“There is a real danger of users being overwhelmed and bewildered”.


It goes on to say that

“tools cannot do all the work, because so many other factors are in play—parental styles, media literacy and technological confidence, different levels of vulnerability and, crucially, trust”.

The real question—this is why I thought we should look at it from the other side of things in terms of default—is about how we mandate the use of these user empowerment tools in the Bill for both children and adults. In a sense, my concerns are exactly the opposite of those of the noble Baroness, Lady Fox—for some strange, unaccountable reason.

The noble Baroness, Lady Morgan, the noble Lord, Lord Griffiths, the right reverend Prelate and, notably, my noble friend Lady Parminter have made a brilliant case for their amendment, and it is notable that these amendments are supported by a massive range of organisations. They are all in this area of vulnerable adults: the Mental Health Foundation, Mind, the eating disorder charity Beat, the Royal College of Psychiatrists, the British Psychological Society, Rethink Mental Illness, Mental Health UK, and so on. It is not a coincidence that all these organisations are discussing this “feature”. This is a crucial aspect of the Bill.

Again, I was very much taken by some of the descriptions used by noble Lords during the debate. The right reverend Prelate the Bishop of Oxford said that young people do not suddenly become impervious to content when they reach 18, and he particularly described the pressures as the use of AI only increases. I thought the way the noble Baroness, Lady Harding, described the progression from teenagehood to adulthood was extremely important. There is not some sort of point where somebody suddenly reaches the age of 18 and has full adulthood which enables then to deal with all this content.

Under the Bill as it stands, adult users could still see and be served some of the most dangerous content online. As we have heard, this includes pro-suicide, pro-anorexia and pro-bulimia content. One has only to listen to what my noble friend Lady Parminter had to say to really be affected by the operation, if you like, of social media in those circumstances. This is all about the vulnerable. Of course, we know that anorexia has the highest mortality rate of any mental health problem; the NHS is struggling to provide specialist treatment to those who need it. Meanwhile, suicide and self-harm-related content remains common and is repeatedly implicated in deaths. All Members here who were members of the Joint Committee remember the evidence of Ian Russell about his daughter Molly. I think that affected us all hugely.

We believe now you can pay your money and take your choice of whichever amendment seems appropriate. Changing the user empowerment provisions to require category 1 providers to have either the safest options as default for users or the terms of my two amendments is surely a straightforward way of protecting the vast majority of internet users who do not want this material served to them.

You could argue that the new offence of encouragement to serious self-harm, which the Government have committed to introducing, might form part of the solution here, but you cannot criminalise all the legal content that treads the line between glorification and outright encouragement. Of course, we know the way the Bill has been changed. No similar power is proposed, for instance, to address eating disorder content.

The noble Baroness, Lady Healy, quoted our own Communications and Digital Committee and its recommendations about a comprehensive toolkit of settings overseen by Ofcom, allowing users to decide what types of content they see and from whom. I am very supportive of Amendment 38A from the noble Lord, Lord Knight, which gives a greater degree of granularity about the kind of user, in a sense, that can communicate to users.

Modesty means that of course I prefer my own amendments and I agree with the noble Baronesses, Lady Fraser, Lady Bull and Lady Harding, and I am very grateful for their support. But we are all heading in the same direction. We are all arguing for a broader “by default” approach. The onus should not be on these vulnerable adults in particular to switch them on, as the noble Baroness, Lady Bull, said. It is all about those vulnerable adults and we must, as my noble friend Lady Burt, said, have their best interests at heart, and that is why we have tabled these amendments.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

That is right. Platforms are not in the public sector, so the public sector equality duty does not apply to them. However, that duty applies to Ofcom, taking into account the ways in which people with certain characteristics can be affected through the codes of practice and the user empowerment duties that it is enforcing. So it suffuses the thinking there, but the duty is on Ofcom as a public sector body.

We talk later in Clause 12(11) of some of the characteristics that are similar in approach to the protected characteristics in the Equality Act 2010. I will come to that again shortly in response to points made by noble Lords.

I want to say a bit about the idea of there being a cliff edge at the age of 18. This was raised by a number of noble Lords, including the noble Lord, Lord Griffiths, my noble friends Lady Morgan and Lady Harding and the noble Baroness, Lady Kidron. The Bill’s protections recognise that, in law, people become adults when they turn 18—but it is not right to say that there are no protections for young adults. As noble Lords know, the Bill will provide a triple shield of protection, of which the user empowerment duties are the final element.

The Bill already protects young adults from illegal content and content that is prohibited in terms and conditions. As we discussed in the last group, platforms have strong commercial incentives to prohibit content that the majority of their users do not want to see. Our terms of service duties will make sure that they are transparent about and accountable for how they treat this type of content.

[Lord Clement-Jones (LD)]

My Lords, what distinguishes young adults from older adults in what the Minister in saying?

[Lord Parkinson of Whitley Bay (Con)]

In law, there is nothing. I am engaging with the point that there is no cliff edge. There are protections for people once they turn 18. People’s tastes and risk appetites may change over time, but there are protections in the Bill for people of all ages.

[Lord Clement-Jones (LD)]

Surely, this is precisely the point that the noble Baroness, Lady Kidron, was making. As soon as you reach 18, there is no graduation at all. There is no accounting for vulnerable adults.

[Lord Parkinson of Whitley Bay (Con)]

There is not this cliff edge which noble Lords have feared—that there are protections for children and then, at 18, a free for all. There are protections for adult users—young adults, older adults, adults of any age—through the means which I have just set out: namely, the triple shield and the illegal content provisions. I may have confused the noble Lord in my attempt to address the point. The protections are there.

[Lord Clement-Jones (LD)]

There is an element of circularity to what the Minister is saying. This is precisely why we are arguing for the default option. It allows this vulnerability to be taken account of.

[Lord Knight of Weymouth (Lab)]

Perhaps it would help if the Minister wanted to just set out the difference for us. Clearly, this Committee has spent some time debating the protection for children, which has a higher bar than protection for adults. It is not possible to argue that there will be no difference at the age of 18, however effective the first two elements of the triple shield are. Maybe the Minister needs to think about coming at it from the point of view of a child becoming an adult, and talk us through what the difference will be.

[Lord Knight of Weymouth (Lab)]

I understand all of that—I think—but that is not the regime being applied to children. It is really clear that children have a safer, better experience. The difference between those experiences suddenly happening on an 18th birthday is what we are concerned about.

[Lord Clement-Jones (LD)]

Before the Minister stands up—a new phrase—can he confirm that it is perfectly valid to have a choice to lift the user empowerment tool, just as it is to impose it? Choice would still be there if our amendments were accepted.

[Lord Parkinson of Whitley Bay (Con)]

It would be, but we fear the chilling effect of having the choice imposed on people. As the noble Baroness, Lady Fox, rightly put it, one does not know what one has not encountered until one has engaged with the idea. At the age of 18, people are given the choice to decide what they encounter online. They are given the tools to ensure that they do not encounter it if they do not wish to do so. As the noble Lord has heard me say many times, the strongest protections in the Bill are for children. We have been very clear that the Bill has extra protections for people under the age of 18, and it preserves choice and freedom of expression online for adult users—young and old adults.

My noble friend Lady Buscombe asked about the list in Clause 12(11). We will keep it under constant review and may consider updating it should compelling evidence emerge. As the list covers content that is legal and designed for adults, it is right that it should be updated by primary legislation after a period of parliamentary scrutiny.

Amendments 42 and 38A, tabled by the noble Lords, Lord Stevenson of Balmacara and Lord Knight of Weymouth, respectively, seek to change the scope of user empowerment content features. Amendment 38A seeks to expand the user empowerment content features to include the restriction of content the provenance of which cannot be authenticated. Amendment 42 would apply features to content that is abusive on the basis of characteristics protected under the Equality Act 2010.

The user empowerment content list reflects areas where there is the greatest need for users to be offered choice about reducing their exposure to types of content. While I am sympathetic to the intention behind the amendments, I fear they risk unintended consequences for users’ rights online. The Government’s approach recognises the importance of having clear, enforceable and technically feasible duties that do not infringe users’ rights to free expression. These amendments risk undermining this. For instance, Amendment 38A would require the authentication of the provenance of every piece of content present on a service. This could have severe implications for freedom of expression, given its all-encompassing scope. Companies may choose not to have anything at all.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 9th May 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the speech of the noble Baroness, Lady Buscombe, raised so many of the challenges that people face online, and I am sure that the masses who are watching parliamentlive as we speak, even if they are not in here, will recognise what she was talking about. Certainly, some of the animal rights activists can be a scourge, but I would not want to confine this to them, because I think trashing reputations online and false allegations have become the activists’ chosen weapon these days. One way that I describe cancel culture, as distinct from no-platforming, is that it takes the form of some terrible things being said about people online, a lot of trolling, things going viral and using the online world to lobby employers to get people sacked, and so on. It is a familiar story, and it can be incredibly unpleasant. The noble Baroness and those she described have my sympathy, but I disagree with her remedy.

An interesting thing is that a lot of those activities are not carried out by those who are anonymous. It is striking that a huge number of people with large accounts, well-known public figures with hundreds of thousands of followers—sometimes with more than a million—are prepared to do exactly what I described in plain sight, often to me. I have thought long and hard about this, because I really wanted to use this opportunity to read out a list and name and shame them, but I have decided that, when they go low, I will try to go at least a little higher. But subtweeting and twitchhunts are an issue, and one reason why we think we need an online harms Bill. As I said, I know that sometimes it can feel that if people are anonymous, they will say things that they would not say to your face or if you knew who they were, but I think it is more the distance of being online: even when you know who they are, they will say it to you or about you online, and then when you see them at the drinks reception, they scuttle away.

My main objection, however, to the amendment of the noble Baroness, Lady Buscombe, and the whole question of anonymity in general is that it treats anonymity as though it is inherently unsafe. There is a worry, more broadly on verification, about creating two tiers of users: those who are willing to be verified and those who are not, and those who are not somehow having a cloud of suspicion over them. There is a danger that undermining online anonymity in the UK could set a terrible precedent, likely to be emulated by authoritarian Governments in other jurisdictions, and that is something we must bear in mind.

On evidence, I was interested in Big Brother Watch’s report on some analysis by the New Statesman, which showed that there is little evidence to suggest that anonymity itself makes online discourse more febrile. It did an assessment involving tweets sent to parliamentarians since January 2021, and said there was

“little discernible difference in the nature or tone of the tweets that MPs received from anonymous or non-anonymous accounts. While 32 per cent of tweets from anonymous accounts were classed as angry according to the metric used by the New Statesman, so too were 30 per cent of tweets from accounts with full names attached.18 Similarly, 5.6 per cent of tweets from anonymous accounts included swear words, only slightly higher than the figure of 5.3 per cent for named accounts.”

It went through various metrics, but it said, “slightly higher, not much of a difference”. That is to be borne in mind: the evidence is not there.

In this whole debate, I have wanted to emphasise freedom as at least equal to, if not of greater value than, the safetyism of this Bill, but in this instance, I will say that, as the noble Baroness, Lady Bull, said, for some people anonymity is an important safety mechanism. It is a tool in the armoury of those who want to fight the powerful. It can be anyone: for young people experimenting with their sexuality and not out, it gives them the freedom to explore that. It can be, as was mentioned, survivors of sexual violence or domestic abuse. It is certainly crucial to the work of journalists, civil liberties activists and whistleblowers in the UK and around the world. Many of the Iranian women’s accounts are anonymous: they are not using their correct names. The same is true of Hong Kong activists; I could go on.

Anyway, in our concerns about the Bill, compulsory identity verification means being forced to share personal data, so there is a privacy issue for everyone, not just the heroic civil liberties people. In a way, it is your own business why you are anonymous—that is the point I am trying to make.

There are so many toxic issues at the moment that a lot of people cannot just come out. I know I often mention the gender-critical issue, but it is true that in many professions, you cannot give your real name or you will not just be socially ostracised but potentially jeopardise your career. I wrote an article during the 2016-17 days called Meet the Secret Brexiteers. It was true that many teachers and professors I knew who voted to leave had to be anonymous online or they would not have survived the cull.

Finally, I do not think that online anonymity or pseudonymity is a barrier to tracking down and prosecuting those who commit the kind of criminal activity on the internet described, creating some of the issues we are facing. Police reports show that between 2017-18, 96% of attempts by public authorities to identify anonymous users of social media accounts, their email addresses and telephone numbers, resulted in successful identification of the suspect in the investigation; in other words, the police already have a range of intrusive powers to track down individuals, should there be a criminal problem, and the Investigatory Powers Act 2016 allows the police to acquire communications data—for example, email addresses or the location of a device—from which alleged illegal anonymous activity is conducted and use it as evidence in court.

If it is not illegal but just unpleasant, I am afraid that is the world we live in. I would argue that what we require in febrile times such as these is not bans or setting the police on people but to set the example of civil discourse, have more speech and show that free speech is a way of conducting disagreement and argument without trashing reputations.

[Lord Clement-Jones (LD)]

My Lords, what an unusually reticent group we have here for this group of amendments. I had never thought of the noble Baroness, Lady Fox, as being like Don Quixote, but she certainly seems to be tilting at windmills tonight.

I go back to the Joint Committee report, because what we said there is relevant. We said:

“Anonymous abuse online is a serious area of concern that the Bill needs to do more to address. The core safety objectives apply to anonymous accounts as much as identifiable ones. At the same time, anonymity and pseudonymity are crucial to online safety for marginalised groups, for whistleblowers, and for victims of domestic abuse and other forms of offline violence. Anonymity and pseudonymity themselves are not the problem and ending them would not be a proportionate response”.


We were very clear; the Government’s response on this was pretty clear too.

We said:

“The problems are a lack of traceability by law enforcement, the frictionless creation and disposal of accounts at scale, a lack of user control over the types of accounts they engage with and a failure of online platforms to deal comprehensively with abuse on their platforms”.


We said there should be:

“A requirement for the largest and highest risk platforms to offer the choice of verified or unverified status and user options on how they interact with accounts in either category”.


Crucially for these amendments, we said:

“We recommend that the Code of Practice also sets out clear minimum standards to ensure identification processes used for verification protect people’s privacy—including from repressive regimes or those that outlaw homosexuality”.


We were very clear about the difference between stripping away anonymity and ensuring that verification was available where the user wanted to engage only with those who had verified themselves. Requiring platforms to allow users—

[Baroness Buscombe (Con)]

I am sorry to interrupt the noble Lord, but I would like to ask him whether, when the Joint Committee was having its deliberations, it ever considered, in addition to people’s feelings and hurt, their livelihoods.

[Lord Clement-Jones (LD)]

Of course. I think we looked at it in the round and thought that stripping away anonymity could in many circumstances be detrimental to those, for instance, working in hostile regimes or regimes where human rights were under risk. We considered a whole range of things, and the whole question about whether you should allow anonymity is subject to those kinds of human rights considerations.

I take the noble Baroness’s point about business, but you have to weigh up these issues, and we came around the other side.

[Baroness Buscombe (Con)]

Does the noble Lord not think that many people watching and listening to this will be thinking, “So people in far-off regimes are far more important than I am—I who live, work and strive in this country”? That is an issue that I think was lacking through the whole process and the several years that this Bill has been discussed. Beyond being hurt, people are losing their livelihoods.

[Lord Clement-Jones (LD)]

I entirely understand what the noble Baroness is saying, and I know that she feels particularly strongly about these issues given her experiences. The whole Bill is about trying to weigh up different aspects—we are on day 5 now, and this has been very much the tenor of what we are trying to talk about in terms of balance.

[Baroness Kidron (CB)]

I want to reassure the noble Baroness that we did discuss anonymity in relation to the issues that she has put forward. A company should not be able to use anonymity as an excuse not to deal with the situation, and that is slightly different from simply saying, “We throw our hands up on those issues”.

There was a difference between the fact that companies are using anonymity to say, “We don’t know who it is, and therefore we can’t deal with it”, and the idea that they should take action against people who are abusing the system and the terms of service. It is subtle, but it is very meaningful in relation to what the noble Baroness is suggesting.

[Lord Clement-Jones (LD)]

That is a very fair description. We have tried to emphasise throughout the discussion on the Bill that it is about not just content but how the system and algorithms work in terms of amplification. In page 35 of our report, we try to address some of those issues—it is not central to the point about anonymity, but we certainly talked about the way that messages are driven by the algorithm. Obviously, how that operates in practice and how the Bill as drafted operates is what we are kicking the tyres on at the moment, and the noble Baroness is absolutely right to do that.

The Government’s response was reasonably satisfactory, but this is exactly why this group explores the definition of verification and so on, and tries to set standards for verification, because we believe that there is a gap in all this. I understand that this is not central to the noble Baroness’s case, but—believe me—the discussion of anonymity was one of the most difficult issues that we discussed in the Joint Committee, and you have to fall somewhere in that discussion.

Requiring platforms to allow users to see other users’ verification status is a crucial further pillar to user empowerment, and it provides users with a key piece of information about other users. Being able to see whether an account is verified would empower victims of online abuse or threats—I think this partly answers the noble Baroness’s question—to make more informed judgments about the source of the problem, and therefore take more effective steps to protect themselves. Making verification status visible to all users puts more choice in their hands as to how they manage the higher risks associated with non-verified and anonymous accounts, and offers them a lighter-touch alternative to filtering out all non-verified users entirely.

We on these Benches support the amendments that have been put forward. Amendment 141 aims to ensure that a user verification duty delivers in the way that the public and Government hope it will—by giving Ofcom a clear remit to require that the verification systems that platforms are required to develop in response to the duty are sufficiently rigorous and accessible to all users.

I was taken by what the noble Baroness, Lady Bull, said, particularly the case for Ofcom’s duties as regards those with disabilities. We need Ofcom to be tasked with setting out the principles and minimum standards, because otherwise platforms will try to claim, as verification, systems that do not genuinely verify a user’s identity, are unaffordable to ordinary users or use their data inappropriately.

Likewise, we support Amendment 303, which would introduce a definition of “user identity verification” into the Bill to ensure that we are all on the same page. In Committee in the House of Commons, Ministers suggested that “user identity verification” is an everyday term so does not need a definition. This amendment, which no doubt the noble Baroness, Lady Merron, will speak to in more detail, is bang on point as far as that is concerned. That was not a convincing answer, and that is why this amendment is particularly apt.

I heard what the noble Baroness, Lady Buscombe, had to say, but in many ways the amendment in the previous group in the name of the noble Lord, Lord Knight, met some of the noble Baroness’s concerns. As regards the amendment in the name of the noble Lord, Lord Moylan, we are all Wikipedia fans, so we all want to make sure that there is no barrier to Wikipedia operating successfully. I wonder whether perhaps the noble Lord is making quite a lot out of the Wikipedia experience, but I am sure the Minister will enlighten us all and will have a spot-on response for him.

[Baroness Merron (Lab)]

My Lords, I am pleased to speak on this group of amendments, and I will particularly address the amendments in the name of my noble friend Lord Stevenson. To start with the very positive, I am very grateful to the Minister for signing Amendment 40 —as has already been commented, this is hopefully a sign of things to come. My observation is that it is something of a rarity, and I am containing my excitement as it was agreement over one word, “effectively”. Nevertheless, it is very welcome support.

These amendments aim to make it clearer to users whether those whom they interact with are verified or non-verified, with new duties backed up by a set of minimum standards, to be reflected in Ofcom’s future guidance on the user verification duty, with standards covering—among other things—privacy and data protection. The noble Lord, Lord Clement-Jones, helpfully referred your Lordships’ House to the report of the Joint Committee and spent some useful time on the challenges over anonymity. As is the case with so many issues on other Bills and particularly on this one, there is a balance to be struck. Given the proliferation of bots and fake profiles, we must contemplate how to give confidence to people that they are interacting with real users.

Amendment 141 tabled by my noble friend Lord Stevenson and supported by the noble Lord, Lord Clement- Jones, requires Ofcom to set a framework of principles and minimum standards for the user verification duty. The user verification duty is one of the most popular changes to be made to the Bill following the pre-legislative scrutiny process and reflects a recommendation of the Joint Committee. Why is it popular? Because the public understand that the current unregulated approach by social media platforms is a major enabler of harmful online behaviour. Anonymous accounts are more likely to engage in abuse or harassment and, for those at the receiving end, threats from anonymous accounts can feel even more frightening, while the chances are lower of any effective enforcement from the police or platforms.

As we know, bad actors use networks of fake accounts to peddle disinformation and divisive conspiracy theories. I am sure that we will come back to this in later groups. This amendment aims to ensure that the user verification duty delivers in the way that the public and the Government hope that it will. It requires that the systems which platforms develop in response to the duty are sufficiently rigorous and accessible to all users.

The noble Baroness, Lady Kidron, talked about affordability, something that I would like to amplify. There will potentially be platforms which try to claim that verification systems somehow genuinely verify a user’s identity when they do not, or they will be unaffordable to ordinary users, as the noble Baroness said, or data will be used inappropriately. This is not theoretical. She referred to the Meta-verified product, which looks like it might be more rigorous, but at a cost of $180 per year per account, which will not be within the grasp of many people. Twitter is now also selling blue ticks of verification for $8, including a sale to those who are scamming, impersonating, and who are propagandists for figures in our world such as Putin. This amendment future-proofs and allows flexibility. It will not tie the hands of either the regulator or the platforms. Therefore, I hope that it can find some favour with the Minister.

In Amendment 303, again tabled by my noble friend Lord Stevenson and supported by the noble Lord, Lord Clement-Jones, there is an addition of the definition of “user identity verification”. I agree with the noble Lord about how strange it was that, in Committee in the Commons, Ministers felt that user identity verification was somehow an everyday term which did not need definition. I dispute that. It is no better left to common sense than any other terms that we do have definitions for in Clause 207—for example, “age assurance”, “paid-for advertisement” and “terms of service”. All these get definitions. Surely it is very wise to define user identity verification.

--- Later in debate ---

[Baroness Harding of Winscombe (Con)]

My Lords, I too will be very brief. As a member of the Communications and Digital Committee, I just wanted to speak in support of my noble friend Lady Stowell of Beeston and her extremely powerful speech, which seems like it was quite a long time ago now, but it was not that long. I want to highlight two things. I do not understand how, as a number of noble Lords have said, having risk assessments is a threat to freedom of expression. I think the absolute opposite is the case. They would enhance all the things the noble Baroness, Lady Fox, is looking to see in the Bill, just as much as they would enhance the protections that my noble friend, who I always seem to follow in this debate, is looking for.

Like my noble friend, I ask the Minister: why not? When the Government announced the removal of legal but harmful and the creation of user empowerment tools, I remember thinking—in the midst of being quite busy with Covid—“What are user empowerment tools and what are they going to empower me to do?” Without a risk assessment, I do not know how we answer that question. The risk is that we are throwing that question straight to the tech companies to decide for themselves. A risk assessment provides the framework that would enable user empowerment tools to do what I think the Government intend.

Finally, I too will speak against my noble friend Lord Moylan’s Amendment 294 on psychological harm. It is well documented that tech platforms are designed to drive addiction. Addiction can be physiological and psychological. We ignore that at our peril.

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to have been part of this debate and to have heard how much we are on common ground. I very much hope that, in particular, the Minister will have listened to the voices on the Conservative Benches that have very powerfully put forward a number of amendments that I think have gained general acceptance across the Committee.

I fully understand the points that the noble Lord, Lord Black, made and why he defends Clause 14. I hope we can have a more granular discussion about the contents of that clause rather than wrap it up on this group of amendments. I do not know whether we will be able to have that on the next group.

I thank the noble Baroness, Lady Stowell, for putting forward her amendment. It is very interesting, as the noble Baronesses, Lady Bull and Lady Fraser, said, that we are trying to get to the same sort of mechanisms of risk assessment, perhaps out of different motives, but we are broadly along the same lines and want to see them for adult services. We want to know from the Minister why we cannot achieve that, basically. I am sure we could come to some agreement between us as to whether user empowerment tools or terms of service are the most appropriate way of doing it.

We need to thank the committee that the noble Baroness chairs for having followed up on the letter to the Secretary of State for DCMS, as was, on 30 January. It is good to see a Select Committee using its influence to go forward in this way.

The amendments tabled by the noble Lord, Lord Kamall, and supported by my noble friend Lady Featherstone—I am sorry she is unable to be here today, as he said—are important. They would broaden out consideration in exactly the right kind of way.

However, dare I say it, probably the most important amendment in this group is Amendment 48 in the name of the noble Lord, Lord Stevenson. Apart from the Clause 14 stand part notice, it is pretty much bang on where the Joint Committee got to. He was remarkably tactful in not going into any detail on the Government’s response to that committee. I will not read it out because of the lateness of the hour, but the noble Viscount, Lord Colville, got pretty close to puncturing the Government’s case that there is no proper definition of public interest. It is quite clear that there is a perfectly respectable definition in the Human Rights Act 1998 and, as the noble Viscount said, in the Defamation Act 2013, which would be quite fit for purpose. I do not quite know why the Government responded as they did at paragraph 251. I very much hope that the Minister will have another look at that.

The amendment from the noble and learned Lord, Lord Hope, which has the very respectable support of Justice, is also entirely apposite. I very much hope that the Government will take a good look at that.

Finally, and extraordinarily, I have quite a lot of sympathy with the amendments from the noble Lord, Lord Moylan. It was all going so well until we got to Amendment 294; up to that point I think he had support from across the House, because placing that kind of duty on Ofcom would be a positive way forward.

As I say, getting a clause of the kind that the noble Lord, Lord Stevenson, has put forward, with that public interest content point and with an umbrella duty on freedom of expression, allied to the definition from the noble and learned Lord, Lord Hope, would really get us somewhere.

[Lord Stevenson of Balmacara (Lab)]

Lawyers—don’t you love them? How on earth are we supposed to unscramble that at this time of night? It was good to have my kinsman, the noble and learned Lord, Lord Hope, back in our debates. We were remarking only a few days ago that we had not seen enough lawyers in the House in these debates. One appears, and light appears. It is a marvellous experience.

I thank the Committee for listening to my earlier introductory remarks; I hope they helped to untangle some of the issues. The noble Lord, Lord Black, made it clear that the press are happy with what is in the current draft. There could be some changes, and we have heard a number of examples of ways in which one might either top or tail what there is.

There was one question that perhaps he could have come back on, and maybe he will, as I have raised it separately with the department before. I agree with a lot of what he said, but it applies to a lot more than just news publishers. Quality journalism more generally enhances and restores our faith in public services in so many ways. Why is it only the news? Is there a way in which we could broaden that? If there is not this time round, perhaps that is something we need to pick up later.

As the noble Lord, Lord Clement-Jones, has said, the noble Viscount, Lord Colville, made a very strong and clear case for trying to think again about what journalism does in the public realm and making sure that the Bill at least carries that forward, even if it does not deal with some of the issues that he raised.

We have had a number of other good contributions about how to capture some of the good ideas that were flying around in this debate and keep them in the foreground so that the Bill is enhanced. But I think it is time that the Minister gave us his answers.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Thursday 11th May 2023 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, I welcome the amendments the Government have tabled, but I ask the Minister to clarify the effect of Amendment 50E. I declare an interest as chair of the Communications and Digital Select Committee, which has discussed Amendment 50E and the labelling of content for children with the news media organisations. This is a very technical issue, but from what my noble friend was just saying, it seems that content that would qualify for labelling for child protection purposes, and which therefore does not qualify for a right of appeal before the content is so labelled, is not content that would normally be encountered by adults but might happen to appeal to children. I would like to be clear that we are not giving the platforms scope for adding labels to content that they ought not to be adding labels to. That aside, as I say, I am grateful to my noble friend for these amendments.

[Lord Clement-Jones (LD)]

My Lords, like the noble Baroness, Lady Stowell, I have no major objection and support the Government’s amendments. In a sense the Minister got his retaliation in first, because we will have a much more substantial debate on the scope of Clause 14. At this point I welcome any restriction on Clause 14 in the way that the Minister has stated.

Yet to come we have the whole issue of whether an unregulated recognised news publisher, effectively unregulated by the PRP’s arrangements, should be entitled to complete freedom in terms of below-the-line content, where there is no moderation and it does not have what qualifies as independent regulation. Some debates are coming down the track and—just kicking the tyres on the Minister’s amendments—I think the noble Baroness, Lady Stowell, made a fair point, which I hope the Minister will answer.

--- Later in debate ---

[Baroness Healy of Primrose Hill (Lab)]

My Lords, I support Amendment 52, tabled by my noble friend Lady Merron. This is an important issue which must be addressed in the Bill if we are to make real progress in making the internet a safer space, not just for children but for vulnerable adults.

We have the opportunity to learn lessons from the pandemic, where misinformation had a devastating impact, spreading rapidly online like the virus and threatening to undermine the vaccine rollout. If the Government had kept their earlier promise to include protection 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, these amendments would not be necessary.

It is naive to think that platforms will behave responsibly. Currently, they are left to their own devices in how they tackle health misinformation, without appropriate regulatory oversight. They can remove it at scale or leave it completely unchecked, as illustrated by Twitter’s decision to stop enforcing its Covid-19 misinformation policies, as other noble Lords have pointed out.

It is not a question of maintaining free speech, as some might argue. It was the most vulnerable groups who suffered from the spread of misinformation online—pregnant women and the BAME community, who had higher illness rates. Studies have shown that, proportionately, more of them died, not just because they were front-line workers but because of rumours spread in the community which resulted in vaccine hesitancy, with devastating consequences. As other noble Lords have pointed out, in 2021 the Royal College of Obstetricians and Gynaecologists found that only 42% of women who had been offered the vaccine accepted it, and in October that year one in five of the most critically ill Covid patients were unvaccinated, pregnant women. That is a heartbreaking statistic.

Unfortunately, it is not just vaccine fears that are spread on the internet. Other harmful theories can affect patients with cancer, mental health issues and sexual health issues, and, most worryingly, can affect children’s health. Rumours and misinformation play on the minds of the most vulnerable. The Government have a duty to protect people, and by accepting this amendment they would go some way to addressing this.

Platforms must undertake a health misinformation risk assessment and have a clear policy on dealing with harmful, false and misleading health information in their terms of service. They have the money and the expertise to do this, and Parliament must insist. As my noble friend Lady Merron said, I do not think that the Minister can say that the false communications offence in Clause 160 will address the problem, as it covers only a user sending a knowingly false communication with the intention of causing harm. The charity Full Fact has stated that this offence will exclude most health misinformation that it monitors online.

[Lord Clement-Jones (LD)]

My Lords, this has been a very interesting debate. I absolutely agree with what the noble Baroness, Lady Kidron, said right at the beginning of her speech. This was one of the most difficult areas that the Joint Committee had to look at. I am not saying that anything that we said was particularly original. We tried to say that this issue could be partly addressed by greater media literacy, which, no doubt, we will be talking about later today; we talked about transparency of system design, and about better enforcement of service terms and conditions. But things have moved on. Clearly, many of us think that the way that the current Bill is drafted is inadequate. However, the Government did move towards proposing a committee to review misinformation and disinformation. That is welcome, but I believe that these amendments are taking the thinking and actions a step forward.

--- Later in debate ---

[Lord Davies of Brixton (Lab)]

My Lords, I spoke at Second Reading about the relationship between online safety and protecting people’s mental health, a theme that runs throughout the Bill. I have not followed the progress in Committee as diligently as I wish, but this group of amendments has caught the eye of the Mental Health Foundation, which has expressed support. It identified Amendment 188, but I think it is the general principle that it supports. The Mental Health Foundation understands the importance of education, because it asked young people what they thought should be done. It sponsored a crucial inquiry through its organisation YoungMinds, which produced a report earlier this year, Putting a Stop to the Endless Scroll.

One of the three major recommendations that emerged from that report, from the feelings of young people themselves, was the need for better education. It found that young people were frustrated at being presented with outdated information about keeping their details safe. They felt that they needed something far more advanced, more relevant to the online world as it is happening at the moment, on how to avoid the risks from such things as image-editing apps. They needed information on more sophisticated risks that they face, essentially what they described as design risks, where the website is designed to drag you in and make you addicted to these algorithms.

The Bill as a whole is designed to protect children and young people from harm, but it must also, as previous speakers have made clear, provide young people themselves with tools so that they can exercise their own judgment to protect themselves and ensure that they do not fall foul, set on that well-worn path between being engaged on a website and ending up with problems with their mental health. Eating is the classic example: you click on a website about a recipe and, step by step, you get dragged into material designed to harm your health through its effect on your diet.

I very much welcome this group of amendments, what it is trying to achieve and the role that it will have by educating young people to protect themselves, recognising the nature of the internet as it is now, so that they do not run the risks of affecting their mental health.

[Lord Clement-Jones (LD)]

My Lords, this has probably been the most constructive and inspiring debate that we have had on the Bill. In particular, I thank the noble Lord, Lord Knight, for introducing this debate. His passion for this kind of media literacy education absolutely shines through. I thank him for kicking off in such an interesting and constructive way. I am sorry that my noble friend Lord Storey is not here to contribute as well, with his educational background. He likewise has a passion for media literacy education and would otherwise have wanted to contribute to the debate today.

I am delighted that I have found some common ground with the noble Baroness, Lady Fox. The idea of sending my noble friend Lord Allan on tour has great attractions. I am not sure that he would find it quite so attractive. I am looking forward to him coming back before sending him off around the country. I agree that he has made a very constructive contribution. I agree with much of what the noble Baroness said, and the noble Baroness, Lady Prashar, had the same instinct: this is a way of better preserving freedom of speech. If we can have those critical thinking skills so that people can protect themselves from misinformation, disinformation and some of the harms online, we can have greater confidence that people are able to protect themselves against these harms at whatever age they may be.

I was very pleased to hear the references to Lord Puttnam, because I think that the Democracy and Digital Technologies Committee report was ground-breaking in the way it described the need for digital media literacy. This is about equipping not just young people but everybody with the critical thinking skills needed to differentiate fact from fiction—particularly, as we have talked through in Committee, on the way that digital platforms operate through their systems, algorithms and data.

The noble Lord, Lord Holmes, talked about the breadth and depth needed for media and digital literacy education; he had it absolutely right about people being appropriately savvy, and the noble Baroness, Lady Bennett, echoed what he said in that respect.

I think we have some excellent amendments here. If we can distil them into a single amendment in time for Report or a discussion with the Minister, I think we will find ourselves going forward constructively. There are many aspects of this. For instance, the DCMS Select Committee recommended that digital literacy becomes the fourth pillar of education, which seems to me a pretty important aspect alongside reading, writing and maths. That is the kind of age that we are in. I have quoted Parent Zone before. It acknowledges the usefulness of user empowerment tools and so on, but again it stressed the need for media literacy. What kind of media literacy? The noble Baroness, Lady Kidron, was extremely interesting when she said that what is important is not just user behaviour but making the right choices—that sort of critical thinking. The noble Lord, Lord Russell, provided an analogy with preventive health that was very important.

Our Joint Committee used a rather different phrase. It talked about a “whole of government” approach. When we look at all the different aspects, we see that it is something not just for Ofcom—I entirely agree with that—but that should involve a much broader range of stakeholders in government. We know that, out there, there are organisations such as the Good Things Foundation and CILIP, the library association, and I am sorry that the noble Baroness, Lady Lane-Fox, is not in her place to remind us about Doteveryone, an organisation that many of us admire a great deal for the work it carries out.

I think the “appropriately savvy” expression very much applies to the fraud prevention aspect, and it will be interesting when we come to the next group to talk about that as well. The Government have pointed to the DCMS online media strategy, but the noble Lord, Lord Holmes, is absolutely right to ask what its outcome has been, what its results have been, and what resources are being devoted towards it. We are often pointed to that by the Government, here in Committee and at Oral Questions whenever we ask how the media literacy strategy is going, so we need to kick the tyres on that as well as on the kind of priority and resources being devoted to media literacy.

As ever, I shall refer to the Government’s response to the Joint Committee, which I found rather extraordinary. The Government responded to the committee’s recommendation about minimum standards; there is an amendment today about minimum standards. They said:

“Ofcom has recently published a new approach to online media literacy … Clause 103 of the draft Bill”—


the noble Baroness, Lady Prashar, referred to the fact that in the draft Bill there was originally a new duty on Ofcom—

“did not grant Ofcom any additional powers. As such, it is … unnecessary regulation. It has therefore been removed”.

It did add to Ofcom’s duties. Will the Minister say whether he thinks all the amendments here today would constitute unnecessary regulation? As he can see, there is considerable appetite around the Committee for the kind of media literacy duty across the board that we have talked about today. He might make up for some of the disappointment that many of us feel about the Government’s having got rid of that clause by responding to that question.

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[Baroness Kidron (CB)]

My Lords, I shall say very briefly in support of these amendments that in 2017, the 5Rights Foundation, of which I am the chair, published the Digital Childhood report, which in a way was the thing that put the organisation on the map. The report looked at the evolving capacity of children through childhood, what technology they were using, what happened to them and what the impact was. We are about to release the report again, in an updated version, and one of the things that is most striking is the introduction of fraud into children’s lives. At the point at which they are evolving into autonomous people, when they want to buy presents for their friends and parents on their own, they are experiencing what the noble Baroness, Lady Morgan, expressed as embarrassment, loss of trust and a sense of deserting confidence—I think that is probably the phrase. So I just want to put on the record that this is a problem for children also.

[Lord Clement-Jones (LD)]

My Lords, this has been an interesting short debate and the noble Baroness, Lady Morgan, made a very simple proposition. I am very grateful to her for introducing this so clearly and comprehensively. Of course, it is all about the way that platforms will identify illegal, fraudulent advertising and attempt to align it with other user-to-user content in terms of transparency, reporting, user reporting and user complaints. It is a very straightforward proposition.

First of all, however, we should thank the Government for acceding to what the Joint Committee suggested, which was that fraudulent advertising should be brought within the scope of the Bill. But, as ever, we want more. That is what it is all about and it is a very straightforward proposition which I very much hope the Minister will accede to.

We have heard from around the Committee about the growing problem and I will be very interested to read the report that the noble Baroness, Lady Kidron, was talking about, in terms of the introduction of fraud into children’s lives—that is really important. The noble Baroness, Lady Morgan, mentioned some of the statistics from Clean Up the Internet, Action Fraud and so on, as did the noble Viscount, Lord Colville. And, of course, it is now digital. Some 80% of fraud, as he said, is cyber-enabled, and 23% of all reported frauds are initiated on social media—so this is bang in the area of the Bill.

It has been very interesting to see how some of the trade organisations, the ABI and others, have talked about the impact of fraud, including digital fraud. The ABI said:

“Consumers’ confidence is being eroded by the ongoing proliferation of online financial scams, including those predicated on impersonation of financial service providers and facilitated through online advertising. Both the insurance and long-term savings sectors are impacted by financial scams perpetrated via online paid-for advertisements, which can deprive vulnerable consumers of their life savings and leave deep emotional scars”.


So, this is very much a cross-industry concern and very visible to the insurance industry and no doubt to other sectors as well.

I congratulate the noble Baroness, Lady Morgan, on her chairing of the fraud committee and on the way it came to its conclusions and scrutinised the Bill. Paragraphs 559, 560 and 561 all set out where the Bill needs to be aligned to the other content that it covers. As she described, there are two areas where the Bill can be improved. If they are not cured, they will substantially undermine its ability to tackle online fraud effectively.

This has the backing of Which? As the Minister will notice, it is very much a cross-industry and consumer body set of amendments, supporting transparency reporting and making sure that those platforms with more fraudulent advertising make proportionately larger changes to their systems. That is why there is transparency reporting for all illegal harms that platforms are obliged to prevent. There is no reason why advertising should be exempt. On user reporting and complaints, it is currently unclear whether this applies only to illegal user-generated content and unpaid search content or if it also applies to illegal fraudulent advertisements. At the very least, I hope the Minister will clarify that today.

Elsewhere, the Bill requires platforms to allow users to complain if the platform fails to comply with its duties to protect users from illegal content and with regard to the content-reporting process. I very much hope the Minister will accede to including that as well.

Some very simple requests are being made in this group. I very much hope that the Minister will take them on board.

[Lord Stevenson of Balmacara (Lab)]

It is the simple requests that always seem to evade the easy solutions. I will not go back over the very good introductory speech from the noble Baroness, which said it all; the figures are appalling and the range of fraud-inspired criminality is extraordinary. It plays back to a point we have been hammering today: if this Bill is about anything, it is the way the internet amplifies that which would be unpleasant anyway but will now reach epidemic proportions.

I wonder whether that is the clue to the problem the noble Baroness was commenting on—I think more in hope than in having any way to resolve it. It is great news that three Bills are doing all the stuff we want. We have talked a bit about three-legged stools; this is another one that might crash over. If we are not careful, it will slip through the cracks. I am mixing my metaphors again.

If the Minister would not mind a bit of advice, it seems to me that this Bill could do certain things and do them well. It should not hold back and wait for the others to catch up or do things differently. The noble Baroness made the point about the extraordinarily difficult to understand gap, in that what is happening to priority illegal content elsewhere in the Bill does not apply to this, even though it is clearly illegal activity. I understand that there is a logical line that it is not quite the same thing—that the Bill is primarily about certain restricted types of activity on social media and not the generality of fraud—but surely the scale of the problem and our difficulty in cracking down on it, by whatever routes and whatever size of stool we choose, suggest that we should do what we can in this Bill and do it hard, deeply and properly.

Secondly, we have amendments later in Committee on the role of the regulators and the possibility recommended by the Communications and Digital Committee that we should seek statutory backing for regulation in this area. Here is a classic example of more than two regulators working to achieve the same end that will probably bump into each other on the way. There is no doubt that the FCA has primary responsibility in this area, but the reality is that the damage is being done by the amplification effect within the social media companies.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 16th May 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I had better start by declaring an interest. It is a great pleasure to follow the noble Baroness, Lady Harding, because my interest is directly related to the ombudsman she has just been praising. I am chairman of the board of the Trust Alliance Group, which runs the Energy Ombudsman and the telecoms ombudsman. The former was set up under the Consumers, Estate Agents and Redress Act 2007 and the latter under the Communications Act 2003.

Having got that off my chest, I do not have to boast about the efficacy of ombudsmen; they are an important institution, they take the load off the regulator to a considerable degree and they work closely with the participating companies in the schemes they run. On balance, I would prefer the Consumers, Estate Agents and Redress Act scheme because it involves a single ombudsman, but both those ombudsmen demonstrate the benefit in their sectors.

The noble Lord, Lord Stevenson, pretty much expressed the surprise that we felt when we read the Government’s response to what we thought was a pretty sensible suggestion in the Joint Committee’s report. He quoted it, and I am going to quote it again because it is such an extraordinary statement:

“An independent resolution mechanism such as an Ombudsman is relatively untested in areas of non-financial harm”.


If you look at the ones for which I happen to have some responsibility, and at the other ombudsmen— there is a whole list we could go through: the Legal Ombudsman, the Local Government and Social Care Ombudsman, the Parliamentary and Health Service Ombudsman—there are a number who are absolutely able to take a view on non-financial matters. It is a bit flabbergasting, if that is a parliamentary expression, to come across that kind of statement in a government response.

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[Viscount Camrose (Con)]

They would go to the service provider in the first instance and then—

[Lord Clement-Jones (LD)]

What recourse would they have, if Ofcom will not deal with individual complaints in those circumstances?

[Viscount Camrose (Con)]

I am happy to meet and discuss this. We are expanding what they are able to receive today under the existing arrangements. I am happy to meet any noble Lords who wish to take this forward to help them understand this—that is probably best.

Amendments 287 and 289 from the noble Baroness, Lady Fox of Buckley, seek to remove the provision for super-complaints from the Bill. The super-complaints mechanism is an important part of the Bill’s overall redress mechanisms. It will enable entities to raise concerns with Ofcom about systemic issues in relation to regulated services, which Ofcom will be required to respond to. This includes concerns about the features of services or the conduct of providers creating a risk of significant harm to users or the public, as well as concerns about significant adverse impacts on the right to freedom of expression.

On who can make super-complaints, any organisation that meets the eligibility criteria set out in secondary legislation will be able to submit a super-complaint to Ofcom. Organisations will be required to submit evidence to Ofcom, setting out how they meet these criteria. Using this evidence, Ofcom will assess organisations against the criteria to ensure that they meet them. The assessment of evidence will be fair and objective, and the criteria will be intentionally strict to ensure that super-complaints focus on systemic issues and that the regulator is not overwhelmed by the number it receives.

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[Viscount Camrose (Con)]

Overall, the super-complaints mechanism is more for groupings of complaints and has a broader range than the individual complaints process, but I will consider that point going forward.

Many UK regulators have successful super-complaints mechanisms which allow them to identify and target emerging issues and effectively utilise resources. Alongside the Bill’s research functions, super-complaints will perform a vital role in ensuring that Ofcom is aware of the issues users are facing, helping them to target resources and to take action against systemic failings.

On the steps required after super-complaints, the regulator will be required to respond publicly to the super-complaint. Issues raised in the super-complaint may lead Ofcom to take steps to mitigate the issues raised in the complaint, where the issues raised can be addressed via the Bill’s duties and powers. In this way, they perform a vital role in Ofcom’s horizon-scanning powers, ensuring that it is aware of issues as they emerge. However, super-complaints are not linked to any specific enforcement process.

[Lord Clement-Jones (LD)]

My Lords, it has just occurred to me what the answer is to the question, “Where does an individual actually get redress?” The only way they can get redress is by collaborating with another 100 people and raising a super-complaint. Is that the answer under the Bill?

[Viscount Camrose (Con)]

No. The super-complaints mechanism is better thought of as part of a horizon-scanning mechanism. It is not—

[Lord Clement-Jones (LD)]

So it is not really a complaints system; it is a horizon-scanning system. That is interesting.

[Viscount Camrose (Con)]

The answer to the noble Lord’s question is that the super-complaint is not a mechanism for individuals to complain on an individual basis and seek redress.

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[Lord Hope of Craighead (CB)]

My Lords, I follow the noble Lord, Lord Foulkes, with just a few words. As we have been reminded, I tabled Amendment 63, which has already been debated. The Minister will remember that my point was about legal certainty; I was not concerned with devolution, although I mentioned Amendment 58 just to remind him that we are dealing with all parts of the United Kingdom in the Bill and it is important that the expression should have the same meaning throughout all parts.

We are faced with the interesting situation which arose in the strikes Bill: the subject matter of the Bill is reserved, but one must have regard to the fact that its effects spread into devolved areas, which have their own systems of justice, health and education. That is why there is great force in the point that the noble Baroness, Lady Fraser, has been making. I join the noble Lord, Lord Foulkes, in endorsing what she said without going back into the detail, but remind the Minister that devolution exists, even though we are dealing with reserved matters.

[Lord Clement-Jones (LD)]

My Lords, this is unfamiliar territory for me, but the comprehensive introduction of the noble Baroness, Lady Fraser, has clarified the issue. I am only disappointed that we had such a short speech from the noble Lord, Lord Foulkes—uncharacteristic, perhaps I could say—but it was good to hear from the noble and learned Lord, Lord Hope, on this subject as well. The noble Baroness’s phrase “devolution deficit” is very useful shorthand for some of these issues. She has raised a number of questions about the Secretary of State’s powers under Clause 53(5)(c): the process, the method of consultation and whether there is a role for Ofcom’s national advisory committees. Greater transparency in order to understand which offences overlap in all this would be very useful. She deliberately did not go for one solution or another, but issues clearly arise where the thresholds are different. It would be good to hear how the Government are going to resolve this issue.

[Lord Stevenson of Balmacara (Lab)]

My Lords, it is a pity that we have not had the benefit of hearing from the Minister, because a lot of his amendments in this group seem to bear on some of the more generic points made in the very good speech by the noble Baroness, Lady Fraser. I assume he will cover them, but I wonder whether he would at least be prepared to answer any questions people might come back with—not in any aggressive sense; we are not trying to scare the pants off him before he starts. For example, the points made by the noble Lord, Lord Clement-Jones, intrigue me.

I used to have responsibility for devolved issues when I worked at No. 10 for a short period. It was a bit of a joke, really. Whenever anything Welsh happened, I was immediately summoned down to Cardiff and hauled over the coals. You knew when you were in trouble when they all stopped speaking English and started speaking Welsh; then, you knew there really was an issue, whereas before I just had to listen, go back and report. In Scotland, nobody came to me anyway, because they knew that the then Prime Minister was a much more interesting person to talk to about these things. They just went to him instead, so I did not really learn very much.

I noticed some issues in the Marshalled List that I had not picked up on when I worked on this before. I do not know whether the Minister wishes to address this—I do not want to delay the Committee too much—but are we saying that to apply a provision in the Bill to the Bailiwick of Guernsey or the Isle of Man, an Order in Council is required to bypass Parliament? Is that a common way of proceeding in these places? I suspect that the noble and learned Lord, Lord Hope, knows much more about this than I do—he shakes his head—but this is a new one on me. Does it mean that this Parliament has no responsibility for how its laws are applied in those territories, or are there other procedures of which we are unaware?

My second point again picks up what the noble Lord, Lord Clement-Jones, was saying. Could the Minister go through in some detail the process by which a devolved authority would apply to the Secretary of State—presumably for DSIT—to seek consent for a devolved offence to be included in the Online Safety Bill regime? If this is correct, who grants to what? Does this come to the House as a statutory instrument? Is just the Secretary of State involved, or does it go to the Privy Council? Are there other ways that we are yet to know about? It would be interesting to know.

To echo the noble Lord, Lord Clement-Jones, we probably do need a letter from the Minister, if he ever gets this cleared, setting out exactly how the variation in powers would operate across the four territories. If there are variations, we would like to know about them.

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[Baroness Healy of Primrose Hill (Lab)]

My Lords, I support the noble Baroness, Lady Finlay of Llandaff, in her Amendment 96 and others in this group. The internet is fuelling an epidemic of self-harm, often leading to suicide among young people. Thanks to the noble Baroness, Lady Kidron, I have listened to many grieving families explaining the impact that social media had on their beloved children. Content that includes providing detailed instructions for methods of suicide or challenges or pacts that seek agreement to undertake mutual acts of suicide or deliberate self-injury must be curtailed, or platforms must be made to warn and protect vulnerable adults.

I recognise that the Government acknowledge the problem and have attempted to tackle it in the Bill with the new offence of encouraging or assisting serious self-harm and suicide and by listing it as priority illegal content. But I agree with charities such as Samaritans, which says that the Government are taking a partial approach by not accepting this group of amendments. Samaritans considers that the types of suicide and self-harm content that is legal but unequivocally harmful includes information, depictions, instructions and advice on methods of self-harm or suicide, content that portrays self-harm and suicide as positive or desirable and graphic descriptions or depictions of self-harm and suicide.

With the removal of regulation of legal but harmful content, much suicide and self-harm content can remain easily available, and platforms will not even need to consider the risk that such content could pose to adult users. These amendments aim to ensure that harmful self-harm and suicide content is addressed across all platforms and search services, regardless of their functionality or reach, and, importantly, for all persons regardless of age.

In 2017 an inquiry into suicides of young people found suicide-related internet use in 26% of deaths in under-20s and 13% of deaths in 20 to 24 year-olds. Three-quarters of people who took part in Samaritans’ research with Swansea University said that they had harmed themselves more severely after viewing self-harm content online, as the noble Baroness, Lady Finlay, pointed out. People of all ages can be susceptible to harm from this dangerous content. There is shocking evidence that between 2011 and 2015, 151 patients who died by suicide were known to have visited websites that encouraged suicide or shared information about methods of harm, and 82% of those patients were over 25.

Suicide is complex and rarely caused by one thing. However, there is strong evidence of associations between financial difficulties, mental health and suicide. People on the lowest incomes have a higher suicide risk than those who are wealthier, and people on lower incomes are also the most affected by rising prices and other types of financial hardship. In January and February this year the Samaritans saw the highest percentage of first-time phone callers concerned about finance or unemployment—almost one in 10 calls for help in February. With the cost of living crisis and growing pressure on adults to cope with stress, it is imperative that the Government urgently bring in these amendments to help protect all ages from harmful suicide and self-harm content by putting a duty on providers of user-to-user services to properly manage such content.

A more comprehensive online safety regime for all ages will also increase protections for children, as research has shown that age verification and restrictions across social media and online platforms are easily bypassed by them. As the Bill currently stands, there is a two-tier approach to safety which can still mean that children may circumnavigate safety controls and find this harmful suicide and self-harm content.

Finally, user empowerment duties that we debated earlier are no substitute for regulation of access to dangerous suicide and self-harm online content through the law that these amendments seek to achieve.

[Lord Clement-Jones (LD)]

My Lords, I thank the noble Baroness, Lady Finlay, for introducing the amendments in the way she did. I think that what she has done, and what this whole debate has done, is to ask the question that the noble Baroness, Lady Kidron, posed: we do not know yet quite where the gaps are until we see what the Government have in mind in terms of the promised new offence. But it seems pretty clear that something along the lines of what has been proposed in this debate needs to be set out as well.

One of the most moving aspects of being part of the original Joint Committee on the draft Bill was the experience of listening to Ian Russell and the understanding, which I had not come across previously, of the sheer scale of the kind of material that has been the subject of this debate on suicide and self-harm encouragement. We need to find an effective way of dealing with it and I entirely take my noble friend’s point that this needs a combination of protectiveness and support. I think the combination of these amendments is designed to do precisely that and to learn from experience through having the advisory committee as well.

It is clear that, by itself, user empowerment is just not going to be enough in all of this. I think that is the bottom line for all of us. We need to go much further, and we owe a debt to the noble Baroness, Lady Finlay, for raising these issues and to the Samaritans for campaigning on this subject. I am just sorry that my noble friend Lady Tyler cannot be here because she is a signatory to a number of the amendments and feels very strongly about these issues as well.

I do not think I need to unpack a great deal of the points that have been made. We know that suicide is a leading cause of death in males under 50 and females under 35 in the UK. We know that so many of the deaths are internet-related and we need to find effective methods of dealing with this. These are meant to be practical steps.

I take the point of the noble Baroness, Lady Fox, not only that it is a social problem of some magnitude but that the question of definitions is important. I thought she strayed well beyond where I thought the definition of “self-harm” actually came. But one could discuss that. I thought the noble Baroness, Lady Kidron, saying that we want good law, not relying on good people, was about definitions. We cannot just leave it to the discretion of an individual, however good they may be, moderating on a social media platform.

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[Lord Parkinson of Whitley Bay (Con)]

I refer to the meeting my noble friend Lord Camrose offered; we will be able to go through and unpick the issues raised in that group of amendments, rather than looping back to that debate now.

[Lord Clement-Jones (LD)]

The Minister is going through the structure of the Bill and saying that what is in it is adequate to prevent the kinds of harms to vulnerable adults that we talked about during this debate. Essentially, it is a combination of adherence to terms of service and user-empowerment tools. Is he saying that those two aspects are adequate to prevent the kinds of harms we have talked about?

[Lord Parkinson of Whitley Bay (Con)]

Yes, they are—with the addition of what I am coming to. In addition to the duty for companies to consider the role of algorithms, which I talked about, Ofcom will have a range of powers at its disposal to help it assess whether providers are fulfilling their duties, including the power to require information from providers about the operation of their algorithms. The regulator will be able to hold senior executives criminally liable if they fail to ensure that their company is providing Ofcom with the information it requests.

However, we must not restrict users’ right to see legal content and speech. These amendments would prescribe specific approaches for companies’ treatment of legal content accessed by adults, which would give the Government undue influence in choosing, on adult users’ behalf, what content they see—

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The Bill is a unique opportunity to protect women and girls online, so I commend the Government on introducing it to Parliament, but they could do much more to combat violence against women and girls. If they do not, inaction now will result in us sleepwalking into a culture of normalising despicable behaviour towards women even more openly. If online perpetrators of abuse are not tackled robustly now, it will embolden them further to escalate and gaslight victims. The Government must send perpetrators a message that there is no place to hide—not even online. If the Government want the UK to be the safest place in the world to be online, they should agree to these amendments.

[Lord Clement-Jones (LD)]

My Lords, I will be very brief. My noble friend has very eloquently expressed the support on these Benches for these amendments, and I am very grateful to the noble Baroness, Lady Morgan, for setting out the case so extremely convincingly, along with many other noble Lords. It is, as the noble Baroness, Lady Kidron, said, about the prevention of the normalisation of misogyny. As my noble friend said, it is for the tech companies to prevent that.

The big problem is that the Government have got themselves into a position where—except in the case of children—the Bill now deals essentially only with illegal harms, so you have to pick off these harms one by one and create illegality. That is why we had the debate in the last group about other kinds of harm. This is another harm that we are debating, precisely because the Government amended the Bill in the Commons in the way that they did. But it does not make this any less important. It is quite clear; we have talked about terms of service, user empowerment tools, lack of enforcement, lack of compliance and all the issues relating to these harms. The use of the expression “chilling effect”—I think by the noble Baroness, Lady Kidron—and then the examples given by the noble Baroness, Lady Gohir, absolutely illustrated that. We are talking about the impact on freedom of expression.

I am afraid that, once again, I do not agree with the noble Baroness, Lady Fox. Why do I find myself disagreeing on such a frequent basis? I think the harms override the other aspects that the noble Baroness was talking about.

We have heard about the lack of a proper complaints system—we are back to complaints again. These themes keep coming through, and until the Government see that there are flaws in the Bill, I do not think we are going to make a great deal more progress. The figure given was that more than half of domestic abuse survivors did not receive a response from the platform to their report of domestic abuse-related content. That kind of example demonstrates that we absolutely need this code.

There is an absolutely convincing case for what one of our speakers, probably the right reverend Prelate, called a holistic way of dealing with these abuses. That is what we need, and that is why we need this code.

[Baroness Merron (Lab)]

My Lords, the amendments in this group, which I am pleased to speak to now, shine a very bright light on the fact that there is no equality when it comes to abuse. We are not starting at a level playing field. This is probably the only place that I do not want to level up; I want to level down. This is not about ensuring that men can be abused as much as women; it is about the very core of what the Bill is about, which is to make this country the safest online space in the world. That is something that unites us all, but we do not start in the same place.

I thank all noble Lords for their very considered contributions in unpicking all the issues and giving evidence about why we do not have that level playing field. Like other noble Lords, I am grateful to the noble Baroness, Lady Morgan, for her thorough, illustrative and realistic introduction to this group of amendments, which really framed it today. Of course, the noble Baroness is supported in signing the amendment by the noble Baroness, Lady Kidron, the right reverend Prelate the Bishop of Gloucester and my noble friend Lord Knight.

The requirement in Amendment 97 that there should be an Ofcom code of practice is recognition that many aspects of online violence disproportionately affect women and girls. I think we always need to come back to that point, because nothing in this debate has taken me away from that very clear and fundamental point. Let us remind ourselves that the online face of violence against women and girls includes—this is not a full list—cyberflashing, abusive pile-ons, incel gangs and cyberstalking, to name but a few. Again, we are not starting from a very simple point; we are talking about an evolving online face of violence against women and girls, and the Bill needs to keep pace.

I associate myself with the words of the noble Baroness, Lady Morgan, and other noble Lords in thanking and appreciating the groups and individuals who have already done the work, and who have—if I might use the term—an oven-ready code of practice available to the Minister, should he wish to avail himself of it. I share the comments about the lack of logic. If violence against women and girls is part of the strategic policing requirement, and the Home Secretary says that dealing with violence against women and girls is a priority, why is this not part of a joined-up government approach? That is what we should now be seeing in the Bill. I am sure the Minister will want to address that question.

The right reverend Prelate the Bishop of Gloucester rightly said that abuse is abuse. Whether it is online or offline, it makes no difference. The positive emphasis should be that women and girls should be able to express themselves online as they should be able to offline. Again, that is a basic underlying point of these amendments.

I listened very closely to the words of the noble Baroness, Lady Stowell. I understand her nervousness, and she is absolutely right to bring before the Committee that perhaps a code of conduct of this nature could allow and encourage, to quote her, division. The challenge we have is that women and girls have a different level of experience. We all want to see higher standards of behaviour, as the noble Baroness referred to—I know that we will come back to that later. However, I cannot see how not having a code of conduct will assist those higher standards because the proposed code of conduct simply acknowledges the reality, which is that women and girls are 27 times more likely to be abused online than men are. I want to put on record that this is not about emphasising division, saying that it is all right to abuse men or, as the noble Baroness gives me the opportunity to say, saying that all men are somehow responsible—far from it. As ever, this is something that unites us all: the tackling of abuse wherever it takes place.

Amendment 104 in the name of my noble friend Lord Stevenson proposes an important change to Schedule 4: that

“women and girls, and vulnerable adults”

should have a higher standard of protection than other adult users. That amendment is there because the Bill is silent on these groups. There is no mention of them, so we seek to change this through that amendment.

To return to the issue of women and girls, two-thirds of women who report abuse to internet companies do not feel heard. Three-quarters of women change their behaviour after receiving online abuse. I absolutely agree with the noble Baroness, Lady Kidron, who made the point that the Bill currently assumes that there is no interconnection between different safety duties where somebody has more than one protected characteristic, because it misses reality. One has only to talk to Jewish women to know that, although anti-Semitism knows no bounds, if you are a Jewish woman then there is no doubt that you will be the subject of far greater abuse than your male counterpart. Similarly, women of colour are one-third more likely to be mentioned in abusive tweets than white women. Again, there is no level playing field.

As it stands, the Bill puts an onus on women and girls to protect themselves from online violence and abuse. The problem, as has been mentioned many times, is that user empowerment tools do not incentivise services to address the design of their service, which may be facilitating the spread of violence against women and girls. That point was very well made by my noble friend Lady Healy and the noble Baroness, Lady Gohir, in their contributions.

On the question of the current response to violence against women and girls from tech companies, an investigation by the Times identified that platforms such as TikTok and YouTube are profiting from a wave of misogynist content, with a range of self-styled “self-help gurus”, inspired by the likes of Andrew Tate, offering advice to their millions of followers, encouraging men and boys, in the way described by the noble Baroness, Lady Stowell, to engage with women and girls in such a way that amounts to pure abuse, instructing boys and men to ensure that women and girls in their lives are “compliant”, “insecure” and “well- behaved”. This is not the kind of online space that we seek.

I hope that the Minister, if he cannot accept the amendments, will give his assurance that he can understand what is behind them and the need for action, and will reflect and come back to your Lordships’ House in a way that can allow us to level down, rather than level up, the amount of abuse that is aimed at men but also, in this case in particular, at women and girls.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 16th May 2023 Lords Chamber

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

My Lords, the amendments in this group consider the role of collaboration and consultation in Ofcom’s approach. The proposals range in their intent, and include mandating additional roles for young people in the framework, adding new formal consultation requirements, and creating powers for Ofcom to work with other organisations.

I reassure noble Lords that the Government take these concerns extremely seriously. That is why the Bill already places the voices of experts, users and victims at the heart of the regime it establishes. In fact, the intent of many of the amendments in this group will already be delivered. That includes Ofcom working with others effectively to deliver the legislation, consulting on draft codes of practice, and having the ability to designate specific regulatory functions to other bodies where appropriate. Where we can strengthen the voices of users, victims or experts—without undermining existing processes, reducing the regulator’s independence or causing unacceptable delays—the Government are open to this. That is why I am moving the amendment today. However, as we have heard in previous debates, this is already a complex regulatory framework, and there is a widespread desire for it to be implemented quickly. Therefore, it is right that we guard against creating additional or redundant requirements which could complicate the regime or unduly delay implementation.

I turn to the amendment in my name. As noble Lords know, Ofcom will develop codes of practice setting out recommended measures for companies to fulfil their duties under the Bill. When developing those codes, Ofcom must consult various persons and organisations who have specific knowledge or expertise related to online harms. This process will ensure that the voices of users, experts and others are reflected in the codes, and, in turn, that the codes contain appropriate and effective measures.

One of the most important goals of the Bill, as noble Lords have heard me say many times, is the protection of children. It is also critical that the codes reflect the views of victims of online abuse, as well as the expertise of those who have experience in managing them. Therefore, the government amendment seeks to name the Commissioner for Victims and Witnesses, the domestic abuse commissioner and the Children’s Commissioner as statutory consultees under Clause 36(6). Ofcom will be required to consult those commissioners when preparing or amending a code of practice.

Listing these commissioners as statutory consultees will guarantee that the voices of victims and those who are disproportionately affected by online abuse are represented when developing codes of practice. This includes, in particular, women and girls—following on from our debate on the previous group—as well as children and vulnerable adults. This will ensure that Ofcom’s codes propose specific and targeted measures, such as on illegal content and content that is harmful to children, that platforms can take to address abuse effectively. I therefore hope that noble Lords will accept it.

I will say a little about some of the other amendments in this group before noble Lords speak to them. I look forward to hearing how they introduce them.

I appreciate the intent of Amendment 220E, tabled by the noble Lord, Lord Clement-Jones, and my noble friend Lady Morgan of Cotes, to address the seriousness of the issue of child sexual exploitation and abuse online. This amendment would allow Ofcom to designate an expert body to tackle such content. Where appropriate and effective, Section 1(7) of the Communications Act 2003 and Part II of the Deregulation and Contracting Out Act 1994 provide a route for Ofcom to enter into co-regulatory arrangements under the online safety framework.

There are a number of organisations that could play a role in the future regulatory framework, given their significant experience and expertise on the complex and important issue of tackling online child sexual exploitation and abuse. This includes the Internet Watch Foundation, which plays a pivotal role in the detection and removal of child sexual abuse material and provides vital tools to support its members to detect this abhorrent content.

A key difference from the proposed amendment is that the existing route, following consultation with Ofcom, requires an order to be made by a Minister, under the Deregulation and Contracting Out Act 1994, before Ofcom can authorise a co-regulator to carry out regulatory functions. Allowing Ofcom to do this, without the need for secondary legislation, would allow Ofcom to bypass existing parliamentary scrutiny when contracting out its regulatory functions under the Bill. By contrast, the existing route requires a draft order to be laid before, and approved by, each House of Parliament.

The noble Lord, Lord Knight of Weymouth, tabled Amendment 226, which proposes a child user advocacy body. The Government are committed to the interests of child users being represented and protected, but we believe that this is already achieved through the Bill’s existing provisions. There is a wealth of experienced and committed representative groups who are engaged with the regulatory framework. As the regulator, Ofcom will also continue to consult widely with a range of interested parties to ensure that it understands the experience of, and risks affecting, children online. Further placing children’s experiences at the centre of the framework, the Government’s Amendment 98A would name the Children’s Commissioner as a statutory consultee for the codes of practice. The child user advocacy body proposed in the noble Lord’s Amendment 226 may duplicate the Children’s Commissioner’s existing functions, which would create uncertainty, undermining the effectiveness of the Children’s Commissioner’s Office. The Government are confident that the Children’s Commissioner will effectively use her statutory duties and powers to understand children’s experiences of the digital realm.

For the reasons that I have set out, I am confident that children’s voices will be placed at the heart of the regime, with their interests defended and advocated for by the regulator, the Children’s Commissioner, and through ongoing engagement with civil society groups.

Similarly, Amendment 256, tabled by the noble Baroness, Lady Bennett of Manor Castle, seeks to require that any Ofcom advisory committees established by direction from the Secretary of State under Clause 155 include at least two young people. Ofcom has considerable experience in setting up committees of this kind. While there is nothing that would preclude committee membership from including at least two young people, predetermining the composition of any committee would not give Ofcom the necessary space and independence to run a transparent process. We feel that candidates should be appointed based on relevant understanding and technical knowledge of the issue in question. Where a board is examining issues with specific relevance to the interests of children, we would expect the committee membership to reflect that appropriately.

I turn to the statement of strategic priorities. As I hope noble Lords will agree, future changes in technology will likely have an impact on the experience people have online, including the nature of online harms. As provided for by Clause 153, the statement of strategic priorities will allow the Secretary of State to set out a statement of the Government’s strategic priorities in relation to online safety. This ensures that the Government can respond to changes in the digital and regulatory landscape at a strategic level. A similar power exists for telecommunications, the management of the radio spectrum, and postal services.

Amendments 251 to 253 seek to place additional requirements on the preparation of a statement before it can be designated. I reassure noble Lords that the existing consultation and parliamentary approval requirements allow for an extensive process before a statement can be designated. These amendments would introduce unnecessary steps and would move beyond the existing precedent in the Communications Act when making such a statement for telecommunications, the management of the radio spectrum, and postal services.

Finally, Amendment 284, tabled by the noble Lord, Lord Stevenson of Balmacara, proposes changes to Clause 171 on Ofcom’s guidance on illegal content judgments. Ofcom is already required to consult persons it considers appropriate before producing or revising the guidance, which could include the groups named in the noble Lord’s amendment. This amendment would oblige Ofcom to run formal public consultations on the illegal content guidance at two different stages: first, at a formative stage in the drafting process, and then before publishing a final version. These consultations would have to be repeated before subsequently amending or updating the guidance in any way. This would impose duplicative, time-consuming requirements on the regulator to consult, which are excessive when looking at other comparable guidance. The proposed consultations under this amendment would ultimately delay the publication of this instrumental guidance.

I will listen to what noble Lords have to say when they speak to their amendments, but these are the reasons why, upon first reading, we are unpersuaded by them.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for opening the group. This is a slightly novel procedure: he has rebutted our arguments before we have even had a chance to put them—what is new? I hope he has another speech lined up for the end which accepts some of the arguments we put, to demonstrate that he has listened to all the arguments made in the debate.

I will speak mainly to Amendments 220E and 226, ahead of the noble Baroness, Lady Kidron; I understand that the noble Baroness, Lady Merron, will be speaking at the end of the group to Amendment 226. I am very grateful to the noble Baroness, Lady Morgan, for signing Amendment 220E; I know she feels very strongly about this issue as well.

As the Minister said, this amendment is designed to confirm the IWF’s role as the recognised body for dealing with notice and take-down procedures for child sexual abuse imagery in the UK and to ensure that its long experience and expertise continues to be put to best use. In our view, any delay in establishing the roles and responsibilities of expert organisations such as the IWF in working with Ofcom under the new regulatory regime risks leaving a vacuum in which the risks to children from this hateful form of abuse will only increase. I heard what the Minister said about the parliamentary procedure, but that is a much slower procedure than a designation by Ofcom, so I think that is going to be one of the bones of contention between us.

The Internet Watch Foundation is a co-regulatory body with over 25 years of experience working with the internet industry, law enforcement and government to prevent the uploading of, and to disable public access to, known child sexual abuse, and to secure the removal of indecent images and videos of children from the internet. The organisation has had some considerable success over the last 25 years, despite the problem appearing to be getting worse globally.

In 2022, it succeeded in removing a record 255,000 web pages containing child sexual abuse. It has also amassed a database of more than 1.6 million unique hashes of child sexual abuse material, which has been provided to the internet industry to keep its platforms free from such material. In 2020, the Independent Inquiry into Child Sexual Abuse concluded that, in the UK, the IWF

“sits at the heart of the national response to combating the proliferation of indecent images of children. It is an organisation that deserves to be acknowledged publicly as a vital part of how, and why, comparatively little child sexual abuse material is hosted in the UK”.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

I am grateful to noble Lords who have spoken to their amendments. Regarding the lead amendment in the group, I take on board what was said about its inevitable pre-emption—something that I know all too well from when the boot is on the other foot in other groups. However, I have listened to the points that were made and will of course respond.

I join the tributes rightly paid by noble Lords to the Internet Watch Foundation. The Government value its work extremely highly and would support the use of its expertise and experience in helping to deliver the aims of the Bill. My noble friend Lady Morgan of Cotes is right to say that it is on the front line of this work and to remind us that it encounters some of the most horrific and abhorrent content in the darkest recesses of the internet—something that I know well from my time as an adviser at the Home Office, as well as in this capacity now. Both the Secretary of State for Science, Innovation and Technology and the Minister for Safeguarding at the Home Office recently provided a foreword to the foundation’s latest annual report.

Clearly, Ofcom will need a wide variety of relationships with a range of organisations. Ofcom has been in regular contact with the Internet Watch Foundation, recognising its significant role in supporting the objectives of online safety regulation, and is discussing a range of options to make the best use of its expertise. The noble Lord, Lord Clement-Jones, asked what consultation and discussion is being had. We support the continuation of that engagement and are in discussions with the Internet Watch Foundation ourselves to understand how it envisages its role in supporting the regulatory environment. No decisions have been made on the co-regulatory role that other organisations may play. The Government will work with Ofcom to understand where it may be effective and beneficial to delivering the regulatory framework. Careful assessment of the governance, independence and funding of any organisations would be needed if co-designation were to be considered, but officials from the Department for Science, Innovation and Technology and the Home Office are in discussion with the IWF in relation to a memorandum of understanding to support ongoing collaboration.

On the designation of regulatory functions, we are satisfied that the powers under the Communications Act and the Deregulation and Contracting Out Act are sufficient, should other bodies be required to deliver specific aspects of the regime, so we do not see a need to amend the Bill in the way the amendments in this group suggest. Those Acts require an order from the Minister in order to designate any functions. The Minister has to consult Ofcom before making the order, and that is the mechanism that was used to appoint the Advertising Standards Authority to regulate broadcast advertising. It remains appropriate for Parliament to scrutinise the delivery of these important regulatory functions; accordingly, such an order cannot be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.

The noble Baroness, Lady Merron, dwelt on the decision not to include a child user advocacy body. As I said in my earlier remarks and in relation to other groups, the Bill ensures that children’s voices will be heard and that what they say will be acted on. Ofcom will have statutory duties requiring it to understand the opinions and experiences of users, including children, by consulting widely when developing its codes. Ofcom will also have the flexibility to establish other mechanisms for conducting research about users’ experience. Additionally, the super-complaints process, which we began discussing this afternoon, will make sure that entities, including those that represent the interests of children, will have their voices heard and will help Ofcom recognise and eliminate systemic failings.

We are also naming the Children’s Commissioner as a statutory consultee for Ofcom in developing its codes of practice. A further new child user advocacy body would encroach on the wider statutory functions of the Children’s Commissioner. Both bodies would have similar responsibilities and powers to represent the interests of child users of regulated services, to protect and promote the interests of child users of regulated services, and to be a statutory consultee for the drafting and amendment of Ofcom’s codes of practice.

The noble Baroness, Lady Kidron, when discussing the input of the Children’s Commissioner into the regulatory framework, suggested that it was a here and now issue. She is right: the Children’s Commissioner will represent children’s views to Ofcom in preparing the codes of practice to ensure that they are fully informing the regime, but the commissioner will also have a continuing role, as they will be the statutory consultee on any later amendments to the codes of practice relating to children. That will ensure that they can engage in the ongoing development of the regime and can continue to feed in insights on emerging risks identified through the commissioner’s statutory duty to understand children’s experiences.

The Bill further ensures that new harms and risks to children are proactively identified by requiring that Ofcom make arrangements to undertake research about users’ experiences on regulated services. This will build on the significant amount of research that Ofcom already does, better to understand children’s experience online, particularly their experiences of online harms.

The super-complaints process will enable an eligible entity to make a complaint to Ofcom regarding a provider or providers that cause significant harm or significant adverse impact on users, including children. This will help Ofcom to recognise and eliminate systemic failings, including those relating to children, and will ensure that children’s views and voices continue to inform the regime as it is developed.

The Bill will also require that Ofcom undertake consumer consultation in relation to regulated services. This will, in effect, expand the scope of the Communications Consumer Panel to online safety matters, and will ensure that the needs of users, including children, are at the heart of Ofcom’s regulatory approach.

I draw noble Lords’ attention to the provisions of Clause 141(2), which states that Ofcom must make arrangements to ascertain

“the experiences of United Kingdom users of regulated services”.

That, of course, includes children. I hope, therefore, that noble Lords will be satisfied that the voices of children are indeed being listened to throughout the operation of the Bill. However, we have high regard for the work of the Internet Watch Foundation. I hope that noble Lords will be willing not to press their amendments—after the noble Lord, Lord Clement-Jones, asks his question.

[Lord Clement-Jones (LD)]

My Lords, I am in the slightly strange position of not having moved the amendment, but I want to quickly respond. I was slightly encouraged by what the Minister said about Ofcom having been in regular contact with the IWF. I am not sure that that is mutual; maybe Ofcom thinks it is in good contact with the IWF, but I am not sure the IWF thinks it is in good contact with Ofcom. However, I am encouraged that the Minister at least thinks that that has been the case and that he is encouraging consultation and the continuation of engagement.

Online Safety Bill

Lord Clement-Jones 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.

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

My Lords, the amendments concern the independence of Ofcom and the role of parliamentary scrutiny. They are therefore indeed an important group, as those things will be vital to the success of the regime that the Bill sets up. Introducing a new, ground-breaking regime means balancing the need for regulatory independence with a transparent system of checks and balances. The Bill therefore gives powers to the Secretary of State comprising a power to direct Ofcom to modify a code of practice, a power to issue a statement of strategic priorities and a power to issue non-binding guidance to the regulator.

These powers are important but not novel; they have precedent in the Communications Act 2003, which allows the Secretary of State to direct Ofcom in respect of its network and spectrum functions, and the Housing and Regeneration Act 2008, which allows the Secretary of State to make directions to the Regulator of Social Housing to amend its standards. At the same time, I agree that it is important that we have proportionate safeguards in place for the use of these powers, and I am very happy to continue to have discussions with noble Lords to make sure that we do.

Amendment 110, from the noble Lord, Lord Stevenson, seeks to introduce a lengthier process regarding parliamentary approval of codes of practice, requiring a number of additional steps before they are laid in Parliament. It proposes that each code may not come into force unless accompanied by an impact assessment covering a range of factors. Let me reassure noble Lords that Ofcom is already required to consider these factors; it is bound by the public sector equality duty under the Equality Act 2010 and the Human Rights Act 1998 and must ensure that the regime and the codes of practice are compliant with rights under the European Convention on Human Rights. It must also consult experts on matters of equality and human rights when producing its codes.

Amendment 110 also proposes that any designated Select Committee in either House has to report on each code and impact assessment before they can be made. Under the existing process, all codes must already undergo scrutiny by both Houses before coming into effect. The amendment would also introduce a new role for the devolved Administrations. Let me reassure noble Lords that the Government are working closely with them already and will continue to do so over the coming months. As set out in Schedule 5 to the Scotland Act 1998, however, telecommunications and thereby internet law and regulation is a reserved policy area, so input from the devolved Administrations may be more appropriately sought through other means.

Amendments 111, 113, 114, 115, and 117 to 120 seek to restrict or remove the ability of the Secretary of State to issue directions to Ofcom to modify draft codes of practice. Ofcom has great expertise as a regulator, as noble Lords noted in this debate, but there may be situations where a topic outside its remit needs to be reflected in a code of practice. In those situations, it is right for the Government to be able to direct Ofcom to modify a draft code. This could, for example, be to ensure that a code reflects advice from the security services, to which Ofcom does not have access. Indeed, it is particularly important that the Secretary of State be able to direct Ofcom on matters of national security and public safety, where the Government will have access to information which Ofcom will not.

I have, however, heard the concerns raised by many in your Lordships’ House, both today and on previous occasions, that these powers could allow for too much executive control. I can assure your Lordships that His Majesty’s Government are committed to protecting the regulatory independence of Ofcom, which is vital to the success of the framework. With this in mind, we have built a number of safeguards into the use of the powers, to ensure that they do not impinge on regulatory independence and are used only in limited circumstances and for the appropriate reasons.

I have heard the strong feelings expressed that this power must not unduly restrict regulatory independence, and indeed share that feeling. In July, as noble Lords noted, the Government announced our intention to make substantive changes to the power; these changes will make it clear that the power is for use only in exceptional circumstances and will replace the “public policy” wording in Clause 39 with a defined list of reasons for which a direction can be made. I am happy to reiterate that commitment today, and to say that we will be making these changes on Report when, as the noble Lord, Lord Clement-Jones, rightly said, noble Lords will be able to see the wording and interrogate it properly.

Additionally, in light of the debate we have just had today—

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 23rd May 2023 Lords Chamber

Moved by

[Lord Clement-Jones]

124: Clause 49, page 47, line 6, at end insert—
“(2A) Subsection (2)(e) does not apply in respect of a regulated user-to-user service which is operated by an organisation which—(a) is a relevant publisher (within the meaning of section 41 of the Crime and Courts Act 2013), and(b) has an annual UK turnover in excess of £100 million.”Member’s explanatory statement
This amendment seeks to ensure the comment sections of the largest newspaper websites are subject to the Online Safety Bill’s regulatory regime.

[Lord Clement-Jones (LD)]

My Lords, I shall speak to Amendment 124 but also to Amendments 126 and 227, all of which were tabled by my noble friend Lord McNally and supported by the noble Lord, Lord Lipsey. Sadly, they are both unable to do battle today, for health reasons, and I start by wishing them both a speedy recovery. I hope that I at least partly do justice to their intentions and to these amendments today.

These amendments are designed to address significant loopholes in the Bill which have been very clearly pointed out by Hacked Off, Impress—the press regulator—and the Press Recognition Panel. These loopholes risk enabling extremist publishers to take advantage of the overbroad “recognised news publisher” exemption and allow hatred and other online harms to spread on some of the most popular social media forums online—the newspaper comment sections. Amendment 124 would remove comment sections operated by news websites where the publisher has a UK turnover of more than £100 million from the exemption for regulated user-generated content.

Some of the most harmful online content is in newspaper comment sections, which are in fact social media forums themselves and are read by millions of readers every day. Hacked Off has found examples of misogyny, explicit anti-Semitic language, Holocaust denial and more. Women in public life are also the target of misogyny in these comments sections. Professor Corinne Fowler, an academic who was criticised by some newspapers after contributing to a National Trust report, describing her experience, wrote that

“unregulated comments beneath articles, including the Telegraph and The Times as well as the Daily Mail and the Express … contained scores of suggestions about how to kill or injure me. Some were general ideas, such as hanging, but many were gender-specific, saying that I should be burnt at the stake like a witch … without me knowing, my son (then 12 years old) read these reader comments. He became afraid for my safety. The comments were easily accessible: he googled ‘Corinne Fowler National Trust’ and scrolled below the articles. No child should have to deal with hate speech directed at a parent”.

Amendment 126 would have the effect of incentivising newspapers to sign up to an independent regulator. It would expand the definition of a “recognised news publisher” to incorporate any entity that is a member of an approved regulator, while excluding publishers that are not members of such a regulator, unless they are broadcasters and regulated by Ofcom. Recognised news publishers enjoy wide exemptions in the Bill. Their content is not only protected from being taken down by platforms, but a new provision will require platforms to actively consult media publishers before removing their content. As a result, news publishers will enjoy greater free speech rights under the Bill than private citizens.

The criteria to qualify as a “recognised news publisher” is different for broadcasters and other media. For broadcasters, outlets must be regulated by Ofcom. For non-broadcast media, outlets need only meet a list of vague criteria: have a standards code, which could say anything; have a complaints process, which could also say anything; have a UK office; have staff; and not be a sanctioned title. As a result, a host of extremist and disinformation publishing websites may qualify immediately, or with minor administrative changes, for this rather generous exemption. For example, conspiracy theorist and racist David Icke’s website could qualify with minor administrative changes. He would be free to propagate his dangerous and, in many cases, anti-Semitic conspiracies on social media. Heritage and Destiny, an openly racist website, would likewise be able to qualify with minor changes and spread racial hatred on social media. Infowars could open up a UK office, qualify and spread harmful content on social media.

This amendment would replace that vague list of criteria with the simple requirement that, to access the exemption, non-broadcast media publishers must be in a PRP-approved independent regulator. The effect would be that extremists and harmful publishers would not be able to access the exemption. All publishers would have the same free speech rights as everyone else, unless they are otherwise regulated under the charter system or Ofcom in the case of broadcasters.

Amendment 227 requires Ofcom’s reporting on the impact of the regulatory regime on the availability and treatment of news publishers and journalistic content to also cover what impact the news publisher exemption and journalistic content duty have on the regime’s efficacy. The Bill requires Ofcom to publish a report on whether the new regime will harm freedom of the press. This is despite the fact the Bill already goes to extraordinary lengths to protect the interests of the press. This very modest amendment would require Ofcom’s report to also query whether the news publisher exemption is undermining the regulatory regime.

Impress, which is the UK’s only press regulator approved by the Press Recognition Panel under royal charter, says that the Bill leaves the public vulnerable and exposed to online harms and therefore falls short of the Government’s aim of making the UK the safest place to be online. It has summarised the three ways in which the current Bill is in danger of undermining its principal function—to protect the public from online harms—which could be resolved by these amendments.

First, the Bill creates an uneven playing field. A poor definition of what constitutes a news publisher threatens to undermine the public protection benefits of the Bill. Secondly, the Bill misses an opportunity to fight misinformation or disinformation. The Bill undermines industry standards and fails to distinguish journalism from fake news. Thirdly, the Bill could be easily used as a cover to spread serious harms. The Bill’s current journalism exemptions create dangerous loopholes which could easily be exploited to spread misinformation and disinformation. Publishers should be required to demonstrate compliance and oversight in relation to their published code of conduct and complaints policy.

If we needed any more persuasion, a letter to me from David Wolfe KC, the chair of the PRP, provides an additional twist:

“I am writing to draw your attention to the Bill’s potential impact on the regulation of the press and news publishers in the UK. Specifically, to Clause 50 of the Bill, which explains the circumstances in which news publishers are taken out of the proposed Ofcom regulatory regime … it does not specify any minimum standards and does not specify who is to assess publishers. The practical implication, though, is that Ofcom—whose board are appointed by the Secretary of State … and which operates under their direct oversight—will not only set the minimum requirements but also undertake the assessment. Paradoxically, the possibility of political interference, which Lord Leveson and the Royal Charter set out to avoid (in the Royal Charter and PRP framework) might now be directly introduced for all UK news publishers”.


That means that the national press, which has avoided regulation, is coming under the regulation of Ofcom. I will be very interested to hear what a number of noble Lords might have to say on that subject.

Taken together, these amendments would address serious flaws in the Bill, and I very much hope that the Government’s response will be to reflect on them. I beg to move.

[Lord Black of Brentwood (Con)]

My Lords, I join the noble Lord in wishing the noble Lords, Lord McNally and Lord Lipsey, well. I hope they are watching us on the television—perhaps as a cure for insomnia at this time of night. I declare my interest as deputy chairman of the Telegraph Media Group and of the Regulatory Funding Company and note my other interests set out in the register. I must admit I was gripped by a sense of déjà vu when I saw these amendments on the Marshalled List, because I fear they risk catapulting us back into the debate over matters which were settled a decade ago in response to events which took place two decades or more ago.

Before coming on to the detail of some of the amendments that the noble Lord set out, I will make a few general points which relate principally to Amendments 126 and 227 but impinge on the whole group.

First, I do not believe that this Bill, which is about the enormous, unaccountable and unregulated platforms and the dangers they pose to the vulnerable, is the place to reopen the debate about press regulation. Later in the year there will be a media Bill, recently published in draft, which will contain provisions to repeal Section 40 of the Crime and Courts Act 2013. If noble Lords want to discuss the whole issue of the royal charter and punitive legislation against the press, I respectfully suggest that that is the time and place to do so.

Secondly, this Bill has widespread support. The vast majority of people agree with its aims, even if we have disagreements at the edges. If the Bill ceases to be the Online Safety Bill and becomes the state regulation of the press Bill, it will become enormously controversial not just here but internationally.

That is my third point: the enormous global ramifications of seeking to use novel online legislation to force state-backed regulation on the press. The Crime and Courts Act 2013 and the establishment of the royal charter were roundly condemned by international press freedom organisations worldwide—the very same press freedom organisations we all claim to support when talking about the safety of journalists or the way in which the press is controlled in authoritarian regimes. Those same organisations condemned it utterly and they would look on with incredulity and horror if this, the first brave piece of legislation in the world to tackle online safety, was corrupted in this way and in a manner which sent the wrong signals to undemocratic regimes worldwide that it is okay to censor the press in the name of making the platforms accountable.

I was going to make a few comments about IPSO, which the noble Lord raised, but I see that the noble Lord, Lord Faulks, is in his place and I am sure he will make them much more effectively than I would.

The other general point is that this group of amendments flies in the face of the most fundamental Leveson recommendation. In his report, he stressed that it was essential that the system of self-regulation remained voluntary. What these proposals do is the antithesis of that. In effect, they hold a gun to the head of the industry and say, “Either you join a state-approved regulator, or you’re subject to the statutory control of Ofcom”. There is no voluntary element in that at all because either route ends up in a form of state regulation. That is Hobson’s choice.

Finally, as I have said to this House before, and I hoped I would never have to say again, the vast majority of the press will not under any circumstances join a regulator which is authorised by a state body and underpinned by the threat of legislation. Even Sir Brian Leveson said that he recognised that this was a matter of principle. That principle is that the press cannot be free if it is subject to any form of statutory control, however craftily concealed. That position has existed for many centuries and is threatened by the amendments. The reason for that is that if Amendment 126, and some of the others, went through, none of the major publishers at national, regional and local level, nor magazines, would be exempt from the terms of the Bill and would become subject to the statutory control of Ofcom—something that Ofcom has always made clear that it wants nothing to do with—and the prospect of unlimited penal sanctions. That is the end of a free press, by any definition.

I will very briefly discuss a few specifics. Amendment 124 seeks to bring the comments sections of basically all national newspaper websites within the Bill’s statutory regime. These are already regulated by IPSO, unless the noble Lord, Lord Faulks, corrects me, and they come under its jurisdiction as soon as a complaint is made to the publishers, even if they are not moderated. Unlike social media, which is entirely different in its reach and impact, editors are legally responsible for what appears on their websites, which is why in most cases there are strong content moderation procedures in place. That is why comments sections rightly fall within the limited functionality exemption in the Bill, because there is such limited scope for harm. The impact of Amendment 124 would be to introduce confusing and complex double regulation of comments sections on websites, to the detriment of the public who wish to engage in legitimate debate.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for his responses to the number of different issues that he has been asked about after he sat down, so to speak, which I think have been taken on board. I thank the noble Baronesses, Lady Gohir and Lady Grey-Thompson, and the noble Lord, Lord Allan, for their support for these amendments.

It is also a pleasure to see the noble Lord, Lord Black, who has clearly been lured out at this late hour—perhaps not so unwillingly; it gives him a chance to rehearse some of the arguments for the media Bill coming down the track. Along with the noble Lord, Lord Faulks, I am sure he will enjoy the media Bill when it comes. I had many happy hours sitting next door to the noble Lord, Lord Black, on the Joint Committee on the draft Bill, on which I may say that we agreed on most things.

But the fact is that one person’s strong exemptions is another person’s special privileges, and that very much applies in these circumstances as regards what I think the noble Baroness, Lady Fox, would call the mainstream media. I enjoyed what the noble Baroness had to say, because she came round to some kind of agreement at the end on what we might call mainstream media exceptionalism, which is a fair description. There is an element of cakeism about the way that the mainstream media seem to want to have it.

The Minister talked about low-risk services, and I think that was the reason why we had these questions asked about risk assessment. How does the Minister know that these below-the-line comments sections are low-risk unless a risk assessment has been made? We heard from the noble Baronesses, Lady Grey-Thompson and Lady Gohir, about the content of some of those comments sections. That does not sound low-risk to me at all, and I think that is the basis of their support for the amendments. When the Minister says it is not proportionate to regulate these comments sections, he is assuming they are low-risk services without much evidence. He threw a small bone by saying that sites can be held liable for illegal content, but that is a relatively small bone in those circumstances.

I took some comfort from the way that the noble Baroness, Lady Stowell, talked about the need for constant evaluation. Perish the thought, but we may well need an online safety Bill number 2; I just hope it is not too soon and that we have time for a little evaluation of how this Bill operates. That is why I am pretty keen that we should get this Bill into the best possible shape.

I thought what the noble Lord, Lord Knight, had to say about post-legislative scrutiny was very apposite, but the hour is late so I will not go through too many other aspects of this. This has been a good debate. I hope the media Bill is not déjà vu all over again, but we will see what happens when we get to it. In the meantime, I beg leave to withdraw the amendment.

Amendment 124 withdrawn.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Thursday 25th May 2023 Lords Chamber

My only caveat to this proposal relates to what the noble Lord, Lord Allan, said about the bad guys being banned and that, if they are banned, they might emerge somewhere else. We also need to recognise that sometimes people who are called the bad guys can be banned, and they are not the bad guys. They need to be able to say, “We’re not the bad guys”. That is why the more detail, the better. The only other caveat is that I do not want to be in a situation where we demand endless regulatory complexity and reports and impositions make life impossible for the services in terms of red tape and paperwork. That is my only caveat. Generally speaking, however, I am very positive about these amendments, and I hope that by Report they become, one way or another, part of the Bill.

[Lord Clement-Jones (LD)]

My Lords, I strongly support the amendment in the names of the noble Lords, Lord Knight and Lord Stevenson, as well as my noble friend Lady Featherstone. The essence of the message from the noble Lord, Lord Knight, about the need for trust and the fact that you can gain trust through greater transparency is fundamental to this group.

The Joint Committee’s report is now a historical document. It is partly the passage of time, but it was an extraordinary way in which to work through some of the issues, as we did. We were very impacted by the evidence given by Frances Haugen, and the fact that certain things came to light only as a result of her sharing information with the Securities and Exchange Commission. We said at the time that:

“Lack of transparency of service providers also means that people do not have insight into the prevalence and nature of activity that creates a risk of harm on the services that they use”.


That is very much the sense that the noble Lord, Lord Stevenson, is trying to get to by adding scope as well.

We were very clear about our intentions at the time. The Government accepted the recommendation that we made and said that they agreed with the committee that

“services with transparency reporting requirements should be required to publish their transparency reports in full, and in an accessible and public place”.

So what we are really trying to do is to get the Government to agree to what they have already agreed to, which we would have thought would be a relatively straightforward process.

There are some other useful aspects, such as the review of effectiveness of the transparency requirements. I very much appreciate what my noble friend just said about not reading transparency reports. I read the oversight reports but not necessarily the transparency reports. I am not sure that Frances Haugen was a great advert for transparency reports at the time, but that is a mere aside in the circumstances.

I commend my noble friend Lady Featherstone’s Amendment 171, which is very consistent with what we were trying to achieve with the code of practice about violence against women and girls. That would fit very easily within that. One of the key points that my noble friend Lord Allan made is that this is for the benefit of the platforms as well. It is not purely for the users. Of course it is useful for the users, but not exclusively, and this could be a way of platforms engaging with the users more clearly, inserting more fresh air into this. In these circumstances it is pretty conclusive that the Government should adhere to what they agreed to in their response to the Joint Committee’s report.

[The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)]

As ever, I thank all noble Lords who have spoken. I absolutely take, accept and embrace the point that transparency is wholly critical to what we are trying to achieve with the Bill. Indeed, the chandelier of transparency reports should be our shared aim—a greenhouse maybe. I am grateful for everyone’s contributions to the debate. I agree entirely with the views expressed. Transparency is vital in holding companies to account for keeping their users safe online. As has been pointed out, it is also to the benefit of the platforms themselves. Confident as I am that we share the same objectives, I would like to try to reassure noble Lords on a number of issues that have been raised.

Amendments 160A, 160B and 181A in the name of the noble Lord, Lord Knight of Weymouth, seek to require providers to make their transparency reports publicly available, subject to appropriate redactions, and to allow Ofcom to prevent their publication where it deems that the risks posed by drawing attention to illegal content outweigh the benefit to the public of the transparency report. Let me reassure the noble Lord that the framework, we strongly believe, already achieves the aim of those amendments. As set out in Clause 68, Ofcom will specify a range of requirements in relation to transparency reporting in a notice to categories 1, 2A and 2B. This will include the kind of information that is required in the transparency report and the manner in which it should be published. Given the requirement to publish the information, this already achieves the intention of Amendment 160A.

The specific information requested for inclusion within the transparency report will be determined by Ofcom. Therefore, the regulator will be able to ensure that the information requested is appropriate for publication. Ofcom will take into account any risks arising from making the information public before issuing the transparency notice. Ofcom will have separate information-gathering powers, which will enable the regulator to access information that is not suitable to be published in the public domain. This achieves the intention of Amendment 160B. There is also a risk of reducing trust in transparency reporting if there is a mechanism for Ofcom to prevent providers publishing their transparency reports.

Amendment 181A would require Ofcom to issue guidance on what information should be redacted and how this should be done. However, Ofcom is already required to produce guidance about transparency reports, which may include guidance about what information should be redacted and how to do this. It is important to provide the regulator with the flexibility to develop appropriate guidance.

Amendment 165 seeks to expand the information within the transparency reporting requirements to cover the scope of the terms of service set out by user-to-user providers. I very much agree with the noble Lord that it is important that Ofcom can request information about the scope of terms of service, as well as about their application. Our view is that the Bill already achieves this. Schedule 8 sets out the high-level matters about which information may be required. This includes information about how platforms are complying with their duties. The Bill will place duties on user-to-user providers to ensure that any required terms of service are clear and accessible. This will require platforms to set out what the terms of service cover—or, in other words, the scope. While I hope that this provides reassurance on the matter, if there are still concerns in spite of what I have said, I am very happy to look at this. Any opportunity to strengthen the Bill through that kind of clarity is worth looking at.

--- Later in debate ---

He was referring to journalistic sources. I have had a great number of journalists and their representatives reaching out to me, pointing to the terms used by the Minister. They have said that if those algorithms, searches or de-encryption tools are let loose, there is no way of being able to say, “That’s a bit of journalism, so the tool’s not going to apply to it”. That simply does not add up. The amendments in this group are getting into that much broader issue, so I look forward to hearing from the noble Lord, Lord Stevenson, on them.

[Lord Clement-Jones (LD)]

My Lords, this is the most miscellaneous of all the groups that we have had, so it has rightly been labelled as such—and the competition has been pretty strong. I want to come back to the amendments of the noble Lord, Lord Stevenson, and of the noble Lord, Lord Bassam, but first I want to deal with my Amendments 200 and 201 and to put on the record the arguments there.

Again, if I refer back to our joint report, we were strongly of the view—alongside the Communications and Digital Committee—that there should be a statutory requirement for regulators

“to cooperate and consult with one another”.

Although we welcomed the formation of the DRCF, it seemed to us that there should be a much firmer duty. I was pleased to hear the examples that my noble friend put forward of the kinds of co-operation that will be needed. The noble Baroness, Lady Morgan, clearly understands that, particularly in the area of fraud, it could be the FCA or ICO, and it could be Ofcom in terms in social media. There is a range of aspects to this—it could be the ASA.

These bodies need to co-operate. As my noble friend pointed out, they can apparently conflict; therefore, co-operating on the way that they advise those who are subject to regulation is rather important. It is not just about the members of the Digital Regulation Cooperation Forum. Even the IWF and the ASA could be included in that, not to mention other regulators in this analogous space. That forum has rightly been labelled as “Digital”, and digital business is now all-pervasive and involves a huge number of regulatory aspects.

Although in this context Ofcom will have the most relevant powers and expertise, and many regulators will look to it for help in tackling online safety issues, effective public protection will be achieved through proper regulatory co-operation. Therefore, Ofcom should be empowered to co-operate with others to share information. As much as it can, Ofcom should be enabled to work with other regulators and share online safety information with them.

It has been very heartening to see the noble Lord, Lord Grade, in his place, even on a Thursday afternoon, and heartening how Ofcom has engaged throughout the passage of the Bill. We know the skills that it is bringing on board, and with those skills we want it to bring other regulators into its work. It seems that Ofcom is taking the lead on those algorithmic understanding skills, but we need Ofcom to have the duty to co-operate with the other regulators on this as well.

Strangely, in Clause 103 the Bill gives Ofcom the general ability to co-operate with overseas regulators, but it is largely silent on co-operation with UK regulators. Indeed, the Communications Act 2003 limits the UK regulators with which Ofcom can share information, excluding the ICO, for example, which is rather perverse in these circumstances. However, the Bill has a permissive approach to overseas regulators so, again, it should extend co-operation and information-sharing in respect of online safety to include regulators overseeing the offences in Schedule 7 that we have spent some time talking about today—the enforcement authorities, for instance, those responsible for enforcing the offences in relation to priority harms to children and priority offences regarding adults. Elsewhere in regulation, the Financial Conduct Authority may have a general duty to co-operate. The reverse may be true, so that duty of co-operation will need to work both ways.

As my noble friend Lord Allan said, Amendment 200, the skilled persons provision, is very straightforward. It is just to give the formal power to be able to use the expertise from a different regulator. It is a very well-known procedure to bring skilled persons into inquiries, which is exactly what is intended there.

Both amendments tabled by the noble Lord, Lord Bassam, are rather miscellaneous too, but are not without merit, particularly Amendment 185A. Please note that I agree with the noble Baroness, Lady Fox. I 100% support the intention behind the amendment but wonder whether the Bill is the right vehicle for it. No doubt the Minister will answer regarding the scope and how practical it would be. I absolutely applaud the noble Lord for campaigning on this issue. It is extraordinarily important, because we have seen some tragic outcomes of these weapons being available for sale online.

Amendment 268AA, also tabled by the noble Lord, Lord Bassam, is entirely different. Our Joint Committee heard evidence from Edleen John of the FA and Rio Ferdinand about abuse online. It was powerful stuff. I tend to agree with my noble friend. We have talked about user empowerment, the tools for it and, particularly in the context of violence against women and girls, the need for a way to be able to report that kind of abuse or other forms of content online. This is a candidate for that kind of treatment. While platforms obviously need to prevent illegal content and have systems to prevent it and so on, having assessed risk in the way that we have heard about previously, I do not believe that expecting the platforms to pick it up and report it, turning them into a sort of proto-enforcer, is the most effective way. We have to empower users. I absolutely share the objectives set out.

[Lord Bassam of Brighton (Lab)]

My Lords, when I brought an amendment to a police Bill, my local football club said to me that it was anticipating spending something like £100,000 a year trying to create and develop filters, which were commercially available, to stop its footballers being able to see the abuse that they were getting online. It did that for a very sensible commercial reason because those footballers’ performance was affected by the abuse they got. I want to know how the noble Lord sees this working if not by having some form of intervention that involves the platforms. Obviously, there is a commercial benefit to providers of filters et cetera, but it is quite hard for those who have been victims to see a way to make this useful to them without some external form of support.

[Lord Clement-Jones (LD)]

I absolutely take what the noble Lord is saying, and I am not saying that the platforms do not have responsibility. Of course they do: the whole Bill is about the platforms taking responsibility with risk assessment, adhering to their terms of service, transparency about how those terms are operating, et cetera. It is purely on the question of whether they need to be reporting that content when it occurs. They have takedown responsibilities for illegal content or content that may be seen by children and so on, but it is about whether they have the duty to report to the police. It may seem a relatively narrow point, but it is quite important that we go with the framework. Many of us have said many times that we regret the absence of “legal but harmful” but, given where we are, we basically have to go with that architecture.

I very much enjoyed listening to the noble Baroness, Lady Bennett. There is no opportunity lost in the course of the Bill to talk about ChatGPT or GPT-4, and that was no exception. It means that we need to listen to how young people are responding to the way that this legislation operates. I am fully in favour of whatever mechanism it may be. It does not need to be statutory, but I very much hope that we do not treat this just as the end of the process but will see how the Bill works out and will listen and learn from experience, and particularly from young people who are particularly vulnerable to much of the content, and the way that the algorithms on social media work.

[Lord Stevenson of Balmacara (Lab)]

My Lords—

[Lord Clement-Jones (LD)]

I am so sorry. With due respect to the noble Lord, Lord Stevenson, the noble Baroness, Lady Bennett, reminded me that his Amendments 202ZA and 210A, late entrants into the miscellaneous group, go very much with the grain that we are trying to get in within the area of encryption. We had quite a long debate about encryption on Clause 110. As ever, the noble Lord has rather cunningly produced something that I think will get us through the eye of the free speech needle. They are two very cunning amendments.

[Lord Stevenson of Balmacara (Lab)]

I thank the noble Lord for that. Free expression, my Lords, not free speech.

[Lord Clement-Jones (LD)]

Freedom of expression.

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[Baroness Fox of Buckley (Non-Afl)]

I was suggesting that we have a bigger problem than it appearing on a small site. It quotes from mainstream media, but it ends up being broadly disseminated and not because it is on a small site. I am not advocating that we all go round carrying the manifestos of mass shooters and legitimising them. I was more making the point that it can be complicated. Would not the solution be that you can make appeals that a small site is treated differently? That is the way we deal with harmful material in general and the way we have dealt with, for example, RT as press without compromising on press freedom. That is the kind of point I am trying to make.

I understand lots of concerns but I do not want us to get into a situation where we destroy the potential of all smaller platforms—many of them doing huge amounts of social good, part of civil society and all the rest of it—by treating them as though they are large platforms. They just will not have the resources to survive, that is all my point is.

[Lord Clement-Jones (LD)]

My Lords, I am going to be extremely brief given the extremely compelling way that these amendments have been introduced by the noble Baroness, Lady Morgan, and the noble Lord, Lord Griffiths, and contributed to by the noble Baroness, Lady Bull. I thank her for her comments about my noble friend Lady Parminter. I am sure she would have wanted to be here and would have made a very valuable contribution as she did the other day on exactly this subject.

As the noble Baroness, Lady Fox, has illustrated, we have a very different view of risk across this Committee and we are back, in a sense, into that whole area of risk. I just wanted to say that I think we are again being brought back to the very wise words of the Joint Committee. It may sound like special pleading. We keep coming back to this, and the noble Lord, Lord Stevenson, and I are the last people standing on a Thursday afternoon.

We took a lot of evidence in this particular area. We took the trouble to go to Brussels and had a very useful discussion with the Centre on Regulation in Europe and Dr Sally Broughton Micova. We heard a lot about interconnectedness between some of these smaller services and the impact in terms of amplification across other social media sites.

We heard in the UK from some of the larger services about their concerns about the activities of smaller services. You might say “They would say that, wouldn’t they?” but they were pretty convincing. We heard from HOPE not Hate, the Antisemitism Policy Trust and Stonewall, stressing the role of alternative services.

Of course, we know that these amendments today—some of them sponsored by the Mental Health Foundation, as the noble Lord, Lord Griffiths, said, and Samaritans—have a very important provenance. They recognise that these are big problems. I hope that the Minister will think strongly about this. The injunction from the noble Lord, Lord Allan, to consider how all this is going to work in practice is very important. I very much hope that when we come to consider how this works in practical terms that the Minister will think very seriously about the way in which risk is to the fore— the more nuanced approach that we suggested—and the whole way that profiling by Ofcom will apply. I think that is going to be extremely important as well. I do not think we have yet got to the right place in the Bill which deals with these risky sites. I very much hope that the Minister will consider this in the quite long period between now and when we next get together.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a good little debate with some excellent speeches, which I acknowledge. Like the noble Lord, Lord Clement-Jones, I was looking at the Joint Committee’s report. I concluded that one of the first big issues we discussed was how complicated the categorisation seemed in relation to the task that was being set for Ofcom. We comforted ourselves with the thought that if you believe that this is basically a risk-assessment exercise and that all the work Ofcom will subsequently do is driven by its risk assessments and its constant reviewing of them, then the categorisation is bound to fall down because the risks will reveal the things that need to happen.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Thursday 22nd June 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, I support this group of amendments. I pay tribute to the families who I see are watching us as we debate this important group. I also pay tribute to my noble friend Lady Newlove, who has just given one of the most powerful speeches in the full 10 days of Committee.

The real sadness is that we are debating what happens when things go horribly wrong. I thank my noble friend the Minister and the Secretary of State, who is currently on leave, for the very collaborative way in which I know they have approached trying to find the right package—we are all waiting for him to stand up and speak to show us this. Very often, Governments do not want to give concessions early in the process of a Bill going through because they worry that those of us campaigning for concessions will then ask for more. In this case, as the noble Lord, Lord Russell, has just pointed to, all we are asking for in this Bill is to remember that a concession granted here helps only when things have gone horribly wrong.

As the noble Baroness, Lady Kidron, said, what we really want is a safer internet, where fewer children die. I reiterate the comments that she made at the end of her speech: as we have gone through Committee, we have all learned how interconnected the Bill is. It is fantastic that we will be able to put changes into it that will enable bereaved families not to have to follow the path that the Russells and all the other bereaved families campaigning for this had to follow—but that will not be enough. We also need to ensure that we put in place the safety-by-design amendments that we have been discussing. I argue that one of the most important is the one that the noble Lord, Lord Russell, has just referenced: when you already know that your child is in trouble but you cannot get help, unfortunately no one wants then to be able to say, “It’s okay. Bereaved families have what they need”. We need to do more than that.

[Lord Clement-Jones (LD)]

My Lords, this has been a very moving debate for a very important cause. I thank the noble Baroness, Lady Kidron, for introducing it in the way that she did, along with those who have spoken in the debate.

The good news is that this is very much a cross-party and cross-Bench debate. It clearly appears to be a concern that the Government share, and I appreciate that. I agree with the noble Baroness, Lady Harding, that it is not a weakness for the Government to concede here but very much the logic of where we have now got to. Compared with what is in the Joint Committee report on the draft Bill, what seems to be proposed—and I very much look forward to hearing what the Minister has to say—goes further than what we were proposing, so it may be that we have reached another milestone. However, we wait to hear the detail.

Like other noble Lords, I pay tribute to the bereaved parents. We heard from parents during our consideration of the draft Online Safety Bill and we have heard further since then, particularly as a result of the two notable inquests into the deaths of Frankie Thomas and Molly Russell, which highlighted the difficulties that families and coroners face. Both families talked about the additional toll on their mental health as they battle for information, and the impossibility of finding closure in the absence of answers.

The noble Baroness, Lady Newlove, said in her very moving speech that a humane process must be established for bereaved families and coroners to access data pertinent to the death of a child. That is what we have been seeking, and I pay tribute to the relentless way in which the noble Baroness, Lady Kidron, has pursued this issue on behalf of us all, supported by 5Rights and the NSPCC. We must have a transparent process in which bereaved families and coroners can access information from regulated services in cases where social media may have played a part in the death of a child.

My noble friend Lord Allan—who I am delighted is so plugged in to what could be the practical way of solving some of these issues—expertly described how Ofcom’s powers could and should be used and harnessed for this purpose. That very much goes with the grain of the Bill.

I shall repeat a phrase that the noble Baroness, Lady Kidron, used: the current situation is immoral and a failure of justice. We absolutely need to keep that in mind as we keep ourselves motivated to find the solution as soon as we possibly can. I look forward to good news from the Minister about the use of information notices for the purpose that has been heralded by the noble Baroness, Lady Kidron, but of course the devil is in the detail. We will obviously want to see the detail of the amendment well before Report.

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[Baroness Kidron (CB)]

My Lords, I will be even more direct than the noble Baroness, Lady Morgan, and seek some confirmation. I understood from our various briefings in Committee that, where content is illegal, it is illegal anywhere in the digital world—it is not restricted simply to user to user, search and Part 5. Can the Minister say whether I have understood that correctly? If I have, will he confirm that Ofcom will be able to use its disruption powers on a service out of scope, as it were, such as a blog or a game with no user-to-user aspect, if it were found to be persistently hosting illegal content?

[Lord Clement-Jones (LD)]

My Lords, this has been an interesting debate, though one of two halves, if not three.

The noble Lord, Lord Bethell, introduced his amendment in a very measured way. My noble friend Lady Benjamin really regrets that she cannot be here, but she strongly supports it. I will quote her without taking her speech entirely on board, as we have been admonished for that previously. She would have said that

“credit card companies have claimed ignorance using the excuse of how could they be expected to know they are supporting porn if they were not responsible for maintaining porn websites … This is simply not acceptable”.

Noble Lords must forgive me—I could not possibly have delivered that in the way that my noble friend would have done. However, I very much took on board what the noble Lord said about how this makes breaches transparent to the credit card companies. It is a right to be informed, not an enforcement power. The noble Lord described it as a simple and proportionate measure, which I think is fair. I would very much like to hear from the Minister why, given the importance of credit card companies in the provision of pornographic content, this is not acceptable to the Government.

The second part of this group is all about effective enforcement, which the noble Lord, Lord Bethell, spoke to as well. This is quite technical; it is really important that these issues have been raised, in particular by the noble Lord. The question is whether Ofcom has the appropriate enforcement powers. I was very taken by the phrase

“pre-empt a possible legal challenge”,

as it is quite helpful to get your retaliation in first. Underlying all this is that we need to know what advice the Minister and Ofcom are getting about the enforcement powers and so on.

I am slightly more sceptical about the amendments from the noble Lord, Lord Curry. I am all in favour of the need for speed in enforcement, particularly having argued for it in competition cases, where getting ex-ante powers is always a good idea—the faster one can move, the better. However, restricting the discretion of Ofcom in those circumstances seems to me a bit over the top. Many of us have expressed our confidence in Ofcom as we have gone through the Bill. We may come back to this in future; none of us thinks the Bill will necessarily be the perfect instrument, and it may prove that we do not have a sufficiently muscular regulator. I entirely respect the noble Lord’s track record and experience in regulation, but Ofcom has so far given us confidence that it will be a muscular regulator.

I turn now to the third part of the group. I was interested in the context in which my noble friend placed enforcement; it is really important and supported by the noble Baroness, Lady Morgan. It is interesting what questions have been asked about the full extent of the Government’s ambitions in this respect: are VPNs going to be subject to these kinds of notices? I would hope so; if VPNs are really the gateway to some of the unacceptable harms that we are trying to prevent, we should know about that. We should be very cognisant of the kind of possible culture being adopted by some of the social media and regulated services, and we should tailor our response accordingly. I will be interested to hear what the Government have to say on that.

[Baroness Merron (Lab)]

My Lords, I am grateful to the noble Lords, Lord Bethell, Lord Curry and Lord Allan for introducing their amendments, to the noble Baroness, Lady Morgan, for her direct question, and to the noble Baroness, Lady Kidron, for her equally direct question. I am sure they will be of great assistance to the Minister when he replies. I will highlight the words of the noble Lord, Lord Allan, who said “We are looking for services to succeed”. I think that is right, but what is success? It includes compliance and enforcement, and that is what this group refers to.

The amendments introduced by the noble Lord, Lord Bethell, seek to strengthen what is already in the Bill about Ofcom’s Chapter 6 powers of enforcement, otherwise known as business disruption powers, and they focus on what happens in the event of a breach; they seek to be more prescriptive than what we already have. I am sure the Minister will remember that the same issue came up in the Digital Economy Bill, around the suggestion that the Government should take specific powers. There, the Government argued they had assurances from credit card companies that, if and when action was required, they would co-operate. In light of that previous discussion, it will be interesting to hear what the Minister has to say.

In respect of the amendments introduced by the noble Lord, Lord Curry, on the need to toughen up requirements on Ofcom to act, I am sure the Minister will say that these powers are not required and that the Bill already makes provision for Ofcom blocking services which are failing in their duties. I echo the concern of the noble Lord, Lord Clement-Jones, about being overly prescriptive and not allowing Ofcom to do its job. The truth is that Ofcom may need discretion but it also needs teeth, and I will be interested to hear what the Minister has to say about whether he feels, in the light of the debate today and other conversations, that there is sufficient toughness in the Bill and that Ofcom will be able to do the job it is required to do. There is an issue of the balance of discretion versus requirement, and I know he will refer to this. I will also be interested to hear from the Minister about the view of Ofcom with respect to what is in the Bill, and whether it feels that it has sufficient powers.

I will raise a final point about the amendments in the name of the noble Lord, Lord Curry. I think they ask a valid question about the level of discretion that Ofcom will have. I ask the Minister this: if, a few years down the line, we find that Ofcom has not used the powers suitably, despite clear failures, what would the Government seek to do? With that, I look forward to hearing from the Minister.

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[Lord Parkinson of Whitley Bay (Con)]

When I saw the noble Lord, Lord Foster of Bath, and the noble Baroness, Lady Armstrong of Hill Top, in their places, I wondered whether they were intending to raise these points. I will certainly take on board what the noble Lord says and, if there is further information I can furnish your Lordships with, I certainly will.

The noble Baroness, Lady Kidron, asked whether the powers can be used on out-of-scope services. “No” is the direct answer to her direct question. The powers can be used only in relation to regulated services, but if sites not regulated by the Bill are publishing illegal content, existing law enforcement powers—such as those frequently deployed in cases of copyright infringement—can be used. I could set out a bit more in writing if that would be helpful.

My noble friend Lord Bethell’s amendments seek to set out in the Bill that Ofcom will be able to make a single application to the courts for an order enabling business disruption measures that apply against multiple platforms and operators. I must repeat, as he anticipated, the point made by my right honourable friend Chris Philp that the civil procedure rules allow for a multi-party claim to be made. These rules permit any number of claimants or defendants and any number of claims to be covered by one claim form. The overriding objective of the civil procedure rules is that cases are dealt with justly and proportionately. I want to reassure my noble friend that the Government are confident that the civil procedure rules will provide the necessary flexibility to ensure that services can be blocked or restricted.

The amendment in the name of the noble Lord, Lord Allan of Hallam, seeks to clarify what services might be subject to access restriction orders by removing the two examples provided in the Bill: internet access services and application stores. I would like to reassure him that these are simply indicative examples, highlighting two kinds of service on which access restriction requirements may be imposed. It is not an exhaustive list. Orders could be imposed on any services that meet the definition—that is, a person who provides a facility that is able to withdraw, adapt or manipulate it in such a way as to impede access to the regulated service in question. This provides Ofcom with the flexibility to identify where business disruption measures should be targeted, and it future-proofs the Bill by ensuring that the power remains functional and effective as technologies develop.

As the noble Lord highlighted, these are significant powers that can require that services be blocked in the UK. Clearly, limiting access to services in this way substantially affects the business interests of the service in question and the interests of the relevant third-party service, and it could affect users’ freedom of expression. It is therefore essential that appropriate safeguards are included and that due process is followed. That is why Ofcom will be required to seek a court order to be able to use these powers, ensuring that the courts have proper oversight.

To ensure that due process is upheld, an application by the regulator for a court order will have to specify the non-compliant provider, the grounds of the order and the steps that Ofcom considers should be imposed on the third parties in order to withdraw services and block users’ access. These requirements will ensure that the need to act quickly to tackle harm is appropriately balanced against upholding fundamental rights.

It might be useful to say a little about how blocking works—

[Lord Clement-Jones (LD)]

Before the Minister does that, can he say whether he envisages that operating against VPNs as well?

[Lord Parkinson of Whitley Bay (Con)]

If I may, I will take advice on that and write to the noble Lord.

[Lord Clement-Jones (LD)]

That would be useful.

[Lord Parkinson of Whitley Bay (Con)]

Yes; he made a helpful point, and I will come back on it.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Thursday 22nd June 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, I, too, support Amendments 233 and 234, and Amendment 233A, from the noble Lord, Lord Allan. As the noble Baroness, Lady Kidron, said, it has been made clear in the past 10 days of Committee that there is a role for every part of society to play to make sure that we see the benefits of the digital world but also mitigate the potential harms. The role that researchers and academics can play in helping us understand how the digital world operates is critical—and that is going to get ever more so as we enter a world of large language models and AI. Access to data in order to understand how digital systems and processes work will become even more important—next week, not just in 10 years’ time.

My noble friend Lord Bethell quite rightly pointed out the parallels with other regulators, such as the MHRA and the Bank of England. A number of people are now comparing the way in which the MHRA and other medical regulators regulate the development of drugs with how we ought to think about the emergence of regulation for AI. This is a very good read-across: we need to set the rules of the road for researchers and ensure, as the noble Baroness, Lady Kidron, said—nailing it, as usual—that we have the most transparent system possible, enabling people to conduct their research in the light, not in the grey zone.

[Lord Clement-Jones (LD)]

My Lords, as the noble Baroness, Lady Kidron, said, clearly, transparency is absolutely one of the crucial elements of the Bill. Indeed, it was another important aspect of the Joint Committee’s report. Like the noble Lord, Lord Knight—a fellow traveller on the committee—and many other noble Lords, I much prefer the reach of Amendments 233 and 234, tabled by the noble Lord, Lord Bethell, to Amendment 230, the lead amendment in this group.

We strongly support amendments that aim to introduce a duty for regulated platforms to enable access by approved independent researchers to information and data from regulated services, under certain conditions. Of course, there are arguments for speeding up the process under Clause 146, but this is really important because companies themselves currently decide who accesses data, how much of it and for what purposes. Only the companies can see the full picture, and the effect of this is that it has taken years to build a really solid case for this Online Safety Bill. Without a greater level of insight, enabling quality research and harm analysis, policy-making and regulatory innovation will not move forward.

I was very much taken by what the noble Baroness, Lady Harding, had to say about the future in terms of the speeding up of technological developments in AI, which inevitably will make the opening up of data, and research into it, of greater and greater importance. Of course, I also take extremely seriously my noble friend’s points about the need for data protection. We are very cognisant of the lessons of Cambridge Analytica, as he mentioned.

It is always worth reading the columns of the noble Lord, Lord Hague. He highlighted this issue last December, in the Times. He said:

“Social media companies should be required to make anonymised data available to third-party researchers to study the effect of their policies. Crucially, the algorithms that determine what you see—the news you are fed, the videos you are shown, the people you meet on a website—should not only be revealed to regulators but the choices made in crafting them should then be open to public scrutiny and debate”.


Those were very wise words. The status quo leaves transparency in the hands of big tech companies with a vested interest in opacity. The noble Lord, Lord Knight, mentioned Twitter announcing in February that it would cease allowing free research access to its application programming interface. It is on a whim that a billionaire owner can decide to deny access to researchers.

I much prefer Amendment 233, which would enable Ofcom to appoint an approved independent researcher. The Ofcom code of practice proposed in Amendment 234 would be issued for researchers and platforms, setting out the procedures for enabling access to data. I take the point made by the noble Baroness, Lady Fox, about who should be an independent accredited researcher, but I hope that that is exactly the kind of thing that a code of practice would deal with.

Just as a little contrast, Article 40 of the EU’s Digital Services Act gives access to data to a broad range of researchers—this has been mentioned previously—including civil society and non-profit organisations dedicated to public interest research. The DSA sets out in detail the framework for vetting and access procedures, creating an explicit role for new independent supervisory authorities. This is an example that we could easily follow.

The noble Lord, Lord Bethell, mentioned the whole question of skilled persons. Like him, I do not believe that this measure is adequate as a substitute for what is contained in Amendments 233 and 234. It will be a useful tool for Ofcom to access external expertise on a case-by-case basis but it will not provide for what might be described as a wider ecosystem of inspection and analysis.

The noble Lord also mentioned the fact that internet companies should not regard themselves as an exception. Independent scrutiny is a cornerstone of the pharmaceutical, car, oil, gas and finance industries. They are open to scrutiny from research; we should expect that for social media as well. Independent researchers are already given access in many other circumstances.

The case for these amendments has been made extremely well. I very much hope to see the Government, with the much more open approach that they are demonstrating today, accept the value of these amendments.

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[Lord Parkinson of Whitley Bay (Con)]

We are watching with interest what is happening in other jurisdictions. If I can furnish the Committee with any information in the area the noble Lord mentions, I will certainly follow up in writing.

[Lord Clement-Jones (LD)]

I have a question, in that case, in respect of the jurisdictions. Why should we have weaker powers for our regulator than others?

[Lord Parkinson of Whitley Bay (Con)]

I do not think that we do. We are doing things differently. Of course, Ofcom will be looking at all these matters in its report, and I am sure that Parliament will have an ongoing interest in them. As jurisdictions around the world continue to grapple with these issues, I am sure that your Lordships’ House and Parliament more broadly will want to take note of those developments.

[Lord Clement-Jones (LD)]

But surely, there is no backstop power. There is the review but there is no backstop which would come into effect on an Ofcom recommendation, is there?

[Lord Parkinson of Whitley Bay (Con)]

We will know once Ofcom has completed its research and examination of these complex issues; we would not want to pre-judge its conclusions.

[Lord Clement-Jones (LD)]

Again, that would require primary legislation.

[Lord Parkinson of Whitley Bay (Con)]

With that, if there are no further questions, I invite the noble Lord to withdraw his amendment.

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[Lord Clement-Jones (LD)]

My Lords, I congratulate the noble Baroness on having elucidated this arcane set of amendments. Unfortunately, though, it makes me deeply suspicious when I see what the amendments seem to do. I am not entirely clear about whether we are returning to some kind of merits-based appeal. If so, since the main litigators are going to be the social media companies, it will operate for their benefit to reopen every single thing that they possibly can on the basis of the original evidence that was taken into account by Ofcom, as opposed to doing it on a JR basis. It makes me feel quite uncomfortable if it is for their benefit, because I suspect it is not going to be for the ordinary user who has been disadvantaged by a social media company. I hope our brand spanking new independent complaints system—which the Minister will no doubt assure us is well on the way—will deal with that, but this strikes me as going a little too far.

[Baroness Kidron (CB)]

My Lords, I enter the fray with some trepidation. In a briefing, Carnegie, which we all love and respect, and which has been fantastic in the background in Committee days, shared some concerns. As I interpret its concerns, when Ofcom was created in 2003 its decisions could be appealed on their merits, as the noble Lord has just suggested, to the Competition Appeal Tribunal, and I believe that this was seen as a balancing measure against an untested regime. What followed was that the broad basis on which appeal was allowed led to Ofcom defending 10 appeals per year, which really frustrated its ability as a regulator to take timely decisions. It turned out that the appeals against Ofcom made up more than 80% of the workload of the Competition Appeal Tribunal, whose work was supposed to cover a whole gamut of matters. When there was a consultation in the fringes of the DEA, it was decided to restrict appeal to judicial review and appeal on process. I just want to make sure that we are not opening up a huge and unnecessary delaying tactic.

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Moved by

[Lord Clement-Jones]

264A: Clause 160, page 138, line 10, at end insert “including (but not necessarily) by making use of a stolen identity, credit card or national insurance number,”
Member’s explanatory statement
This amendment, together with the amendment to page 138, line 12 to which Lord Clement-Jones has added his name, seeks to probe the creation of a specific criminal offence of identity theft.

[Lord Clement-Jones (LD)]

My Lords, even by the standards of this Bill, this is a pretty diverse group of amendments. I am leading the line with an amendment that does not necessarily fit with much of the rest of the group, except for Amendment 266, which the noble Baroness, Lady Buscombe, will be speaking to. I look forward to hearing her speak.

This amendment is designed to probe the creation of a new offence of identity theft in Clause 160. As I argued in my evidence to the consultation on digital identity and attributes in 2021, a new offence of identity theft is required. Under the Fraud Act 2006, the Identity Documents Act 2010, the Forgery and Counterfeiting Act 1981, the Computer Misuse Act 1990 and the Data Protection Act 2018 there are currently the offences of fraud using a false identity, document theft, forging an identity, unauthorised computer access and data protection offences respectively, but no specific crime of digital identity theft.

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[Lord Parkinson of Whitley Bay (Con)]

Yes, we will ensure that, in looking at this in the context of Scots law, we have the opportunity to see what is being done there and that we are satisfied that all the scenarios are covered. In relation to the noble Baroness’s Amendment 268, the intentional encouragement or assistance of a criminal offence is already captured under Sections 44 to 46 of the Serious Crime Act 2007, so I hope that that satisfies her that that element is covered—but we will certainly look at all of this.

I turn to government Amendment 268AZA, which introduces the new serious self-harm offence, and Amendments 268AZB and 268AZC, tabled by the noble Lords, Lord Allan and Lord Clement-Jones. The Government recognise that there is a gap in the law in relation to the encouragement of non-fatal self-harm. The new offence will apply to anyone carrying out an act which intends to, and is capable of, encouraging or assisting another person seriously to self-harm by means of verbal or electronic communications, publications or correspondence.

I say to the noble Baroness, Lady Finlay of Llandaff, that the new clause inserted by Amendment 268AZA is clear that, when a person sends or publishes a communication that is an offence, it is also clear that, when a person forwards on another person’s communication, that will be an offence too. The new offence will capture only the most serious behaviour and avoid criminalising vulnerable people who share their experiences of self-harm. The preparation of these clauses was informed by extensive consultation with interested groups and campaign bodies. The new offence includes two key elements that constrain the offence to the most culpable offending; namely, that a person’s act must be intended to encourage or assist the serious self-harm of another person and that serious self-harm should amount to grievous bodily harm. If a person does not intend to encourage or assist serious self-harm, as will likely be the case with recovery and supportive material, no offence will be committed. The Law Commission looked at this issue carefully, following evidence from the Samaritans and others, and the implementation will be informed by an ongoing consultation as well.

[Lord Clement-Jones (LD)]

I am sorry to interrupt the Minister, but the Law Commission recommended that the DPP’s consent should be required. The case that the Minister has made on previous occasions in some of the consultations that he has had with us is that this offence that the Government have proposed is different from the Law Commission one, and that is why they have not included the DPP’s consent. I am rather baffled by that, because the Law Commission was talking about a high threshold in the first place, and the Minister is talking about a high threshold of intent. Even if he cannot do so now, it would be extremely helpful to tie that down. As the noble Baroness and my noble friend said, 130 organisations are really concerned about the impact of this.

[Lord Parkinson of Whitley Bay (Con)]

The Law Commission recommended that the consent, but not the personal consent, of the Director of Public Prosecutions should be required. We believe, however, that, because the offence already has tight parameters due to the requirement for an intention to cause serious self-harm amounting to grievous bodily harm, as I have just outlined, an additional safeguard of obtaining the personal consent of the Director of Public Prosecutions is not necessary. We would expect the usual prosecutorial discretion and guidance to provide sufficient safeguards against inappropriate prosecutions in this area. As I say, we will continue to engage with those groups that have helped to inform the drafting of these clauses as they are implemented to make sure that that assessment is indeed borne out.

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[Lord Parkinson of Whitley Bay (Con)]

If my noble friend will forgive me, I had better refresh my memory of what he said—it was some time ago—and follow up in writing.

[Lord Clement-Jones (LD)]

My Lords, I will be extremely brief. There is much to chew on in the Minister’s speech and this was a very useful debate. Some of us will be happier than others; the noble Baroness, Lady Buscombe, will no doubt look forward to the digital markets Bill and I will just have to keep pressing the Minister on the Data Protection and Digital Information Bill.

There is a fundamental misunderstanding about digital identity theft. It will not necessarily always be fraud that is demonstrated—the very theft of the identity is designed to be the crime, and it is not covered by the Fraud Act 2006. I am delighted that the Minister has agreed to talk further with the noble Baroness, Lady Kennedy, because that is a really important area. I am not sure that my noble friend will be that happy with the response, but he will no doubt follow up with the Minister on his amendments.

The Minister made a very clear statement on the substantive aspect of the group, the new crime of encouraging self-harm, but further clarification is still needed. We will look very carefully at what he said in relation to what the Law Commission recommended, because it is really important that we get this right. I know that the Minister will talk further with the noble Baroness, Lady Finlay, who is very well versed in this area. In the meantime, I beg leave to withdraw my amendment.

Amendment 264A withdrawn.

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[Lord Knight of Weymouth (Lab)]

My Lords, that was a bravura performance by the noble Lord, Lord Lexden. We thank him. To those listening in the Public Gallery, I should say that we debated most of those; it was not quite as on the nod as it looked.

Amendment 286ZA, in the name of my noble friend Lord Stevenson, seeks to address a critical issue in our digital landscape: the labelling of AI-generated content on social media platforms.

As we navigate the ever-evolving world of technology, it is crucial that we uphold a transparency safeguarding the principles of honesty and accountability. Social media has become an integral part of our lives, shaping public discourse, disseminating information and influencing public opinion. However, the rise of AI-powered algorithms and tools has given rise to a new challenge: an increasing amount of content generated by artificial intelligence without explicit disclosure.

We live in an age where AI is capable of creating incredibly realistic text, images and even videos that can be virtually indistinguishable from those generated by humans. While this advancement holds immense potential, it also raises concerns regarding authenticity, trust and the ethical implications of AI-generated content. The proposed amendment seeks to address this concern by advocating for a simple but powerful solution—labelling AI-generated content as such. By clearly distinguishing human-generated content from AI-generated content, we empower individuals to make informed decisions about the information they consume, promoting transparency and reducing the potential for misinformation or manipulation.

Labelling AI-generated content serves several crucial purposes. First and foremost, it allows individuals to differentiate between information created by humans and that generated by algorithms in an era where misinformation and deep fakes pose a significant threat to public trust. Such labelling becomes a vital tool to protect and promote digital literacy.

Secondly, it enables users to better understand the potential biases and limitations of AI-generated content. AI algorithms are trained on vast datasets, and without labelling, individuals might unknowingly attribute undue credibility to AI-generated information, assuming it to be wholly objective and reliable. Labelling, however, helps users to recognise the context and provides an opportunity for critical evaluation.

Furthermore, labelling AI-generated content encourages responsible behaviour from the platforms themselves. It incentivises social media companies to develop and implement AI technologies with integrity and transparency, ensuring that users are aware of the presence and influence of AI in their online experiences.

Some may argue that labelling AI-generated content is an unnecessary burden or that it could stifle innovation. However, the intention behind this amendment is not to impede progress but to foster a healthier digital ecosystem built on trust, integrity and informed decision-making. By promoting transparency, we can strike a balance that allows innovation to flourish while safeguarding the interests of individuals and society as a whole.

In conclusion, the amendment to label AI-generated content on social media platforms represents a crucial step forward in addressing the challenges of the digital age. By embracing transparency and empowering individuals, we can foster a more informed and discerning society. Let us lead by example and advocate for a digital landscape that values accountability, integrity and the rights of individuals. I urge your Lordships to support this amendment as we strive to build a future where technology works hand-in-hand with humanity for the betterment of all.

In the spirit of the amendment, I must flag that my entire speaking note was generated by AI, as the noble Lord, Lord Allan, from his expression, had clearly guessed. In using this tool, I do so not to belittle the amendment but to illustrate that these tools are already infiltrating everyday life and can supercharge misinformation. We need to do something to ease internet users in trusting what they read.

[Lord Clement-Jones (LD)]

Does the noble Lord agree that the fact that we did not notice his speech was generated by AI somewhat damages his argument?

[Lord Knight of Weymouth (Lab)]

The fact that I labelled it as being AI-generated helped your Lordships to understand, and the transparency eases the debate. I beg to move.

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[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Allan. He reminded me of significant reports of the huge amount of exploitation in the digital sector that has come from identification of photos. A great deal of that is human labour, even though it is often claimed to have been done through machine intelligence.

In speaking to this late but important amendment, I thank the noble Lords, Lord Stevenson and Lord Knight, for giving us the chance to do so, because, as every speaker has said, this is really important. I should declare my position as a former newspaper editor. I distinctly recall teasing a sports journalist in the early 1990s when it was reported that journalists were going to be replaced by computer technology. I said that the sports journalists would be the first to go because they just wrote to a formula anyway. I apologise to sports journalists everywhere.

The serious point behind that is that a lot of extreme, high claims are now being made about so-called artificial intelligence. I declare myself an artificial-intelligence sceptic. What we have now—so-called generative AI—is essentially big data. To quote the science fiction writer, Ted Chiang, what we have is applied statistics. Generative AI relies on looking at what already exists, and it cannot produce anything original. In many respects, it is a giant plagiarism machine. There are huge issues, beyond the scope of the Bill, around intellectual property and the fact that it is not generating anything original.

None the less, it is generating what people in the sector like to describe as hallucinations, which might otherwise be described as errors, falsehoods or lies. This is where quotes are made up; ideas are presented which, at first glance, look as though they make sense but fall apart under examination; and data is actively invented. There is one rather famous case where a lawyer got himself into a great deal of trouble by producing a whole lot of entirely false cases that a bot generated for him. We need to be really careful, and this amendment shows us a way forward in attempting to deal with some of the issues we are facing.

To pick up the points made by the noble Lord, Lord Allan, about the real-world impacts, I was at an event in Parliament this week entitled “The Worker Experience of the AI Revolution”, run by the TUC and Connected by Data. It highlighted what has happened with a lot of the big data exercises already in operation: rather than humans being replaced by robots, people are being forced to act like robots. We heard from Royal Mail and Amazon workers, who are monitored closely and expected to act like machines. That is just one example of the unexpected outcomes of the technologies we have been exercising in recent years.

I will make two final comments. First, I refer to 19th-century Luddite John Booth, who was tortured to death by the state. He was a Luddite, but he was also on the record as saying that new machinery

“might be man’s chief blessing instead of his curse if society were differently constituted”.

History is not pre-written; it is made by the choices, laws and decisions we make in this Parliament. Given where we are at the moment with so-called AI, I urge that caution really is warranted. We should think about putting some caution in the Bill, which is what this amendment points us towards.

My final point relates to an amendment I was not allowed to table because, I was told, it was out of scope. It asked the Secretary of State to report on the climate emissions coming from the digital sector, specifically from artificial intelligence. The noble Baroness, Lady Kidron, said that it will operate on a vast scale. I point out that, already, the digital sector is responsible for 3% of the world’s electricity use and 2% of the world’s carbon emissions, which is about the same as the airline sector. We really need to think about caution. I very much agree with everyone who said that we need to have more discussions on all these issues before Report.

[Lord Clement-Jones (LD)]

My Lords, this is a real hit-and-run operation from the noble Lord, Lord Stevenson. He has put down an amendment on my favourite subject in the last knockings of the Bill. It is totally impossible to deal with this now—I have been thinking and talking about the whole area of AI governance and ethics for the past seven years—so I am not going to try. It is important, and the advisory committee under Clause 139 should take it into account. Actually, this is much more a question of authenticity and verification than of content. Trying to work out whether something is ChatGPT or GPT-4 content is a hopeless task; you are much more likely to be able to identify whether these are automated users such as chatbots than you are to know about the content itself.

I will leave it there. I missed the future-proofing debate, which I would have loved to have been part of. I look forward to further debates with the noble Viscount, Lord Camrose, on the deficiencies in the White Paper and to the Prime Minister’s much more muscular approach to AI regulation in future.

[Lord Parkinson of Whitley Bay (Con)]

I am sure that the noble Lord, Lord Stevenson of Balmacara, is smiling over a sherry somewhere about the debate he has facilitated. His is a useful probing amendment and we have had a useful discussion.

The Government certainly recognise the potential challenges posed by artificial intelligence and digitally manipulated content such as deepfakes. As we have heard in previous debates, the Bill ensures that machine-generated content on user-to-user services created by automated tools or machine bots will be regulated where appropriate. Clause 49(4)(b) means that machine-generated content is regulated unless the bot or automated tool producing the content is controlled by the provider of the service.

The labelling of this content via draft legislation is not something to which I can commit today. The Government’s AI regulation White Paper sets out the principles for the responsible development of artificial intelligence in the UK. These principles, such as safety, transparency and accountability, are at the heart of our approach to ensuring the responsible development and use of AI. As set out in the White Paper, we are building an agile approach that is designed to be adaptable in response to emerging developments. We do not wish to introduce a rigid, inflexible form of legislation for what is a flexible and fast-moving technology.

The public consultation on these proposals closed yesterday so I cannot pre-empt our response to it. The Government’s response will provide an update. I am joined on the Front Bench by the Minister for Artificial Intelligence and Intellectual Property, who is happy to meet with the noble Baroness, Lady Kidron, and others before the next stage of the Bill if they wish.

Beyond labelling such content, I can say a bit to make it clear how the Bill will address the risks coming from machine-generated content. The Bill already deals with many of the most serious and illegal forms of manipulated media, including deepfakes, when they fall within scope of services’ safety duties regarding illegal content or content that is potentially harmful to children. Ofcom will recommend measures in its code of practice to tackle such content, which could include labelling where appropriate. In addition, the intimate image abuse amendments that the Government will bring forward will make it a criminal offence to send deepfake images.

In addition to ensuring that companies take action to keep users safe online, we are taking steps to empower users with the skills they need to make safer choices through our work on media literacy. Ofcom, for example, has an ambitious programme of work through which it is funding several initiatives to build people’s resilience to harm online, including initiatives designed to equip people with the skills to identify disinformation. We are keen to continue our discussions with noble Lords on media literacy and will keep an open mind on how it might be a tool for raising awareness of the threats of disinformation and inauthentic content.

With gratitude to the noble Lords, Lord Stevenson and Lord Knight, and everyone else, I hope that the noble Lord, Lord Knight, will be content to withdraw his noble friend’s amendment.

--- Later in debate ---

[Baroness Kidron (CB)]

My Lords, we already had a long debate on this subject earlier in Committee. In the interim, many noble Lords associated with these amendments have had conversations with the Government, which I hope will bear some fruit before Report. Today, I want to reiterate a few points that I hope are clarifying to the Committee and the department. In the interests of everyone’s evening plans, the noble Lord, Lord Bethell, and the noble Baroness, Lady Harding, wish to associate themselves with these remarks so that they represent us in our entirety.

For many years, we thought age verification was a gold standard, primarily because it involved a specific government-issued piece of information such as a passport. By the same token, we thought age estimation was a lesser beast, given that it is an estimate by its very nature and that the sector primarily relied on self-declarations with very few checks and balances. In recent years, many approaches to age checking have flourished. Some companies provide age assurance tokens based on facial recognition; others use multiple signals of behaviour, friendship group, parental controls and how you move your body in gameplay; and, only yesterday, I saw the very impressive on-device privacy-preserving age-verification system that Apple rolled out in the US two weeks ago. All of these approaches, used individually and cumulatively, have a place in the age-checking ecosystem, and all will become more seamless over time. But we must ensure that, when they are used, they are adequate for the task they are performing and are quality controlled so that they do not share information about a child, are secure and are effective.

That is why, at the heart of the package of measures put forward in my name and that of the noble Lords, Lord Stevenson and Lord Bethell, and the right reverend Prelate the Bishop of Oxford, are two concepts. First, the method of measuring age should be tech neutral so that all roads can be used. Secondly, there must be robust mechanism of measurement of effectiveness so that only effective systems can be used in high-risk situations, particularly those of primary priority harms such as self-harm and pornography, and that such a measurement will be determined by Ofcom, not industry.

From my work over the last decade and from recent discussion with industry, I am certain that any regime of age assurance must be measurable and hold to certain principles. We cannot create a situation where children’s data is loosely held and liberally shared; we cannot have a system that discriminates against, or does not have automatic appeal mechanisms for, children of colour or those who are 17 or 19, who are at most likelihood of error. Systems should aim to be interoperable and private, not leave traces as children go from one service to another.

Each of the principles of our age-verification package set out in the schedule are of crucial importance. I hope that the Government will see the sense in that because, without them, this age checking will not be trusted. Equally, I urge the Committee to embrace the duality of age verification and estimation that the Government have put forward, because, if a child uses an older sibling’s form of verification and a company understands through the child’s behaviour that they are indeed a child, then we do not want to set up a perverse situation in which the verification is considered of a higher order and they cannot take action based on estimation; ditto, if estimation in gameplay is more accurate than tokens that verify whether someone is over or under 18, it may well be that estimation gives greater assurance that the company will treat the child according to their age.

I hope and believe that, in his response, the Minister will confirm that definitions of age assurance and age estimation will be on the face of the Bill. I also urge him to make a generous promise to accept the full gamut of our concerns about age checking and bring forward amendments in his name on Report that reflect them in full. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I associate these Benches with the introduction by the noble Baroness, Lady Kidron, support her amendments and, likewise, hope that they form part of the package that is trundling on its way towards us.

[Lord Knight of Weymouth (Lab)]

My Lords, what more can I say than that I wish to be associated with the comments made by the noble Baroness and then by the noble Lord, Lord Clement-Jones? I look forward to the Minister’s reply.

Online Safety Bill

Lord Clement-Jones Excerpts

Report stage
Thursday 6th July 2023 Lords Chamber

[Lord Moylan (Con)]

My Lords, I am grateful to my noble friend the Minister for the meeting that he arranged with me and the noble Baroness, Lady Fox of Buckley, on Monday of this week.

Although we are on Report, I will start with just one preliminary remark of a general character. The more closely one looks at this Bill, the clearer it is that it is the instrument of greatest censorship that we have introduced since the liberalisation of the 1960s. This is the measure with the greatest capacity for reintroducing censorship. It is also the greatest assault on privacy. These principles will inform a number of amendments that will be brought forward on Report.

Turning now to the new clause—I have no particular objection to there being an introductory clause—it is notable that it has been agreed by the Front Benches and by the noble Baroness, Lady Kidron, but that it has not been discussed with those noble Lords who have spoken consistently and attended regularly in Committee to speak up in the interests of free speech and privacy. I simply note that as a fact. There has been no discussion about it with those who have made those arguments.

Now, it is true that the new clause does refer to both free speech and privacy, but it sounds to me very much as though these are written almost as add-ons and afterthoughts. We will be testing, as Report stage continues, through a number of amendments, whether that is in fact the case or whether that commitment to free speech and privacy is actually being articulated and vindicated in the Bill.

[Lord Clement-Jones (LD)]

My Lords, needless to say, I disagree with what the noble Lord, Lord Moylan, has just been saying precisely because I believe that the new clause that the Minister has put forward, which I have signed and has support across the House, expresses the purpose of the Bill in the way that the original Joint Committee wanted. I pay tribute to the Minister, who I know has worked extremely hard, in co-operation with the noble Lord, Lord Stevenson of Balmacara, to whom I also pay tribute for getting to grips with a purpose clause. The noble Baronesses, Lady Kidron and Lady Harding, have put their finger on it: this is more about activity and design than it is about content, and that is the reason I fundamentally disagree with the noble Lord, Lord Moylan. I do not believe that will be the impact of the Bill; I believe that this is about systemic issues to do with social media, which we are tackling.

I say this slightly tongue-in-cheek, but if the Minister had followed the collective wisdom of the Joint Committee originally, perhaps we would not have worked at such breakneck speed to get everything done for Report stage. I believe that the Bill team and the Minister have worked extremely hard in a very few days to get to where we are on many amendments that we will be talking about in the coming days.

I also want to show my support for the noble Baroness, Lady Merron. I do not believe it is just a matter of the Interpretation Act; I believe this is a fundamental issue and I thank her for raising it, because it was not something that was immediately obvious. The fact is that a combination of characteristics is a particular risk in itself; it is not just about having several different characteristics. I hope the Minister reflects on this and can give a positive response. That will set us off on a very good course for the first day of Report.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this has indeed set us on a good course, and I am grateful to noble Lords for their questions and contributions. I apologise to my noble friend Lord Moylan, with whom I had the opportunity to discuss a number of issues relating to freedom of expression on Monday. We had tabled this amendment, and I apologise if I had not flagged it and sought his views on it explicitly, though I was grateful to him and the noble Baroness, Lady Fox of Buckley, for their time in discussing the issues of freedom of expression more broadly.

I am grateful to my noble friend Lady Harding and to the noble Baroness, Lady Kidron, for their tireless work over many months on this Bill and for highlighting the importance of “content” and “activity”. Both terms have been in the Bill since its introduction, for instance in Clauses 5(2) and (3), but my noble friend Lady Harding is right to highlight it in the way that she did. The noble Baroness, Lady Kidron, asked about the provisions on safety by design. The statement in the new clause reflects the requirements throughout the Bill to address content and activity and ensure that services are safe by design.

On the amendments tabled by the noble Baroness, Lady Merron, which draw further attention to people who have multiple characteristics and suffer disproportionately because of it, let me start by saying again that the Government recognise that this is, sadly, the experience for many people online, and that people with multiple characteristics are often at increased risk of harm. The Bill already accounts for this, and the current drafting captures people with multiple characteristics because of Section 6 of the Interpretation Act 1978. As she says, this was a new one to me—other noble Lords may be more familiar with this legacy of the Callaghan Government—but it does mean that, when interpreting statute, words in the singular include the plural and words in the plural include the singular.

If we simply amended the references that the noble Baroness highlights in her amendments, we would risk some uncertainty about what those provisions cover. I sympathise with the concern which lies behind her amendments, and I am grateful for her time in discussing this matter in detail. I agree that it would be helpful to make it clearer that the Bill is designed to protect people with multiple characteristics. This clause is being inserted to give clarity, so we should seek to do that throughout.

We have therefore agreed to add a provision in Clause 211—the Bill’s interpretation clause—to make clear that all the various references throughout the Bill to people with a certain characteristic include people with a combination of characteristics. This amendment was tabled yesterday and will be moved at a later day on Report, so your Lordships’ House will have an opportunity to look at and vote on that. I hope that that provision clarifies the intention of the wording used in the Bill and puts the issue beyond doubt. I hope that the noble Baroness will be satisfied, and I am grateful to all noble Lords for their support on this first amendment.

--- Later in debate ---

[Baroness Kidron (CB)]

I also want to support the noble Baroness, Lady Kennedy. The level of abuse to women online and the gendered nature of it has been minimised; the perpetrators have clearly felt immune to the consequences of law enforcement. What worries me a little in this discussion is the idea or conflation that anything said to a woman is an act of violence. I believe that the noble Baroness was being very specific about the sorts of language that could be caught under her suggestions. I understand from what she said that she has been having conversations with the Minister. I very much hope that something is done in this area, and that it is explored more fully, as the noble Baroness, Lady Morgan, said, in the guidance. However, I just want to make the point that online abuse is also gamified: people make arrangements to abuse people in groups in particular ways that are not direct. If they threaten violence, that is quite different to a pile-in saying that you are a marvellous human being.

[Lord Clement-Jones (LD)]

My Lords, I too must declare my interests on the register—I think that is the quickest way of doing it to save time. We still have time, and I very much hope that the Minister will listen to this debate and consider it. Although we are considering clauses that, by and large, come at the end of the Bill, there is still time procedurally—if the Minister so decides—to come forward with an amendment later on Report or at Third Reading.

We have heard some very convincing arguments today. My noble friend explained that the Minister did not like the DPP solution. I have looked back again at the Law Commission report, and I cannot for the life of me see the distinction between what was proposed for the offence in its report and what is proposed by the Government. There is a cigarette paper, if we are still allowed to use that analogy, between them, but the DPP is recommended—perhaps not on a personal basis, although I do not know quite what distinction is made there by the Law Commission, but certainly the Minister clearly did not like that. My noble friend has come back with some specifics, and I very much hope that the Minister will put on the record that, in those circumstances, there would not be a prosecution. As we heard in Committee, 130 different organisations had strong concerns, and I hope that the Minister will respond to those concerns.

As regards my other noble friend’s amendment, again creatively she has come back with a proposal for including reckless behaviour. The big problem here is that many people believe that, unless you include “reckless” or “consent”, the “for a laugh” defence operates. As the Minister knows, quite expert advice has been had on this subject. I hope the Minister continues his discussions. I very much support my noble friend in this respect. I hope he will respond to her in respect of timing and monitoring—the noble Baroness, Lady Morgan, mentioned the need for the issue to be kept under review—even if at the end of the day he does not respond positively with an amendment.

Everybody believes that we need a change of culture—even the noble Baroness, Lady Fox, clearly recognises that—but the big difference is whether or not we believe that these particular amendments should be made. We very much welcome what the Law Commission proposed and what the Government have put into effect, but the question at the end of day is whether we truly are making illegal online what is illegal offline. That has always been the Government’s test. We must be mindful of that in trying to equate online behaviour with offline behaviour. I do not believe that we are there yet, however much moral leadership we are exhorted to display. I very much take the point of the noble Baroness, Lady Morgan, about the violence against women and girls amendment that the Government are coming forward with. I hope that will have a cultural change impact as well.

As regards the amendments of the noble Baroness, Lady Kennedy, I very much take the point she made, both at Committee and on Report. She was very specific, as the noble Baroness, Lady Kidron, said, and was very clear about the impact, which as men we severely underestimate if we do not listen to what she said. I was slightly surprised that the noble Baroness, Lady Fox, really underestimates the impact of that kind of abuse—particularly that kind of indirect abuse.

I was interested in what the Minister had to say in Committee:

“In relation to the noble Baroness’s Amendment 268, the intentional encouragement or assistance of a criminal offence is already captured under Sections 44 to 46 of the Serious Crime Act 2007”.—[Official Report, 22/6/23; col. 424.]


Is that still the Government's position? Has that been explained to the noble Baroness, Lady Kennedy, who I would have thought was pretty expert in the 2007 Act? If she does not agree with the Minister, that is a matter of some concern.

Finally, I agree that we need to consider the points raised at the outset by the noble and learned Lord, Lord Garnier, and I very much hope that the Government will keep that under review.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been an interesting debate that in a curious way moves us from the debate on the first group, which was about the high level of aspiration for this Bill, for the work of those involved in it and indeed for Parliament as a whole, down to some of the nitty-gritty points that emerge from some of the Bill’s proposals. I am very much looking forward to the Minister’s response.

In a sense, where the noble Lord, Lord Clement-Jones, ends, I want to start. The noble and learned Lord, Lord Garnier, did a good job of introducing the points made previously by his colleague, the noble Baroness, Lady Buscombe, in relation to those unfortunate exercises of public comment on businesses, and indeed individuals, that have no reason to receive them. There does not seem to be a satisfactory sanction for that. In a sense he was drawn by the overarching nature of Clause 1, but I think we have established between us that Clause 1 does not have legal effect in the way that he would like, so we would probably need to move further forward. The Government probably need to pick up his points in relation to some of the issues that are raised further down, because they are in fact not dissimilar and could be dealt with.

The key issue is the one that my noble friend Lady Kennedy ended on, in the sense that the law online and the law offline, as mentioned by the noble Lord, Lord Clement-Jones, seem to be at variance about what you can and cannot do in relation to threats issued, whether or not they are general, to a group or groups in society. This is a complex area that needs further thought of the nature that has been suggested, and may well refer back to the points made by the noble Baroness, Lady Morgan. There is something here that we are not tackling correctly. I look forward to the Government’s response. We would support movement in that area should that agreement be made.

Unfortunately, the noble Lord, Lord Russell, whom I am tempted to call my noble friend because he is a friend, has just moved out of his seat—I do not need to give him a namecheck any more—but he and I went to a meeting yesterday, I think, although I have lost track of time. It was called by Luke Pollard MP and related to the incel movement or, as the meeting concluded, what we should call the alleged incel movement, because by giving it a name we somehow give it a position. I wanted to make that point because a lot of what we are talking about here is in the same territory. It was an informal research-focused meeting to hear all the latest research being done on the group of activities going under the name of the alleged incel movement.

I mention that because it plays into a lot of the discussion here. The way in which those who organise it do so—the name Andrew Tate has already been mentioned—was drawn into the debate in a much broader context by that research, particularly because representatives from the Home Office made the interesting point that the process by which the young men who are involved in this type of activity are groomed to join groups and are told that by doing so they are establishing a position that has been denied to them by society in general, and allegedly by women in particular, is very similar to the methods used by those who are cultivating terrorism activity. That may seem to be a big stretch but it was convincing, and the argument and debate around that certainly said to me that there are things operating within the world of social media, with its ability to reach out to those who often feel alone, even if they are not, and who feel ignored, and to reach them in a way that causes them to overreact in the way they deal with the issues they face.

That point was picked up by others, including my noble friend Lady Kennedy and the noble Baroness, Lady Burt, in relation to the way in which the internet itself is in some way gendered against women. I do not in any sense want to apportion blame anywhere for that; it is a much more complex issue than single words can possibly address, but it needs to be addressed. As was said in the meeting and has been said today, there are cultural, educational and holistic aspects here. We really do not tackle the symptoms or the effects of it, but we should also look at what causes people to act in the way they have because of, or through the agency of, the internet.

Having said that, I support the amendments from the noble Lord, Lord Allan, and I look forward to the Government’s response to them. Amendment 5B raises the issue that it will be detrimental to society if people stop posting and commenting on things because they fear that they will be prosecuted—or not even prosecuted but attacked. The messages that they want to share will be lost as a result, and that is a danger that we do not want to encourage. It will be interesting to hear the Minister’s response to that.

The noble Baroness, Lady Burt, made powerful points about the way in which the offence of cyberflashing is going to be dealt with, and the differences between that and the intimate image abuse that we are coming on to in the next group. It may well be that this is the right way forward, and indeed we support the Government in the way that they are going, but it is important to recognise her point that we need a test of whether it is working. The Government may well review the impact of the Bill in the normal way of things, but this aspect needs particular attention; we need to know whether there are prosecutions and convictions and whether people understand the implication of the change in practice. We need publicity, as has been said, otherwise it will not be effective in any case. These issues, mentioned by the noble Baroness, Lady Burt, and picked up by the noble Baroness, Lady Morgan, are important. We will have other opportunities to discuss them, but at this stage we should at least get a response to that.

If it is true that in Northern Ireland there is now a different standard for the way in which cyberflashing offences are to be undertaken—taking into account the points made very well by the noble Baroness, Lady Fox, and the worry about encouraging more offences for which crimes may not necessarily be appropriate at this stage, particularly the one about recklessness—do the Government not have a slight problem here? In the first case, do we really accept that we want differences between the various regions and nations of our country in these important issues? We support devolution but we also need to have a sense of what the United Kingdom as a whole stands for in its relationship with these types of criminal offence, if they are criminal. If that happens, do we need a better understanding of why one part of the country has moved in a particular way, and is that something that we are missing in picking up action that is perhaps necessary in other areas? As my noble friend Lady Kennedy has also said, some of the work she has been doing in Scotland is ahead of the work that we have been doing in this part of the United Kingdom, and we need to pick up the lessons from that as well.

As I said at the beginning, this is an interesting range of amendments. They are not as similar as the grouping might suggest, but they point in a direction that needs government attention, and I very much look forward to the Minister’s comments on them.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

If a defendant said that he—usually he—had sent an image believing that the consent of the recipient was implied, the person making the complaint would be cross-examined on whether or not she had indeed given that consent. If an offence predicated on proof of non-consent or proof of harm were made out, the victim could be called to give evidence and be cross-examined in court. The defence would be likely to lead evidence challenging the victim’s characteristics and credibility. We do not want that to be a concern for victims; we do not want that to be a barrier to victims coming forward and reporting abuse for fear of having their sexual history or intentions cross-examined.

[Lord Clement-Jones (LD)]

My Lords, we are coming to this in the next group, but that is a consent-based offence, is it not?

[Lord Parkinson of Whitley Bay (Con)]

It is—and I shall explain more in that group why we take that approach. But the offence of cyberflashing matches the existing offence of flashing, which is not a consent-based offence. If somebody flashes at someone in public, it does not matter whether the person who sees that flashing has consented to it—it is the intent of the flasher that is the focus of the court. That is why the Law Commission and we have brought the cyberflashing offence forward in the same way, whereas the sharing of intimate images without somebody’s consent relies on the consent to sharing. But I shall say a bit more when we get to that group, if the noble Lord will allow.

[Lord Clement-Jones (LD)]

I am sure that the noble and learned Lord, Lord Garnier, is going to come in, and he knows a great deal more about this than I do. But we are getting into the territory where we talk about whether or not somebody needs to appear in court in order to show consent. That was all that I was trying to point out, in a way—that, if the Minister accepted the amendment on behalf of my noble friend, and then the complainant had to appear in court, why is that not the case with intimate abuse?

[Lord Parkinson of Whitley Bay (Con)]

Perhaps I can respond to the point about intimate abuse when we come on to the next group—that might be helpful.

[Lord Clement-Jones (LD)]

It might be helpful—except for the refusal to accept my noble friend’s amendment.

--- Later in debate ---

[Baroness Morgan of Cotes (Con)]

Very briefly, before I speak to these amendments, I want to welcome them. Having spoken to and introduced some of the threats of sharing intimate images under the Domestic Abuse Act 2021, I think it is really welcome that everything has been brought together in one place. Again, I pay tribute to the work of Dame Maria Miller and many others outside who have raised these as issues. I also want to pay tribute to the Ministry of Justice Minister Edward Argar, who has also worked with my noble friend the Minister on this.

I have one specific question. The Minister did mention this in his remarks, but could he be absolutely clear that these amendments do not mention specifically the lifetime anonymity of claimants and the special measures in relation to giving evidence that apply to witnesses. That came up in the last group of amendments as well. Because they are not actually in this drafting, it would be helpful if he could put on record the relationship with the provisions in the Sexual Offences Act 2003. I know that would be appreciated by campaigners.

[Lord Clement-Jones (LD)]

My Lords, I have very little to add to the wise words that we have heard from my noble friend and from the noble Baronesses, Lady Kidron and Lady Morgan. We should thank all those who have got us to this place, including the Law Commission. It was a separate report. In that context, I would be very interested to hear a little more from the Minister about the programme of further offences that he mentioned. The communication offences that we have talked about so far are either the intimate images offences, which there was a separate report on, or other communications offences, which are also being dealt with as part of the Bill. I am not clear what other offences are in the programme.

Finally, the Minister himself raised the question of deepfakes. I have rustled through the amendments to see exactly how they are caught. The question asked by the noble Baroness, Lady Kidron, is more or less the same but put a different way. How are these deepfakes caught in the wording that is now being included in the Bill? This is becoming a big issue and we must be absolutely certain that it is captured.

[Baroness Merron (Lab)]

My Lords, I am grateful to the Minister for introducing this suite of government amendments. From these Benches we welcome them. From the nature of the debate, this seems to be very much a work in progress. I wish the Minister well as he and the Justice Minister continue to pick their way through a route to get us to where we need to be. I too thank the Law Commission, Dame Maria Miller MP and so many other campaigners who, as noble Lords have said, have got us to this important point.

However, as I am sure is recognised, with the best of intentions, the government amendments still leave some areas that are as yet unresolved, particularly on sharing images with others: matters such as revenge porn and sending unwanted pictures on dating apps. There are areas still to be explored. The Minister and the Justice Minister said in a letter that, when parliamentary time allows, there will be a broader package of offences being brought forward. I realise that the Minister cannot be precise, but I would appreciate some sense of urgency or otherwise in terms of parliamentary time and when that might be.

We are only just starting to understand the impact of, for example, artificial intelligence, which we are about to come on to. That will be relevant in this regard too. We all understand that this is a bit of a moveable feast. The test will be whether this works. Can the Minister say a bit more about how this suite of measures will be kept under review and, in so doing, will the Government be looking at keeping an eye on the number of charges that are brought? How will this be reported to the House?

In line with this, will there be some consideration of the points that were raised in the previous group? I refer particularly to the issues raised in the amendments tabled by the noble Baroness, Lady Burt, especially where there may not be the intent, or the means, to obtain sexual gratification. They might be about “having a bit of a laugh”, as the noble Baroness said—which might be funny to some but really not funny to others.

In welcoming this, I hope that the Minister will indicate that this is just one step along the way and when we will see further steps.

[Lord Parkinson of Whitley Bay (Con)]

I am happy to respond clearly to that. As my right honourable friend Edward Argar MP and I said in our letter, this is just the first step towards implementing the changes which the Law Commission has recommended and which we agree are needed. We will implement a broader package of offences, covering, for instance, the taking of intimate images without consent, which were also part of the Law Commission’s report. The parameters of this Bill limit what we can do now. As I said in my opening remarks, we want to bring those forward now so that we can provide protections for victims in all the ways that the Bill gives us scope to do. We will bring forward further provisions when parliamentary time allows. The noble Baroness will understand that I cannot pre-empt when that is, although if we make good progress on the Bill, parliamentary time may allow for it sooner.

The noble Baroness also asked about our review. We will certainly take into account the number of prosecutions and charges that are brought. That is always part of our consideration of criminal law, but I am happy to reassure her that this will be the case here. These are new offences, and we want to make sure that they are leading to prosecutions to deter people from doing it.

The noble Lord, Lord Allan of Hallam, asked whether images will include those shared on virtual reality platforms and in other novel ways. As he knows, the Bill is written in a technologically neutral way to try to be future-proof and capture those technologies which have not yet been invented. I mentioned deepfakes in my opening remarks, which we can envisage. An image will be included on whatever platform it is shared, if it appears to be a photograph or film—that is to say, if it is photo-real. I hope that reassures him.

[Lord Clement-Jones (LD)]

If the Minister has time, can he actually direct us to that, because it is important that we are clear that it really is captured?

[Lord Parkinson of Whitley Bay (Con)]

In the amendments, if I can, I will. In the meantime, I reassure my noble friend Lady Morgan of Cotes that, as I said in opening, placing these offences in the Sexual Offences Act means that we are also extending the current special measures provisions to these offences, as we heard in our debate on the last group, so that victims can benefit from those in court. The same applies to anonymity provisions, which are so important when something so intimate has been shared without someone’s consent.

I promised in the previous group to outline the difference in the consent basis between this offence and the cyberflashing offence. Both are abhorrent behaviours which need to be addressed in criminal law. Although the levels of harm and distress may be the same in each case, the Law Commission recommended different approaches to take into account the different actions of the perpetrator in each offence. Sharing an intimate image of somebody without their consent is, in and of itself, wrongful, and a violation of their bodily privacy and sexual autonomy. Sending a genital image without the consent of the recipient is not, in and of itself, wrongful; for instance, the example I gave in the previous debate about an artistic performance, or a photograph which depicts a naked protester. If that was sent without the consent of the recipient, it is not always or necessarily harmful. This is an issue which the Law Commission looked at in some detail.

The criminal law must take the culpability of the perpetrator into account. I reassure noble Lords that both we and the Law Commission have looked at these offences considerably, working with the police and prosecutors in doing so. We are confident that the Bill provides the comprehensive protection for victims that we all want to see, including in situations where a perpetrator may claim that it was just a joke.

The terms “photograph” and “film” are defined in proposed new Section 66D(5). That refers to the definition in new Section 66A, which refers to an image which is made or altered in any way

“which appears to be a photograph or film”.

That is where the point I make about photo-reality is captured.

The noble Baroness, Lady Kidron, is right to highlight that this is a matter not just for the criminal law. As we discussed on the previous group, it is also a matter for public education, so that young people and users of any age are aware of the legal boundaries and legal issues at stake here. That is why we have the public education campaigns to which I alluded in the previous group.

Online Safety Bill

Lord Clement-Jones Excerpts

Report stage
Thursday 6th July 2023 Lords Chamber

[Lord Allan of Hallam (LD)]

My Lords, I rise briefly to welcome the fact that there is a series of amendments here where “bot” is replaced by

“bot or other automated tool”.

I point out that there is often a lot of confusion about what a bot is or is not. It is something that was largely coined in the context of a particular service—Twitter—where we understand that there are Twitter bots: accounts that have been created to pump out lots of tweets. In other contexts, on other services, there is similar behaviour but the mechanism is different. It seems to me that the word “bot” may turn out to be one of those things that was common and popular at the end of the 2010s and in the early 2020s, but in five years we will not be using it at all. It will have served its time, it will have expired and we will be using other language to describe what it is that we want to capture: a human being has created some kind of automated tool that will be very context dependent, depending on the nature of the service, and they are pumping out material. It is very clear that we want to make sure that such behaviour is in scope and that the person cannot hide behind the fact that it was an automated tool, because we are interested in the mens rea of the person sitting behind the tool.

I recognise that the Government have been very wise in making sure that whenever we refer to a bot we are adding that “automated tool” language, which will make the Bill inherently much more future-proof.

[Lord Clement-Jones (LD)]

My Lords, I just want to elucidate whether the Minister has any kind of brief on my Amendment 152A. I suspect that he does not; it is not even grouped—it is so recent that it is actually not on today’s groupings list. However, just so people know what will be coming down the track, I thought it would be a good idea at this stage to say that it is very much about exactly the question that the noble Baroness, Lady Harding, was asking. It is about the interaction between a provider environment and a user, with the provider environment being an automated bot—or “tool”, as my noble friend may prefer.

It seems to me that we have an issue here. I absolutely understand what the Minister has done, and I very much support Amendment 153, which makes it clear that user-generated content can include bots. But this is not so much about a human user using a bot or instigating a bot; it is much more about a human user encountering content that is generated in an automated way by a provider, and then the user interacting with that in a metaverse-type environment. Clearly, the Government are apprised of that with regard to Part 5, but there could be a problem as regards Part 3. This is an environment that the provider creates, but it is interacted with by a user as if that environment were another user.

I shall not elaborate or make the speech that I was going to make, because that would be unfair to the Minister, who needs to get his own speaking note on this matter. But I give him due warning that I am going to degroup and raise this later.

[The Lord Bishop of Oxford]

My Lords, I warmly welcome this group of amendments. I am very grateful to the Government for a number of amendments that they are bringing forward at this stage. I want to support this group of amendments, which are clearly all about navigating forward and future-proofing the Bill in the context of the very rapid development of artificial intelligence and other technologies. In responding to this group of amendments, will the Minister say whether he is now content that the Bill is sufficiently future-proofed, given the hugely rapid development of technology, and whether he believes that Ofcom now has sufficient powers to risk assess for the future and respond, supposing that there were further parallel developments in generative AI such as we have seen over the past year?

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, this has been a very interesting debate, as it is a real contrast. We have one set of amendments which say that the net is too wide and another which say that the net is not wide enough, and I agree with both of them. After all, we are trying to fine-tune the Bill to get it to deal with the proper risks—the word “risk” has come up quite a lot in this debate—that it should. Whether or not we make a specific exemption for public interest services, public information services, limited functionality services or non-commercial services, we need to find some way to deal with the issue raised by my noble friend and the noble Lord, Lord Moylan, in their amendments. All of us are Wikipedia users; we all value the service. I particularly appreciated what was said by the noble Baroness, Lady Kidron: Wikipedia does not push its content at us—it is not algorithmically based.

What the noble Lord, Lord Russell, said, resonated with me, because I think he has found a thundering great hole in the Bill. This infinite scrolling and autoplay is where the addiction of so much of social media lies, and the Bill absolutely needs systemically and functionally to deal with it. So, on the one hand, we have a service which does not rely on that infinite scrolling and algorithmic type of pushing of content and, on the other hand, we are trying to identify services which have that quality.

I very much hope the Minister is taking all this on board, because on each side we have identified real issues. Whether or not, when we come to the light at the end of the tunnel of Amendment 245 from the noble Baroness, Lady Morgan, it will solve all our problems, I do not know. All I can say is that I very much hope that the Minister will consider both sets of amendments and find a way through this that is satisfactory to all sides.

[Lord Stevenson of Balmacara (Lab)]

My Lords, much like the noble Lord, Lord Clement-Jones, I started off being quite certain I knew what to say about these amendments. I even had some notes—unusual for me, I know—but I had to throw them away, which I always do with my notes, because the arguments have been persuasive. That is exactly why we are here in Parliament discussing things: to try to reach common solutions to difficult problems.

We started with a challenge to the Minister to answer questions about scope, exemptions and discretion in relation to a named service—Wikipedia. However, as the debate went on, we came across the uncomfortable feeling that, having got so far into the Bill and agreed a lot of amendments today improving it, we are still coming up against quite stubborn issues that do not fit neatly into the categorisation and structures that we have. We do not seem to have the right tools to answer the difficult questions before us today, let alone the myriad questions that will come up as the technology advances and new services come in. Why have we not already got solutions to the problems raised by Amendments 281, 281A and 281B?

There is also the rather difficult idea we have from the noble Lord, Lord Russell, of dark patterns, which we need to filter into our thinking. Why does that not fit into what we have got? Why is it that we are still worried about Wikipedia, a service for public good, which clearly has risks in it and is sometimes capable of making terrible mistakes but is definitely a good thing that should not be threatened by having to conform with a structure and a system which we think is capable of dealing with some of the biggest and most egregious companies that are pushing stuff at us in the way that we have talked about?

I have a series of questions which I do not have the answers to. I am looking forward to the Minister riding to my aid on a white charger of enormous proportions and great skill which will take us out without having to fall over any fences.

If I may, I suggest to the Minister a couple of things. First, we are stuck on the word “content”. We will come back to that in the future, as we still have an outstanding problem about exactly where the Bill sets it. Time and again in discussions with the Bill team and with Ministers we have been led back to the question of where the content problem lies and where the harms relate to that, but this little debate has shown beyond doubt that harm can occur independent of and separate from content. We must have a solution to that, and I hope it will be quick.

Secondly, when approaching anybody or anything or any business or any charity that is being considered in scope for this Bill, we will not get there if we are looking only at the question of its size and its reach. We have to look at the risks it causes, and we have to drill down hard into what risks we are trying to deal with using our armoury as we approach these companies, because that is what matters to the children, vulnerable people and adults who would suffer otherwise, and not the question of whether or not these companies are big or small. I think there are solutions to that and we will get there, but, when he comes to respond, the Minister needs to demonstrate to us that he is still willing to listen and think again about one or two issues. I look forward to further discussions with him.

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[Lord Parkinson of Whitley Bay (Con)]

I do not think that it is, but it will be helpful to have a debate on categorisation later on Report, when we reach Amendment 245, to probe this further. It is not possible for me to say that a particular service will certainly be categorised one way or another, because that would give it carte blanche and we do not know how it may change in the future—estimable though I may think it is at present. That is the difficulty of setting the precise parameters that the noble Baroness, Lady Fox, sought in her contribution. We are setting broad parameters, with exemptions and categorisations, so that the burdens are not unduly heavy on services which do not cause us concern, and with the proviso for the Secretary of State to bring further exemptions before Parliament, as circumstances strike her as fit, for Parliament to continue the debate we are having now.

The noble Baroness, Lady Kidron, in her earlier speech, asked about the functionalities of user-to-user services. The definitions of user-to-user services are broad and flexible, to capture new and changing services. If a service has both user-to-user functionality and a search engine, it will be considered a combined service, with respective duties for the user-to-user services which form part of its service and search duties in relation to the search engine.

I reassure my noble friend Lady Harding of Winscombe that the Bill will not impose a disproportionate burden on services, nor will it impede the public’s access to valuable content. All duties on services are proportionate to the risk of harm and, crucially, to the capacity of companies. The Bill’s proportionate design means that low-risk services will have to put in place only measures which reflect the risk of harm to their users. Ofcom’s guidance and codes of practice will clearly set out how these services can comply with their duties. We expect that it will set out a range of measures and steps for different types of services.

Moreover, the Bill already provides for wholesale exemptions for low-risk services and for Ofcom to exempt in-scope services from requirements such as record-keeping. That will ensure that there are no undue burdens to such services. I am grateful for my noble friend’s recognition, echoed by my noble friend Lady Stowell of Beeston, that “non-profit” does not mean “not harmful” and that there can be non-commercial services which may pose harms to users. That is why it is important that there is discretion for proper assessment.

Amendment 30 seeks to allow Ofcom to withdraw the exemptions listed in Schedule 1 from the Bill. I am very grateful to my noble friend Lord Moylan for his time earlier this week to discuss his amendment and others. We have looked at it, as I promised we would, but I am afraid that we do not think that it would be appropriate for Ofcom to have this considerable power—my noble friend is already concerned that the regulator has too much.

The Bill recognises that it may be necessary to remove certain exemptions if there is an increased risk of harm from particular types of services. That is why the Bill gives the Secretary of State the power to remove particular exemptions, such as those related to services which have limited user-to-user functionality and those which offer one-to-one live aural communications. These types of services have been carefully selected as areas where future changes in user behaviour could necessitate the repeal or amendment of an exemption in Schedule 1. This power is intentionally limited to only these types of services, meaning that the Secretary of State will not be able to remove exemptions for comments on recognised news publishers’ sites. That is in recognition of the Government’s commitment to media freedom and public debate. It would not be right for Ofcom to have the power to repeal those exemptions.

Amendments 281 and 281B, in the name of the noble Lord, Lord Russell of Liverpool, are designed to ensure that the lists of features under the definition of “functionality” in the Bill apply to all regulated services. Amendment 281A aims to add additional examples of potentially addictive functionalities to the Bill’s existing list of features which constitute a “functionality”. I reassure him and other noble Lords that the list of functionalities in the Bill is non-exhaustive. There may be other functionalities which could cause harm to users and which services will need to consider as part of their risk assessment duties. For example, if a provider’s risk assessment identifies that there are functionalities which risk causing significant harm to an appreciable number of children on its service, the Bill will require the provider to put in place measures to mitigate and manage that risk.

He and other noble Lords spoke about the need for safety by design. I can reassure them this is already built into the framework of the Bill, which recognises how functionalities including many of the things mentioned today can increase the risk of harm to users and will encourage the safe design of platforms.

Amendments 281 and 281B have the effect that regulated services would need to consider the risk of harm of functionalities that are not relevant for their kind of service. For example, sharing content with other users is a functionality of user-to-user services, which is not as relevant for search services. The Bill already outlines specific features that both user-to-user and search services should consider, which are the most relevant functionalities for those types of service. Considering these functionalities would create an unnecessary burden for regulated services which would detract from where their efforts can best be focused. That is why I am afraid I cannot accept the amendments that have been tabled.

[Lord Clement-Jones (LD)]

My Lords, surely it is the role of the regulators to look at functionalities of this kind. The Minister seemed to be saying that it would be an undue burden on the regulator. Is not that exactly what we are meant to be legislating about at this point?

[Lord Parkinson of Whitley Bay (Con)]

Perhaps I was not as clear as I could or should have been. The regulator will set out in guidance the duties that fall on the businesses. We do not want the burden on the business to be unduly heavy, but there is an important role for Ofcom here. I will perhaps check—

[Lord Clement-Jones (LD)]

But these functionalities are a part of their business model, are they not?

[Lord Parkinson of Whitley Bay (Con)]

Hence Ofcom will make the assessments about categorisation based on that. Maybe I am missing the noble Lord’s point.

[Lord Clement-Jones (LD)]

I think we may need further discussions on the amendment from the noble Lord, Lord Russell.

[Lord Parkinson of Whitley Bay (Con)]

I will check what I said but I hope that I have set out why we have taken the approach that we have with the broad scope and the exemptions and categorisations that are contained in it. With that, I urge the noble Lord to withdraw his amendment.

--- Later in debate ---

This takes me into the area of media literacy, which I flag so that the Minister and the Bill team can do some homework. In Scotland, there is a very sensible scheme called Mentors in Violence Prevention. Essentially, it uses the older pupils in the sixth form, who have learned beforehand from other mentors how to talk about and understand the harms they might experience online. They deliver to the younger children the information that they have accumulated. The evidence is that this is infinitely more effective than teachers or outside experts doing it. It is almost peer-to-peer—perhaps a very appropriate approach for your Lordships’ House.

[Lord Clement-Jones (LD)]

I shall be brief, my Lords, because I know we have a Statement to follow. It is a pleasure to follow the noble Lord, Lord Russell. I certainly share his concern about the rise of incel culture, and this is a very appropriate point to raise it.

This is all about choices and the Minister, in putting forward his amendments, in response not only to the Joint Committee but the overwhelming view in Committee on the Bill that this was the right thing to do, has done the right thing. I thank him for that, with the qualification that we must make sure that the red and amber lights are used—just as my noble friend Lord Allan and the noble Baroness, Lady Stowell, qualified their support for what the Minister has done. At the same time, I make absolutely clear that I very much support the noble Baroness, Lady Kidron. I was a bit too late to get my name down to her amendment, but it would be there otherwise.

I very much took to what the right reverend Prelate had to say about the ethics of the online world and nowhere more should they apply than in respect of children and young people. That is the place where we should apply these ethics, as strongly as we can. With some knowledge of artificial intelligence, how it operates and how it is increasingly operating, I say that what the noble Baroness wants to add to the Minister’s amendment seems to be entirely appropriate. Given the way in which algorithms are operating and the amount of misinformation and disinformation that is pouring into our inboxes, our apps and our social media, this is a very proportionate addition. It is the future. It is already here, in fact. So I very strongly support Amendment 174 from the noble Baroness and I very much hope that after some discussion the Minister will accept it.

[Lord Stevenson of Balmacara (Lab)]

My Lords, like the noble Baroness, Lady Harding, I want to make it very clear that I think the House as a whole welcomes the change of heart by the Government to ensure that we have in the Bill the two sides of the question of content that will be harmful to children. We should not walk away from that. We made a big thing of this in Committee. The Government listened and we have now got it. The fact that we do not like it—or do not like bits of it—is the price we pay for having achieved something which is, probably on balance, good.

The shock comes from trying to work out why it is written the way it is, and how difficult it is to see what it will mean in practice when companies working to Ofcom’s instructions will take this and make this happen in practice. That lies behind, I think I am right in saying, the need for the addition to Amendment 172 from the noble Baroness, Lady Kidron, which I have signed, along with the noble Baroness, Lady Harding, and the right reverend Prelate the Bishop of Oxford. Both of them have spoken well in support of it and I do not need to repeat those points.

Somehow, in getting the good of Amendments 171 and 172, we have lost the flexibility that we think we want as well to try to get that through. The flexibility does exist, because the Government have retained powers to amend and change both primary priority content that is harmful to children and the primary content. Therefore, subject to approval through the secondary legislation process, this House will continue to have a concern about that—indeed, both Houses will.

Somehow, however, that does not get to quite where the concern comes from. The concern should be both the good points made by the noble Lord, Lord Russell—I should have caught him up in the gap and said I had already mentioned the fact that we had been together at the meeting. He found some additional points to make which I hope will also be useful to future discussion. I am glad he has done that. He is making a very good point in relation to cultural context and the work that needs to go on—which we have talked about in earlier debates—in order to make this live: in other words, to make people who are responsible for delivering this through Ofcom, but also those who are delivering it through companies, to understand the wider context. In that sense, clearly we need the misinformation/disinformation side of that stuff. It is part and parcel of the problems we have got. But more important even than that is the need to see about the functionality issues. We have come back to that. This Bill is about risk. The process that we will be going through is about risk assessment and making sure that the risks are understood by those who deliver services, and the penalties that follow the failure of the risk assessment process delivering change that we want to see in society.

However, it is not just about content. We keep saying that, but we do not see the changes around it. The best thing that could happen today would be if the Minister in responding accepted that these clauses are good—“Tick, we like them”—but could we just not finalise them until we have seen the other half of that, which is: what are the other risks to which those users of services that we have referred to and discussed are receiving through the systemic design processes that are designed to take them in different directions? It is only when we see the two together that we will have a proper concern.

I may have got this wrong, but the only person who can tell us is the Minister because he is the only one who really understands what is going on in the Bill. Am I not right in saying—I am going to say I am right; he will say no, I am not, but I am, aren’t I?—that we will get to Clauses 208 and 209, or the clauses that used to be 208 and 209, one of which deals with harms from content and the other deals with functionality? We may need to look at the way in which those are framed in order to come back and understand better how these lie and how they interact with that. I may have got the numbers wrong—the Minister is looking a bit puzzled, so I probably have—but the sense is that this will probably not come up until day 4. While I do not want to hold back the Bill, we may need to look at some of the issues that are hidden in the interstices of this set of amendments in order to make sure that the totality is better for those who have to use it.

Online Safety Bill

Lord Clement-Jones Excerpts

Report stage
Thursday 6th July 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I will not engage with the amendments of the noble Lord, Lord Moylan, since mine are probably the diametric opposite of what he has been saying.

I say, first, on behalf of the noble Baroness, Lady Finlay, that she regrets very much not being able to be here. Amendment 204 in her name is very much a Samaritans amendment. The Samaritans have encouraged her to put it forward and encourage us to support it. It is clear that the Minister has got his retaliation in first and taken the wind out of all our sails right at the beginning. Nevertheless, that does not mean that we cannot come back at the Minister and ask for further and better particulars of what he has to say.

Clearly the Government’s decision to bring in the new offence of encouraging or assisting self-harm is welcome. However—certainly in the view of the Samaritans—this will only bring into the remit of the Bill content that encourages serious self-harm, which must reach the high threshold amounting to grievous bodily harm. Their view, therefore, is that much harmful content will still be left untouched and available to criminals online. This could include information, depictions, instructions and advice on methods of self-harm and suicide. It would also include content that portrays self-harm and suicide as positive or desirable, and graphic descriptions or depictions of self-harm and suicide.

Perhaps the Minister could redouble his efforts to assure us as to how the Bill will take a comprehensive approach to placing duties on all platforms to reduce all dangerous suicide and self-harm content, such as detailed instructions on how people can harm themselves, for adults as well as children. This should also be in respect of smaller sites; it is not just the larger category 1 sites that will need to proactively remove priority illegal content, whatever the level of detail in their risk assessment. I hope I have done my duty by the noble Baroness, Lady Finlay, who very much regrets that she was not able to be here.

My own Amendments 55, 59, 64 and 181 are about changes in social media. The Bill really began its life at the high point of the phase where services were free to the user and paid for by adverts. The noble Lord talked about this being a Twitter Bill. Well, to some extent we are influenced by what Twitter has been doing over the last 12 months: it has begun to charge for user-verification services and some features, and other services are adopting versions of what you might call this premium model. So there is a real concern that Clause 12 might not be as comprehensive as the Minister seems to be asserting. I assume that it is covered by the “proportionate” wording in Clause 12, and therefore it would not be proportionate—to put it the other way round—if they charged for this service. I would very much like the Minister to give the detail of that, so I am not going to cover the rest of the points that I would otherwise have made.

The Minister said that a blanket approach would not be appropriate for user-empowerment control features. The thought that people have had is that a platform might choose to have a big red on/off button that would try to cover all the types of content that could be subject to this kind of user-empowerment tool. I do not think the contents of Clause 12 are as clear as the Minister perhaps considers they could be, but they go with the grain of the new government amendments. I should have said right at the beginning—although many of us regret the deletion of “legal but harmful” from the original draft Bill—that the kind of assessment that is going to be made is a step in the right direction and demonstrates that the Minister was definitely listening in Committee. However, if a blanket approach of this kind is taken, that would not be in the spirit of where these user-empowerment tools are meant to go. I welcome what the Minister had to say, but again I would like the specifics of where he thinks the wording is helpful in making sure that we have a much more granular form of user-empowerment control feature when this eventually comes into operation.

Finally, I return to user verification. This is very much in the footsteps of the Joint Committee. The noble Baroness, Lady Merron, spoke very well in Committee to what was then Amendment 41, which was in the name of the noble Lord, Lord Stevenson. It would required category 1 services to make visible to users whether another user was verified or non-verified.

--- Later in debate ---

I hope all that goes some way towards reassuring the noble Baroness, Lady Fox, that freedom of expression is baked into all these amendments. Many of the questions she raises come down to the choice of users. We are not forcing people by having a default on or off. We are encouraging all users to make a decision about what material they see as adults on the internet within the law. If, like her and like me, they want to continue to see that, they should continue to keep their settings broad and know that they will encounter things with which they may disagree or that may offend them.

[Lord Clement-Jones (LD)]

My Lords, does the Minister have any more to say on identity verification?

[Lord Parkinson of Whitley Bay (Con)]

I am being encouraged to be brief so, if I may, I will write to the noble Lord on that point.

Online Safety Bill

Lord Clement-Jones Excerpts

Report stage
Monday 10th July 2023 Lords Chamber

[Lord Harlech (Con)]

My Lords, the guidance in the Companion states that Peers who were not present for the opening of this debate last week should not speak in the debate today, so I will have to ask the noble Baroness to reserve her remarks on this occasion.

[Lord Clement-Jones (LD)]

My Lords, that neatly brings me to the beginning of my own speech. I have expressed to the Chief Whip and the Minister my great regret that my noble friend Lady Benjamin is not able to take part in today’s debate because of the rather arbitrary way the group was started at the very end of proceedings on Thursday. The Minister is very much aware of that; it is a very sad thing.

I pay huge tribute to my noble friend, as the noble Lords, Lord Bethell and Lord Farmer, have. She is sitting behind me, yet she cannot make her contribution after a decade of campaigning so passionately on these issues. That includes pushing for age verification for pornographic content. We stood shoulder to shoulder on Part 3 of the Digital Economy Act, and she has carried that passion through into the debates on this Bill.

My noble friend believes that the Minister’s amendments in particular are a huge step forward. She describes this as a landmark moment from her point of view. She wants me to thank Barnardo’s, CARE and CEASE for their support and for bringing evidence and research to us on pornography. She would like to thank the Secretary of State and the Minister in particular for taking us to this point.

My noble friend also welcomes the review that was announced last week but, like the noble Lords, Lord Bethell and Lord Farmer, she has some questions that have be asked. This review is a good opportunity to examine the gaps in regulation, but it is proposed that the review will take a year. Is that the proposal and is it a firm year? What happens thereafter? Is there a commitment by the Government to legislate on this, if they are still the Government in a year’s time? What are their intentions and what is the road map to legislation? For instance, the gambling review started four years ago and we have not seen real change yet, so I think it is important to have some assurance in that respect.

Who will be involved in the review? Will the third sector and charity organisations working in this space be involved? The noble Lord, Lord Farmer, asked about scientific and medical research, which are all important aspects. I know that my noble friend would want to pay her own tribute to the noble Lords, Lord Farmer and Lord Bethell, to others involved in this exercise—“exercise” should be what it is called as it certainly feels like exercise—and in particular to the noble Baroness, Lady Kidron. I hope that the Minister will give my noble friend those assurances, despite the fact that she is not able to take part in this debate today.

From my point of view, I welcome the Government’s decision to strengthen the Bill’s age-verification requirements for online pornography, especially in respect of the principles for age assurance. But—and there always is a “but”—we absolutely need that age assurance to be privacy protecting. Amendment 125 is crucial and I am disappointed that it has not been included so far.

My noble friend Lord Allan referred to one of the major objections. We had a huge argument and debate about the efficacy of age verification when we discussed Part 3. There were great fears that age verification was going to be privacy invading and there was not a great deal of certainty about the kind of technology that was available for this kind of privacy-protecting age verification. I personally prefer and wanted to see third-party age verification; at the time, I thought it far better and safer to have third parties, such as Yoti, being responsible for our certification rather than the big tech companies, for all kinds of reasons and not just competitive ones. If we do not have some privacy-protecting language, we will be back in that situation of suspicion if we are not very careful.

Like my noble friend, I welcome the announcement of a review on the issue. There is a huge gap currently, and I give credit to the Secretary of State for understanding that that gap between the treatment of online pornography and offline pornography is very large indeed, as the BBFC can say from its experience. There is a wealth of evidence showing the link between violent pornography and real-life violence against women and girls. That is one of the reasons that I am so pleased that this review is taking place.

I mentioned the BBFC and have mentioned it before. It was going to be the regulator under Part 3 of the Digital Economy Bill. I very much hope that the Government will consult the BBFC, as it has a great deal of experience in offline certification, so I hope it will be heavily involved in a review of this kind.

I listened to my noble friend very intently and I think he made many points that resonate about the practical way in which will need to age-verify to make it simple for the public who are 18 and over. I much prefer the idea of third-party age verification to putting myself in the hands of big tech. I hope that Ofcom and the Government will do everything they can to make sure that those kinds of services are readily available and are not just controlled by the big tech companies in an anti-competitive way.

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am sorry that the noble Baroness, Lady Benjamin, was unable to be here for the start of the debate on Thursday and therefore that we have not had the benefit of hearing from her today. I am very glad that she was here to hear the richly deserved plaudits from across the House for her years of campaigning on this issue.

I am very glad to have had the opportunity to discuss matters directly with her including, when it was first announced, the review that we have launched. I am pleased that she gave it a conditional thumbs up. Many of her points have been picked up by other noble Lords today. I did not expect anything more than a conditional thumbs up from her, given her commitment to getting this absolutely right. I am glad that she is here to hear some of the answers that I am able to set out, but I know that our discussions would have continued even if she had been able to speak today and that her campaigns on this important issue will not cease; she has been tireless in them. I am very grateful to her, my noble friends Lord Bethell and Lady Harding, the noble Baroness, Lady Kidron, and many others who have been working hard on this.

Let me pick up on their questions and those of the noble Baroness, Lady Ritchie of Downpatrick, and others on the review we announced last week. It will focus on the current regulatory landscape and how to achieve better alignment of online and offline regulation of commercial pornography. It will also look at the effectiveness of the criminal law and the response of the criminal justice system relating to pornography. This would focus primarily on the approach taken by law enforcement agencies and the Crown Prosecution Service, including considering whether changes to the criminal law would address the challenges identified.

The review will be informed by significant expert input from government departments across Whitehall, the Crown Prosecution Service and law enforcement agencies, as well as through consultation with the industry and with civil society organisations and regulators including, as the noble Baroness, Lady Ritchie, rightly says, some of the many NGOs that do important work in this area. It will be a cross-government effort. It will include but not be limited to input from the Ministry of Justice, the Home Office, the Department for Science, Innovation and Technology and my own Department for Culture, Media and Sport. I assure my noble friend Lord Farmer that other government departments will of course be invited to give their thoughts. It is not an exhaustive list.

I detected the enthusiasm for further details from noble Lords across the House. I am very happy to write as soon as I have more details on the review, to keep noble Lords fully informed. I can be clear that we expect the review to be complete within 12 months. The Government are committed to undertaking it in a timely fashion so that any additional safeguards for protecting UK users of online services can be put in place as swiftly as possible.

My noble friend Lord Bethell asked about international alignment and protecting Britain for investment. We continue to lead global discussions and engagement with our international partners to develop common approaches to online safety while delivering on our ambition to make the UK the safest place in the world to be online.

The noble Baroness, Lady Kidron, asked about the new requirements. They apply only to Part 3 providers, which allow pornography or other types of primary priority content on their service. Providers that prohibit this content under their terms of service for all users will not be required to use age verification or age estimation. In practice, we expect services that prohibit this content to use other measures to meet their duties, such as effective content moderation and user reporting. This would protect children from this content instead of requiring measures that would restrict children from seeing content that is not allowed on the service in the first place.

These providers can still use age verification and age estimation to comply with the existing duty to prevent children encountering primary priority content. Ofcom can still recommend age-verification and age-estimation measures in codes of practice for these providers where proportionate. On the noble Baroness’s second amendment, relating to Schedule 4, Ofcom may refer to the age-assurance principles set out in Schedule 4 in its children’s codes of practice.

On the 18-month timetable, I can confirm that 18 months is a backstop and not a target. Our aim is to have the regime in force as quickly as possible while making sure that services understand their new duties. Ofcom has set out in its implementation road map that it intends to publish draft guidance under Part 5 this autumn and draft children’s codes next spring.

The noble Baroness, Lady Ritchie, also asked about implementation timetables. I can confirm that Part 3 and Part 5 duties will be implemented at the same time. Ofcom will publish draft guidance shortly after Royal Assent for Part 5 duties and codes for the illegal content duties in Part 3. Draft codes for Part 3 children’s duties will follow in spring next year. Some Part 3 duties relating to category 1 services will be implemented later, after the categorisation thresholds have been set in secondary legislation.

The noble Lord, Lord Allan of Hallam, asked about interoperability. We have been careful to ensure that the Bill is technology neutral and to allow for innovation across the age-assurance market. We have also included a principle on interoperability in the new list of age-assurance principles in Schedule 4 and the Part 5 guidance.

At the beginning of the debate, on the previous day on Report, I outlined the government amendments in this group. There are some others, which noble Lords have spoken to. Amendments 125 and 217, from the noble Baroness, Lady Kidron, seek to add additional principles on user privacy to the new lists of age-assurance principles for both Part 3 and 5, which are brought in by Amendments 124 and 216. There are already strong safeguards for user privacy in the Bill. Part 3 and 5 providers will need to have regard to the importance of protecting users’ privacy when putting in place measures such as age verification or estimation. Ofcom will be required to set out, in codes of practice for Part 3 providers and in guidance for Part 5 providers, how they can meet these duties relating to privacy. Furthermore, companies that use age-verification or age-estimation solutions will need to comply with the UK’s robust data protection laws or face enforcement action.

Adding the proposed new principles would, we fear, introduce confusion about the nature of the privacy duties set out in the Bill. Courts are likely to assume that the additions are intended to mean something different from the provisions already in the Bill relating to privacy. The new amendments before your Lordships imply that privacy rights are unqualified and that data can never be used for more than one purpose, which is not the case. That would introduce confusion about the nature of—

[Lord Clement-Jones (LD)]

My Lords, I apologise to the Minister. Can he write giving chapter and verse for that particular passage by reference to the contents of the Bill?

[Lord Parkinson of Whitley Bay (Con)]

I am very happy to do that. That would probably be better than me trying to do so at length from the Dispatch Box.

Government Amendment 124 also reinforces the importance of protecting children’s privacy, including data protection, by ensuring that Ofcom will need to have regard to standards set out under Section 123 of the Data Protection Act 2018 in the age-appropriate design code. I hope that explains why we cannot accept Amendments 125 or 217.

The noble Baroness, Lady Fox, has Amendment 184 in this group and was unable to speak to it, but I am very happy to respond to it and the way she set it out on the Marshalled List. It seeks to place a new duty on Ofcom to evaluate whether internet service providers, internet-connected devices or individual websites should undertake user-identification and age-assurance checks. This duty would mean that such an evaluation would be needed before Ofcom produces guidance for regulated services to meet their duties under Clauses 16 and 72.

Following this evaluation, Ofcom would need to produce guidance on age-verification and age-assurance systems, which consider cybersecurity and a range of privacy considerations, to be laid before and approved by Parliament. The obligation for Ofcom to evaluate age assurance, included in the noble Baroness’s amendment, is already dealt with by Amendment 271, which the Government have tabled to place a new duty on Ofcom to publish a report on the effectiveness of age-assurance solutions. That will specifically include consideration of cost to business, and privacy, including the processing of personal data.

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[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.

[Lord Clement-Jones (LD)]

My Lords, I very strongly support the noble Baroness, Lady Kidron, in her Amendments 35, 36 and 281F and in spirit very much support what the noble Lord, Lord Russell, said in respect of his amendments. We have heard some very powerful speeches from the noble Baroness, Lady Kidron, herself, from the noble Baronesses, Lady Harding and Lady Morgan, from the right reverend Prelate the Bishop of Oxford, from my noble friend Lady Benjamin and from the noble Lords, Lord Russell and Lord Bethell. There is little that I can add to the colour and the passion that they brought to the debate today.

As the noble Baroness, Lady Kidron, started by saying that it is not just about content; it is about functionalities, features and behaviours. It is all about platform design. I think the Government had pretty fair warning throughout the progress of the Bill that we would be keen to probe this. If the Minister looks back to the Joint Committee report, he will see that there was a whole chapter titled “Societal harm and the role of platform design”. I do not think we could have been clearer about what we wanted from this legislation. One paragraph says:

“We heard throughout our inquiry that there are design features specific to online services that create and exacerbate risks of harm. Those risks are always present, regardless of the content involved, but only materialise when the content concerned is harmful”.


It goes on to give various examples and says:

“Tackling these design risks is more effective than just trying to take down individual pieces of content (though that is necessary in the worst cases). Online services should be identifying these design risks and putting in place systems and process to mitigate them before people are harmed”.


That is the kind of test that the committee put. It is still valid today. As the noble Baroness said, platforms are benefiting from the network effect, and the Threads platform is an absolutely clear example of how that is possible.

The noble Lord, Lord Russell, gave us a very chilling example of the way that infinite scrolling worked for Milly. A noble Lord on the Opposition Bench, a former Home Secretary whose name I momentarily forget, talked about the lack of empathy of AI in these circumstances. The algorithms can be quite relentless in pushing this content; they lack human qualities. It may sound over the top to say that, but that is exactly what we are trying to legislate for. As the noble Lord, Lord Russell, says, just because we cannot always anticipate what the future holds, there is no reason why we should not try. We are trying to future-proof ourselves as far as possible, and it is not just the future but the present that we are trying to proof against through these amendments. We know that AI and the metaverse are coming down the track, but there are present harms that we are trying to legislate for as well. The noble Baroness, Lady Kidron, was absolutely right to keep reminding us about Molly Russell. It is this kind of algorithmic amplification that is so dangerous to our young people.

The Minister has a chance, still, to accede to these amendments. He has heard the opinion all around the House. It is rather difficult to understand what the Government’s motives are. The noble Baroness, Lady Morgan, put her finger on it: why is it so difficult to accede to these? We have congratulated the Government, the Minister and the Secretary of State throughout these groups over the last day and a bit; they have been extremely consensual and have worked very hard at trying to get agreement on a huge range of issues. Most noble Lords have never seen so many government amendments in their life. So far, so good; why ruin it?

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[Baroness Kidron (CB)]

My Lords, I have to admit that it was incompetence rather than lack of will that meant I did not add my name to Amendment 39 in the name of the noble Lord, Lord Bethell, and I would very much like the Government to accept his argument.

In the meantime, I wonder whether the Minister would be prepared to make it utterly clear that proportionality does not mean a little bit of porn to a large group of children or a lot of porn to a small group of children; rather, it means that high-risk situations require effective measures and low-risk situations should be proportionate to that. On that theme, I say to the noble Lord, Lord Allan, whose points I broadly agree with, that while we would all wish to see companies brought into the fold rather than being out of the fold, it rather depends on their risk.

This brings me neatly to Amendments 43 and 87 from the noble Lord, Lord Russell, to which I managed to add my name. They make a very similar point to Amendment 39 but across safety duties. Amendment 242 in my name, to which the noble Lord, Lord Stevenson, the noble Baroness, Lady Harding, and the right reverend Prelate the Bishop of Oxford have added their names, makes the same point—yet again—in relation to Ofcom’s powers.

All these things are pointing in the same direction as Amendment 245 in the name of the noble Baroness, Lady Morgan, which I keep on trumpeting from these Benches and which offers an elegant solution. I urge the Minister to consider Amendment 245 before day four of Report because if the Government were to accept it, it would focus company resources, focus Ofcom resources and, as we discussed on the first day of Report, permit companies which do not fit the risk profile of the regime and are unable to comply with something that does not fit their model yet leaves them vulnerable to enforcement also to be treated in an appropriate way.

Collectively, the ambition is to make sure that we are treating things in proportion to the risk and that proportionate does not start meaning something else.

[Lord Clement-Jones (LD)]

My Lords, I agree with the noble Baroness, Lady Kidron, that all these amendments are very much heading in the same direction, and from these Benches I am extremely sympathetic to all of them. It may well be that this is very strongly linked to the categorisation debate, as the noble Baroness, Lady Kidron, said.

The amendment from the noble Lord, Lord Bethell, matters even more when we are talking about pornography in the sense that child safety duties are based on risks. I cannot for the life of me see why we should try to contradict that by adding in capacity and size and so on.

My noble friend made a characteristically thoughtful speech about the need for Ofcom to regulate in the right way and make decisions about risk and the capacity challenges of new entrants and so on. I was very taken by what the noble Baroness, Lady Harding, had to say. This is akin to health and safety and, quite frankly, it is a cultural issue for developers. What after all is safety by design if it is not advance risk assessment of the kinds of algorithm that you are developing for your platform? It is a really important factor.

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[Baroness Kidron (CB)]

My Lords, I rise briefly to note that, in the exchange between the noble Lords, Lord Allan and Lord Moylan, there was this idea about where you can complain. The independent complaints mechanism would be as advantageous to people who are concerned about freedom of speech as it would be for any other reason. I join and add my voice to other noble Lords who expressed their support for the noble Baroness, Lady Fox, on Amendment 162 about the Public Order Act.

[Lord Clement-Jones (LD)]

My Lords, we are dangerously on the same page this evening. I absolutely agree with the noble Baroness, Lady Kidron, about demonstrating the need for an independent complaints mechanism. The noble Baroness, Lady Stowell, captured quite a lot of the need to keep the freedom of expression aspect under close review, as we go through the Bill. The noble Baroness, Lady Fox, and the noble Lord, Lord Moylan, have raised an important and useful debate, and there are some crucial issues here. My noble friend captured it when he talked about the justifiable limitations and the context in which limitations are made. Some of the points made about the Public Order Act offences are extremely valuable.

I turn to one thing that surprised me. It was interesting that the noble Lord, Lord Moylan, quoted the Equality and Human Rights Commission, which said it had reservations about the protection of freedom of expression in the Bill. As we go through the Bill, it is easy to keep our eyes on the ground and not to look too closely at the overall impact. In its briefing, which is pretty comprehensive, paragraph 2.14 says:

“In a few cases, it may be clear that the content breaches the law. However, in most cases decisions about illegality will be complex and far from clear. Guidance from Ofcom could never sufficiently capture the full range or complexity of these offences to support service providers comprehensively in such judgements, which are quasi-judicial”.


I am rather more optimistic than that, but we need further assurance on how that will operate. Its life would probably be easier if we did not have the Public Order Act offences in Schedule 7.

I am interested to hear what the Minister says. I am sure that there are pressures on him, from his own Benches, to look again at these issues to see whether more can be done. The EHRC says:

“Our recommendation is to create a duty to protect freedom of expression to provide an effective counterbalance to the duties”.


The noble Lord, Lord Moylan, cited this. There is a lot of reference in the Bill but not to the Ofcom duties. So this could be a late contender to settle the horses, so to speak.

This is a difficult Bill; we all know that so much nuance is involved. We really hope that there is not too much difficulty in interpretation when it is put into practice through the codes. That kind of clarity is what we are trying to achieve, and, if the Minister can help to deliver that, he will deserve a monument.

[Lord Stevenson of Balmacara (Lab)]

It is always nice to be nice to the Minister.

I will reference, briefly, the introduction of the amendments in the name of the noble Baroness, Lady Fraser of Craigmaddie, which I signed. They were introduced extremely competently, as you would expect, by my noble and learned kinsman Lord Hope. It is important to get the right words in the right place in Bills such as this. He is absolutely right to point out the need to be sure that we are talking about the right thing when we say “freedom of expression”—that we do mean that and not “freedom of speech”; we should not get them mixed up—and, also, to have a consistent definition that can be referred to, because so much depends on it. Indeed, this group might have run better and more fluently if we had started with this amendment, which would have then led into the speeches from those who had the other amendments in the group.

The noble Baroness is not present today, but not for bad news: for good news. Her daughter is graduating and she wanted to be present at that; it is only right that she should do that. She will be back to pick up other aspects of the devolution issues she has been following very closely, and I will support her at that time.

The debate on freedom of expression was extremely interesting. It raised issues that, perhaps, could have featured more fully had this been timetabled differently, as both noble Lords who introduced amendments on this subject said. I will get my retaliation in first: a lot of what has been asked for will have been done. I am sure that the Minister will say that, if you look at the amendment to Clause 1, the requirement there is that freedom of expression is given priority in the overall approach to the Bill, and therefore, to a large extent, the requirement to replace that at various parts of the Bill may not be necessary. But I will leave him to expand on that; I am sure that he will.

Other than that, the tension I referred to in an earlier discussion, in relation to what we are made to believe about the internet and the social media companies, is that we are seeing a true public square, in which expressions and opinions can be exchanged as freely and openly as they would be in a public space in the real world. But, of course, neither of those places really exists, and no one can take the analogy further than has been done already.

The change, which was picked up by the noble Baroness, Lady Stowell, in relation to losing “legal but harmful”, has precipitated an issue which will be left to social media companies to organise and police—I should have put “policing” in quotation marks. As the noble Baroness, Lady Kidron, said, the remedy for much of this will be an appeals mechanism that works both at the company level and for the issues that need rebalancing in relation to complexity or because they are not being dealt with properly. We will not know that for a couple of years, but at least that has been provided for and we can look forward to it. I look forward to the Minister’s response.

Online Safety Bill

Lord Clement-Jones Excerpts

Report stage
Monday 10th July 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, given the hour, I will be brief. I wanted to thank my noble friend the Minister and the Secretary of State, and to congratulate my friend the noble Baroness, Lady Kidron, on such an important group. It is late at night and not many of us are left in the Chamber, but this is an important thing that they have succeeded in doing together, and it is important that we mark that. It is also a hugely important thing that the bereaved families for justice have achieved, and I hope that they have achieved a modicum of calm from having made such a big difference for future families.

I will make one substantive point, referencing where my noble friend the Minister talked about future Bills. In this House and in this generation, we are building the legal scaffolding for a digital world that already exists. The noble Lord, Lord Allan of Hallam, referenced the fact that much of this was built without much thought—not maliciously but just without thinking about the real world, life and death. In Committee, I was taken by the noble Lord, Lord Knight, mentioning the intriguing possibility of using the Data Protection and Digital Information Bill to discuss data rights and to go beyond the dreadful circumstances that these amendments cover to make the passing on of your digital assets something that is a normal part of our life and death. So I feel that this is the beginning of a series of discussions, not the end.

I hope that my noble friend the Minister and whichever of his and my colleagues picks up the brief for the forthcoming Bill can take to heart how we have developed all this together. I know that today has perhaps not been our most wholly collaborative day, but, in general, I think we all feel that the Bill is so much the better for the collaborative nature that we have all brought to it, and on no more important a topic than this amendment.

[Lord Clement-Jones (LD)]

My Lords, I will be extremely brief. We have come a very long way since the Joint Committee made its recommendations to the Government, largely, I think, as a result of the noble Baroness, Lady Kidron. I keep mistakenly calling her “Baroness Beeban”; familiarity breeds formality, or something.

I thank the Minister and the Secretary of State for what they have done, and the bereaved families for having identified these issues. My noble friend Lord Allan rightly identified the sentiments as grief and anger at what has transpired. All we can do is try to do, in a small way, what we can to redress the harm that has already been done. I was really interested in his insights into how a platform will respond and how this will help them through the process of legal order and data protection issues with a public authority.

My main question to the Minister is in that context—the relationship with the Information Commissioner’s Office—because there are issues here. There is, if you like, an overlap of jurisdiction with the ICO, because the potential or actual disclosure of personal data is involved, and therefore there will necessarily have to be co-operation between the ICO and Ofcom to ensure the most effective regulatory response. I do not know whether that has emerged on the Minister’s radar, but it certainly has emerged on the ICO’s radar. Indeed, in the ideal world, there probably should be some sort of consultation requirement on Ofcom to co-operate with the Information Commissioner in these circumstances. Anything that the Minister can say on that would be very helpful.

Again, this is all about reassurance. We must make sure that we have absolutely nailed down all the data protection issues involved in the very creative way the Government have responded to the requests of the bereaved families so notably championed by the noble Baroness, Lady Kidron.

[Lord Knight of Weymouth (Lab)]

My Lords, first, I associate myself with the excellent way in which the noble Baroness, Lady Harding, paid tribute to the work of the noble Baroness, Lady Kidron, on behalf of Bereaved Families for Online Safety, and with the comments she made about the Minister and the Secretary of State in getting us to this point, which were echoed by others.

I have attached my name, on behalf of the Opposition, to these amendments on the basis that if they are good enough for the noble Baroness, Lady Kidron, it ought to be good enough for me. We should now get on with implementing them. I am also hopeful to learn that the Minister has been liaising with the noble Baroness, Lady Newlove, to ensure that the amendments relating to coroners’ services, and the equivalent procurator fiscal service in Scotland, will satisfy her sense of what will work for victims. I am interested, also, in the answer to the question raised by the noble Baroness, Lady Kidron, regarding a requirement for senior managers to attend inquests. I liked what she had to say about the training for coroners being seeing as media literacy and therefore fundable from the levy.

All that remains is for me to ask three quick questions to get the Minister’s position clear regarding the interpretation of the new Chapter 3A, “Deceased Child Users”. First, the chapter is clear that terms of service must clearly and easily set out policy for dealing with the parents of a deceased child, and must provide a dedicated helpline and a complaints procedure. In subsection (2), does a helpline or similar—the “similar” being particularly important—mean that the provider must offer an accessible, responsive and interactive service? Does that need to be staffed by a human? I think it would be helpful for the Minister to confirm that is his intention that it should be, so that parents are not fobbed off with solely an automated bot-type service.

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[Lord Clement-Jones (LD)]

My Lords, very briefly, I commend these two amendments. Again, the provenance is very clear; the Joint Committee said:

“This regulatory alignment would simplify compliance for businesses, whilst giving greater clarity to people who use the service, and greater protection to children.”


It suggested that the Information Commissioner’s Office and Ofcom should issue a joint statement on how these two regulatory systems will interact once the Online Safety Bill has been enacted. That still sounds eminently sensible, a year and a half later.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, Amendments 100 and 101 seek further to define the meaning of “significant” in the children’s access assessment, with the intention of aligning this with the meaning of “significant” in the Information Commissioner’s draft guidance on the age-appropriate design code.

I am grateful to the noble Baroness, Lady Kidron, for the way in which she has set out the amendments and the swiftness with which we have considered it. The test in the access assessment in the Bill is already aligned with the test in the code, which determines whether a service is likely to be accessed by children in order to ensure consistency for all providers. The Information Commissioner’s Office has liaised with Ofcom on its new guidance on the likely to access test for the code, with the intention of aligning the two regulatory regimes while reflecting that they seek to do different things. In turn, the Bill will require Ofcom to consult the ICO on its guidance to providers, which will further support alignment between the tests. So while we agree about the importance of alignment, we think that it is already catered for.

With regard to Amendment 100, Clause 30(4)(a) already states that

“the reference to a ‘significant’ number includes a reference to a number which is significant in proportion to the total number of United Kingdom users of a service”.

There is, therefore, already provision in the Bill for this being a significant number in and of itself.

On Amendment 101, the meaning of “significant” must already be more than insignificant by its very definition. The amendment also seeks to define “significant” with reference to the number of children using a service rather than seeking to define what is a significant number.

I hope that that provides some reassurance to the noble Baroness, Lady Kidron, and that she will be content to withdraw the amendment.

Online Safety Bill

Lord Clement-Jones Excerpts

Report stage
Wednesday 12th July 2023 Lords Chamber

[Baroness Kidron (CB)]

My Lords, I too express my admiration to the noble Baroness, Lady Stowell, for her work on this group with the Minister and support the amendments in her name. To pick up on what the noble Baroness, Lady Harding, said about infinite ping-pong, it can be used not only to avoid making a decision but as a form of power and of default decision-making—if you cannot get the information back, you are where you are. That is a particularly important point and I add my voice to those who have supported it.

I have a slight concern that I want to raise in public, so that I have said it once, and get some reassurance from the Minister. New subsection (B1)(d) in Amendment 134 concerns the Secretary of State directing Ofcom to change codes that may affect

“relations with the government of a country outside the United Kingdom”.

Many of the companies that will be regulated sit in America, which has been very forceful about protecting its sector. Without expanding on this too much, when it was suggested that senior managers would face some sort of liability in international fora, various parts of the American Government and state apparatus certainly made their feelings clearly known.

I am sure that the channels between our Government and the US are much more straightforward than any that I have witnessed, but it is absolutely definite that more than one Member of your Lordships’ House was approached about the senior management and said, “This is a worry to us”. I believe that where we have landed is very good, but I would like the Minister to say what the limits of that power are and acknowledge that it could get in a bit of a muddle with the economic outcomes that we were talking about, celebrating that they had been taken off the list, and government relations. That was the thing that slightly worried me in the government amendments, which, in all other ways, I welcome.

[Lord Clement-Jones (LD)]

My Lords, this has been a consistent theme ever since the Joint Committee’s report. It was reported on by the Delegated Powers and Regulatory Reform Committee, and the Digital and Communications Committee, chaired by the noble Baroness, Lady Stowell, has rightly taken up the issue. Seeing some movement from the Minister, particularly on Clause 29 and specifically in terms of Amendments 134 to 137, is very welcome and consistent with some of the concerns that have been raised by noble Lords.

There are still questions to answer about Amendment 138, which my noble friend has raised. I have also signed the amendments to Clause 38 because I think the timetabling is extremely welcome. However, like other noble Lords, I believe we need to have Amendments 139, 140, 144 and 145 in place, as proposed by the noble Baroness, Lady Stowell of Beeston. The phrase “infinite ping-pong” makes us all sink in gloom, in current circumstances—it is a very powerful phrase. I think the Minister really does have to come back with something better; I hope he will give us that assurance, and that his discussions with the noble Baroness Stowell will bear further fruit.

I may not agree with the noble Lord, Lord Moylan, about the Clause 39 issues, but I am glad he raised issues relating to Clause 159. It is notable that of all the recommendations by the Delegated Powers and Regulatory Reform Committee, the Government accepted four out of five but did not accept the one related to what is now Clause 159. I have deliberately de-grouped the questions of whether Clauses 158 and 159 should stand part of the Bill, so I am going to pose a few questions which I hope, when we get to the second group which contains my clause stand part proposition, the Minister will be able to tell me effortlessly what he is going to do. This will prevent me from putting down further amendments on those clauses, because it seems to me that the Government are being extraordinarily inconsistent in terms of how they are dealing with Clauses 158 and 159 compared with how they have amended Clause 39.

For instance, Clause 158 allows the Secretary of State to issue a direction to Ofcom, where the Secretary of State has reasonable grounds for believing that there is a threat to public health and safety or national security, and they can direct Ofcom to set objectives in how they use their media-literacy powers in Section 11 of the Communications Act for a specific period to address the threat, and make Ofcom issue a public-statement notice. That is rather extraordinary. I will not go into great detail at this stage, and I hope the Minister can avoid me having to make a long speech further down the track, but the Government should not be in a position to be able to direct a media regulator on a matter of content. For instance, the Secretary of State has no powers over Ofcom on the content of broadcast regulation—indeed, they have limited powers to direct over radio spectrum and wires—and there is no provision for parliamentary involvement, although I accept that the Secretary of State must publish reasons for the direction. There is also the general question of whether the threshold is high enough to justify this kind of interference. So Clause 158 is not good news at all. It raises a number of questions which I hope the Minister will start to answer today, and maybe we can avoid a great debate further down the track.

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The noble Lord, Lord Clement-Jones, asked why it is necessary for the Secretary of State to have powers over Ofcom in certain circumstances. We expect the media literacy powers to be used only in exceptional circumstances where it is right that the Secretary of State should have the power to direct the regulator.

[Lord Clement-Jones (LD)]

My Lords, the key question is this: why have these powers over social media when the Secretary of State does not have them over broadcast?

[Lord Parkinson of Whitley Bay (Con)]

If I may, I will write to the noble Lord having reflected on that question further. We are talking here about the provisions set up in the Bill to deal with online harms; clearly, that is the focus here, which is why this Bill deals with that. I will speak to colleagues who look at other areas and respond further to the noble Lord’s question.

Let me reassure the noble Baroness, Lady Fox, that, through this Bill, both Ofcom and providers are being asked to have regard to freedom of expression. Ofcom already has obligations under the Human Rights Act to be bound by the European Convention on Human Rights, including Article 10 rights relating to freedom of expression. Through this Bill, user-to-user and search services will have to consider and implement safeguards for freedom of expression when fulfilling their duties. Those points are uppermost in our minds.

I am grateful for the support expressed by noble Lords for the government amendments in this group. Given the mixed messages of support and the continued work with my noble friend Lady Stowell of Beeston, I urge her not to move her amendments.

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Moved by

[Lord Clement-Jones]

152A: Clause 49, page 49, line 22, at end insert “including user generated or controlled characters and objects with which user characters interact in visual or audio environments within which users interact”
Member’s explanatory statement
This amendment seeks to probe whether the bill sufficiently covers certain harmful content users may encounter in services, for example in the metaverse.

[Lord Clement-Jones (LD)]

My Lords, we had a pretty extensive future-proofing debate in Committee, which I was sadly unable to take part in, but I start this debate with a sinking feeling about the scope of the Bill. This amendment relates to the metaverse in particular.

In metaverse or game-type settings, users interact in a visual or audio environment that is wholly or in part created by the service provider. An analogy might be that the service provider supplies an immersive stage environment for people to act upon, complete with scenery, computer-generated props and characters, some of which could be harmful. The environment created or enabled by the service provider could itself be harmful to children and even adults—for instance, a World War II concentration camp, a sex shop or a Ku Klux Klan rally; at least one online game has allowed people to play the role of an Auschwitz camp guard.

I am particularly influenced by a report from the Center for Countering Digital Hate, Horizon Worlds Exposed, and the research for it, which was carried out by the online CSEA covert intelligence team. This may have been cited earlier but they found that minors are routinely harassed and exposed to adult content on Meta’s flagship virtual reality social network, Horizon Worlds. The research follows Meta’s announcements that Horizon Worlds would be opening up to 13 to 17 year-olds, showing that it is already failing to prevent minors accessing mature content, despite a supposed ban on them accessing its VR applications.

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[Lord Parkinson of Whitley Bay (Con)]

I will begin with that. The metaverse is in scope of the Bill, which, as noble Lords know, has been designed to be technology neutral and future-proofed to ensure that it keeps pace with emerging technologies—we have indeed come a long way since the noble Lord, Lord Clement-Jones, the noble Lords opposite and many others sat on the pre-legislative scrutiny committee for the Bill. Even as we debate, we envisage future technologies that may come. But the metaverse is in scope.

The Bill will apply to companies that enable users to share content online or to interact with each other, as well as search services. That includes a broad range of services, such as websites, applications, social media services, video games and virtual reality spaces, including the metaverse.

Any service that enables users to interact, as the metaverse does, will need to conduct a child access test and will need to comply with the child safety duties—if it is likely to be accessed by children. Content is broadly defined in the Bill as,

“anything communicated by means of an internet service”.

Where this is uploaded, shared or directly generated on a service by a user and able to be encountered by other users, it will be classed as user-generated content. In the metaverse, this could therefore include things like objects or avatars created by users. It would also include interactions between users in the metaverse such as chat—both text and audio—as well as images, uploaded or created by a user.

[Lord Clement-Jones (LD)]

My Lords, I hope I am not interrupting the Minister in full flow. He has talked about users entirely. He has not yet got to talking about what happens where the provider is providing that environment—in exactly the way in which the noble Lord, Lord Knight, illustrated.

[Lord Parkinson of Whitley Bay (Con)]

We talked about bots controlled by service providers before the noble Lord, Lord Knight, asked questions on this. The Bill is designed to make online service providers responsible for the safety of their users in light of harmful activities that their platforms might facilitate. Providers of a user-to-user service will need to adhere to their duties of care, which apply to all user-generated content present on their service. The Bill does not, however, regulate content published by user-to-user providers themselves. That is because the providers are liable for the content they publish on the service themselves. The one exception to this—as the noble Baroness, Lady Kidron, alluded to in her contribution—is pornography, which poses a particular risk to children and is regulated by Part 5 of the Bill.

I am pleased to reassure the noble Lord, Lord Clement- Jones, that the Bill—

[Lord Parkinson of Whitley Bay (Con)]

I will write to noble Lords with further information and will make sure that I have picked up correctly the questions that they have asked.

On Amendment 152A, which the noble Lord, Lord Clement-Jones, has tabled, I am pleased to assure him that the Bill already achieves the intention of the amendment, which seeks to add characters and objects that might interact with users in the virtual world to the Bill’s definition of user-generated content. Let me be clear again: the Bill already captures any service that facilitates online user-to-user interaction, including in the metaverse or other augmented reality or immersive online worlds.

The Bill broadly defines “content” as

“anything communicated by means of an internet service”,

so it already captures the various ways in which users may encounter content. Clause 211 makes clear that “encounter” in relation to content for the purposes of the Bill means to,

“read, view, hear or otherwise experience”

content. That definition extends to the virtual worlds which noble worlds have envisaged in their contributions. It is broad enough to encompass any way of encountering content, whether that be audio-visually or through online avatars or objects.

In addition, under the Bill’s definition of “functionality”,

“any feature that enables interactions of any description between users of the service”

will be captured. That could include interaction between avatars or interaction by means of an object in a virtual world. All in-scope services must therefore consider a range of functionalities as part of their risk assessment and must put in place any necessary measures to mitigate and manage any risks that they identify.

I hope that that provides some assurance to the noble Lord that the concerns that he has raised are covered, but I shall happily write on his further questions before we reach the amendment that the noble Baroness, Lady Finlay, rightly flagged in her contribution.

[Lord Clement-Jones (LD)]

I thank the Minister. I feel that we have been slightly unfair because we have been asking questions about an amendment that we have not been able to table. The Minister has perfectly well answered the actual amendment itself and has given a very positive reply—and in a sense I expected him to say what he said about the actual amendment. But, of course, the real question is about an amendment that I was unable to table.

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[Baroness Stowell of Beeston (Con)]

My Lords, I shall speak very briefly. I feel a responsibility to speak, having spoken in Committee on a similar group of amendments when the noble Lords, Lord Lipsey and Lord McNally, were not available. I spoke against their amendments then and would do so again. I align myself with the comments of my noble friend Lord Black, the noble Lord, Lord Faulks, and the noble Viscount, Lord Colville. As the noble Baroness, Lady Fox, just said, they gave a comprehensive justification for that position. I have no intention of repeating it, or indeed repeating my arguments in Committee, but I think it is worth stating my position.

[Lord Clement-Jones (LD)]

My Lords, we have heard some very well-rehearsed lines during the debate today, with the usual protagonists. Nevertheless, the truth of the matter is that the Press Recognition Panel is as frustrated as many of us on these Benches and other Benches at the failure to implement a post-Leveson scheme of press regulation. Despite many efforts, it has never been fully put into effect.

I do not think I need to repeat a great deal of what has been said today. For instance, the record of IPSO, which the noble Lord, Lord Faulks, talked about, has been very well tracked by Hacked Off. This is not a proposal for state regulation—which is so often, if you like, the canard placed on it.

If not this Bill, which Bill? The media Bill is not going to tackle issues such as this, as my noble friend Lord McNally said. As the noble Lord, Lord Stevenson, has pointed out, this Bill has been a series of conversations —extremely fruitful conversations—but in this particular direction it has borne no fruit at all.

I must admit that, throughout my looking at the draft Bill and continuing to look through its various versions, this opt-out for news publishers has remained a puzzle. The below-the-line opt-out for the mainstream news media always strikes me as strange, because there is no qualification that there should be any curation of that below-the-line, user-generated content. That is peculiar, and it is rather like somebody in the last chance saloon being rewarded with a bouquet. It seems a rather extraordinary provision.

My noble friend Lord Allan rightly pointed to some of the dangers in the new provisions, and indeed in the provisions generally, for these services. I hope the Minister has at least some answers to give to the questions he raised. Progress on this and the scheme that the PRP was set up to oversee, which is still not in place, remain a source of great division across the parties and within them. There is still hope; it may be that under a different Government we would see a different result.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I was unfortunately unable to attend round 1 of this debate—I had to leave. My noble friend Lord Knight has absented himself from hearing what I am going to say about his remarks, so he must fear that he had got his lines wrong. I apologised to him for leaving him a bit exposed, because we had not quite anticipated how the conversation would go, but I think he did as well as he could, and I repeat the lines he said: this is not the right Bill to rerun the arguments about the Leveson report. I still believe that. The noble Lord, Lord Clement-Jones, does not think the media Bill is; maybe it is not, but at least we can make sure that the debate is properly argued.

It is interesting that, although we clearly have well-defined positions and antipathies present in the debate, a number of things have been said today that will be helpful, if we manage to get a little closer, in trying to resolve some of the issues outstanding. If I am still around and involved in it, I will approach this by trying to see what we can do together rather than the rights and wrongs of positions we have adopted before. It has worked for this Bill: we have achieved huge changes to the Bill because we decided from the start that we would try to see what was the best that could come out of it. That is the instinct I have as we go forward to any future debate and discussion, whether or not it is on the media Bill.

The puzzling thing here is why this is such a continuing concern that it needs to be brought into to any opportunity we have to discuss these areas. The sense we had in the pre-legislative scrutiny committee, which discussed this to some extent but not in quite the same range as we have tonight, or even in Committee, was that the issues raised in this Bill were really about protecting freedom of expression. At that stage, the Bill still had the legal but harmful clauses in it so perhaps had had less exposure to those issues in the debate we had. I still think it is primarily about that. I still have real concerns about it, as have been raised by one or two people already in our discussion. I do not think the recognised news provider definition is a good one; I do not think the definition of a journalist is a good one. The pre-legislative scrutiny committee wanted an objective test of material based around public interest, but the Government would not accept that, so we are where we are. We must try to ensure that what works is what we have in the Bill in relation to the topics before it.

The primary purpose must be to ensure material that will inform and enhance our knowledge about democracy, current affairs and issues that need to be debated in the public space, so it is clearly right that that which is published by recognised journalists—quality journalists is another phrase that has been used—should be protected, perhaps more than other material, but at the fringes there are still doubts as to whether the Bill does that.

I had taken it that in the amendments I signed up to, government Amendments 158 and 161, the material we were talking about was from recognised news publishers, not material self-generated in social media. I am looking hard at the Minister hoping he will be able to come to my aid when he comes to respond. The issue here is about making sure that material that was not originally broadcast but is still provided by a recognised news publisher is protected from being taken down, and it would not have been if those amendments were not made. I hope that is the right interpretation. That was the basis on which I signed up for them; I do not know quite where it leaves me if that is wrong.

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[Lord Clement-Jones (LD)]

My Lords, I strongly support Amendment 180, tabled by the noble Baroness, Lady Merron. I will also explain why I put forward Amendment 180A. I pay tribute to the noble Baroness, Lady Hayman, who pursued this issue with considerable force through her Question in the House.

There is clearly an omission in the Bill. One of its primary aims is to protect children from harmful online content, and animal cruelty content causes harm to the animals involved and, critically, to the people who view it, especially children. In Committee, in the Question and today, we have referred to the polling commissioned by the RSPCA, which found that 23% of 10 to 18 year-olds had seen animal cruelty on social media sites. I am sure that the numbers have increased since that survey in 2018. A study published in 2017 found—if evidence were needed—that:

“There is emerging evidence that childhood exposure to maltreatment of companion animals is associated with psychopathology in childhood and adulthood.”


The noble Baroness made an extremely good case, and I do not think that I need to add to it. When the Bill went through the Commons, assurances were given by the former Minister, Damian Collins, who acknowledged that the inclusion of animal cruelty content in the Bill deserves further consideration as the Bill progresses through its parliamentary stages. We need to keep up that pressure, and we will be very much supporting the noble Baroness if she asks for the opinion of the House.

Turning to my Amendment 180A, like the noble Baroness, I pay tribute to the Social Media Animal Cruelty Coalition, which is a very large coalition of organisations. We face a global extinction crisis which the UK Government themselves have pledged to reverse. Algorithmic amplification tools and social media recommendation engines have driven an explosive growth in online wildlife trafficking. A National Geographic article from 2020 quoted US wildlife officials describing the dizzying scale of the wildlife trade on social media. The UK’s national wildlife crime units say that cyber-enabled wildlife crime has become their priority focus, since virtually all wildlife cases they now investigate have a cyber component to them, usually involving social media or e-commerce platforms. In a few clicks it is easy to find pages, groups and postings selling wildlife products made from endangered species, such as elephant ivory, rhino horn, pangolin scales and marine turtle shells, as well as big cats, reptiles, birds, primates and insects for the exotic pet trade. This vast, unregulated trade in live animals and their parts is not only illegal but exacerbates the risk of another animal/human spillover event such as the ones that caused Ebola, HIV and the Covid-19 pandemic.

In addition to accepting the animal welfare amendment tabled by the noble Baroness, which I hope they do, the Government should also add offences under the Control of Trade in Endangered Species Regulations 2018 to Schedule 7 to the Bill. This would definitely help limit the role of social media platforms in enabling wildlife trafficking, helping to uphold the UK’s commitments to tackling global wildlife crime.

[Baroness Kidron (CB)]

My Lords, I rise very briefly to support the noble Baroness, Lady Merron, and to make only one point. As someone who has the misfortune of seeing a great deal of upsetting material of all kinds, I have to admit that it sears an image on your mind. I have had the misfortune to see the interaction of animal and human cruelty in the same sequences, again and again. In making the point that there is a harm to humans in witnessing and normalising this kind of material, I offer my support to the noble Baroness.

[The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)]

My Lords, Amendments 180 and 180A seek to require the Secretary of State to conduct a review of existing legislation and how it relates to certain animal welfare offences and, contingent on this review, to make them priority offences under the regulatory framework.

I am grateful for this debate on the important issue of protecting against animal cruelty online, and all of us in this House share the view of the importance of so doing. As the House has discussed previously, this Government are committed to strong animal welfare standards and protections. In this spirit, this Government recognise the psychological harm that animal cruelty content can cause to children online. That is why we tabled an amendment that lists content that depicts real or realistic serious violence or injury against an animal, including by fictional creatures, as priority content that is harmful to children. This was debated on the first day of Report.

In addition, all services will need proactively to tackle illegal animal cruelty content where this amounts to an existing offence such as extreme pornography. User-to-user services will be required swiftly to remove other illegal content that targets an individual victim once made aware of its presence.

The noble Baroness asked about timing. We feel it is important to understand how harm to animals as already captured in the Bill will function before committing to the specific remedy proposed in the amendments.

As discussed in Committee, the Bill’s focus is rightly on ensuring that humans, in particular children, are protected online, which is why we have not listed animal offences in Schedule 7. As many have observed, this Bill cannot fix every problem associated with the internet. While we recognise the psychological harm that can be caused to adults by seeing this type of content, listing animal offences in Schedule 7 is likely to dilute providers’ resources away from protecting humans online, which is the Bill’s main purpose.

However, I understand the importance of taking action on animal mistreatment when committed online, and I am sympathetic to the intention of these amendments. As discussed with the noble Baroness, Defra is confident that the Animal Welfare Act 2006 and its devolved equivalents can successfully bring prosecutions for the commission and action of animal torture when done online in the UK. These Acts do not cover acts of cruelty that take place outside the UK. I know from the discussion we have had in this House that there are real concerns that the Animal Welfare Act 2006 cannot tackle cross-border content, so I wish to make a further commitment today.

The Government have already committed to consider further how the criminal law can best protect individuals from harmful communications, alongside other communications offences, as part of changes made in the other place. To that end, we commit to include the harm caused by animal mistreatment communications as part of this assessment. This will then provide a basis for the Secretary of State to consider whether this offence should be added to Schedule 7 to the OSB via the powers in Clause 198. This work will commence shortly, and I am confident that this, in combination with animal cruelty content listed as priority harms to children, will safeguard users from this type of content online.

For the reasons set out, I hope the noble Baroness and the noble Lord will consider not pressing their amendments.

[Lord Clement-Jones (LD)]

The Minister has not dealt with Amendment 180A at all.

[Viscount Camrose (Con)]

I will be happy to write to the noble Lord.

[Lord Clement-Jones (LD)]

That really is not good enough, if I may say so. Does the Minister not have any brief of any kind on Amendment 180A?

[Viscount Camrose (Con)]

I am sorry if the noble Lord feels that I have not dealt with it at all.

[Lord Clement-Jones (LD)]

The words “animal trafficking” have not passed his lips.

[Viscount Camrose (Con)]

I am sorry; I will have to write to the noble Lord.

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[Baroness Kidron (CB)]

My Lords, I rise to make a slightly lesser point, but I also welcome these amendments. I want to ask the Minister where the consultation piece of this will lie and to check that all the people who have been in this space for many years will be consulted.

[Lord Clement-Jones (LD)]

My Lords, as ever, my noble friend Lord Allan and the noble Baroness, Lady Kidron, have made helpful, practical and operational points that I hope the Minister will be able to answer. In fact, the first half of my noble friend’s speech was really a speech that the Minister himself could have given in welcoming the amendment, which we do on these Benches.

Online Safety Bill

Lord Clement-Jones Excerpts

Report stage
Monday 17th July 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, I will speak briefly on a couple of amendments and pick up from where the noble Lord, Lord Allan, just finished on Amendment 186A. I associate myself with all the comments that the noble Baroness, Lady Kidron, made on her Amendment 191A. As ever, she introduced the amendment so brilliantly that there is no need for me to add anything other than my wholehearted support.

I will briefly reference Amendment 253 from the noble Lord, Lord Clement-Jones. Both his amendment and my noble friend Lord Moylan’s point to one of the challenges about regulating the digital world, which is that it touches everything. We oscillate between wanting to compartmentalise the digital and recognising that it is interconnected to everything. That is the same challenge faced by every organisation that is trying to digitise: do you ring-fence or recognise that it touches everything? I am very supportive of the principles behind Amendment 253 precisely because, in the end, it does touch everything. It is hugely important that, even though this Bill and others still to come are creating an extraordinarily powerful single regulator in the form of Ofcom, we also recognise the interconnectivity of the regulatory landscape. The amendment is very well placed, and I hope my noble friend the Minister looks favourably on it and its heritage from the pre-legislative scrutiny committee.

I will briefly add my thoughts on Amendment 186A in this miscellaneous group. It feels very much as if we are having a Committee debate on this amendment, and I thank my noble friend Lord Moylan for introducing it. He raises a hugely important point, and I am incredibly sympathetic to the logic he set out.

In this area the digital world operates differently from the physical world, and we do not have the right balance at all between the powers of the big companies and consumer rights. I am completely with my noble friend in the spirit in which he introduced the amendment but, together with the noble Lord, Lord Allan, I think it would be better tackled in the Digital Markets, Competition and Consumers Bill, precisely because it is much broader than online safety. This fundamentally touches the issue of consumer rights in the digital world and I am worried that, if we are not careful, we will do something with the very best intentions that actually makes things slightly worse.

I worry that the terms and conditions of user-to-user services are incomprehensible to consumers today. Enshrining it as a contract in law might, in some cases, make it worse. Today, when user-to-user services have used our data for something, they are keen to tell us that we agreed to it because it was in their terms of service. My noble friend opens up a really important issue to which we should give proper attention when the Digital Markets, Competition and Consumers Bill arrives in the House. It is genuinely not too late to address that, as it is working its way through the Commons now. I thank my noble friend for introducing the amendment, because we should all have thought of the issue earlier, but it is much broader than online safety.

[Lord Clement-Jones (LD)]

My Lords, even by previous standards, this is the most miscellaneous of miscellaneous groups. We have ranged very broadly. I will speak first to Amendment 191A from the noble Baroness, Lady Kidron, which was so well spoken to by her and by the noble Baroness, Lady Harding. It is common sense, and my noble friend Lord Allan, as ever, put his finger on it: it is not as if coroners are going to come across this every day of the week; they need this kind of guidance. The Minister has introduced his amendments on this, and we need to reduce those to an understandable code for coroners and bereaved parents. I defy anybody, apart from about three Members of this House, to describe in any detail how the information notices will interlock and operate. I could probably name those Members off the top of my head. That demonstrates why we need such a code of practice. It speaks for itself.

I am hugely sympathetic to Amendment 275A in the name of the noble Baroness, Lady Finlay, who asked a series of important questions. The Minister said at col. 1773 that he would follow up with further information on the responsibility of private providers for their content. This is a real, live issue. The noble Baroness, Lady Kidron, put it right: we hope fervently that the Bill covers the issue. I do not know how many debates about future-proofing we have had on the Bill but each time, including in that last debate, we have not quite been reassured enough that we are covering the metaverse and provider content in the way we should be. I hope that this time the Minister can give us definitive chapter and verse that will help to settle the horses, so to speak, because that is exactly what the very good amendment in the name of the noble Baroness, Lady Finlay, was about.

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[Lord Parkinson of Whitley Bay (Con)]

We are keen to ensure that coroners have access to the information and expertise that they need, while respecting the independence of the judicial process to decide what they do not know and would like to know more about and the role of the Chief Coroner there. It is a point that I have discussed a lot with the noble Baroness and with my noble friend Lady Newlove in her former role as Victims’ Commissioner. I am very happy to continue doing so because it is important that there is access to that.

The noble Lord, Lord Stevenson, spoke to the amendments tabled by the noble Baroness, Lady Merron, about supposedly gendered language in relation to Clauses 141 and 157. As I made clear in Committee, I appreciate the intention—as does Lady Deben—of making clear that a person of either sex can perform the role of chairman, just as they can perform the role of ombudsman. We have discussed in Committee the semantic point there. The Government have used “chairman” here to be consistent with terminology in the Office of Communications Act 2002. I appreciate that this predates the Written Ministerial Statement which the noble Lord cited, but that itself made clear that the Government at the time recognised that in practice, parliamentary counsel would need to adopt a flexible approach to this change—for example, in at least some of the cases where existing legislation originally drafted in the former style is being amended.

The noble Lord may be aware of a further Written Ministerial Statement, made on 23 May last year, following our debates on gendered language on another Bill, when the then Lord President of the Council and Leader of the House of Commons said that the Office of the Parliamentary Counsel would update its drafting guidance in light of that. That guidance is still forthcoming. However, importantly, the term here will have no bearing on Ofcom’s decision-making on who would chair the advisory committees. It must establish that this could indeed be a person of either sex.

Amendment 253 seeks to enable co-operation, particularly via information-sharing, between Ofcom and other regulators within the UK. I reassure noble Lords that Section 393 of the Communications Act 2003 already includes provisions for sharing information between Ofcom and other regulators in the UK.

As has been noted, Ofcom already co-operates effectively with other domestic regulators. That has been strengthened by the establishment of the Digital Regulation Co-operation Forum. By promoting greater coherence, the forum helps to resolve potential tensions, offering clarity for people and the industry. It ensures collaborative work across areas of common interest to address complex problems. Its outputs have already delivered real and wide-ranging impacts, including landmark policy statements clarifying the interactions between digital regulatory regimes, research into cross-cutting issues, and horizon-scanning activities on new regulatory challenges. We will continue to assess how best to support collaboration between digital regulators and to ensure that their approaches are joined up. We therefore do not think that Amendment 253 is necessary.

[Lord Clement-Jones (LD)]

My Lords, the Minister has not stated that there is a duty to collaborate. Is he saying that that is, in fact, the case in practice?

[Lord Parkinson of Whitley Bay (Con)]

Yes, there is a duty, and the law should be followed. I am not sure whether the noble Lord is suggesting that it is not—

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[Lord Clement-Jones (LD)]

Is there a duty to collaborate between regulators?

[Lord Parkinson of Whitley Bay (Con)]

I am not sure that I follow the noble Lord’s question, but perhaps—

[Lord Clement-Jones (LD)]

My Lords, the Minister is saying that, in practice, there is a kind of collaboration between regulators and that there is a power under the Communications Act, but is he saying that there is any kind of duty on regulators to collaborate?

[Lord Parkinson of Whitley Bay (Con)]

If I may, I will write to the noble Lord setting that out; he has lost me with his question. We believe, as I think he said, that the forum has added to the collaboration in this important area.

The noble Baroness, Lady Finlay, raised important questions about avatars and virtual characters. The Bill broadly defines “content” as

“anything communicated by means of an internet service”,

meaning that it already captures the various ways through which users may encounter content. In the metaverse, this could therefore include things such as avatars or characters created by users. As part of the user-to-user services’ risk assessments, providers will be required to consider more than the risk in relation to user-generated content, including aspects such as how the design and operation of their services, including functionality and how the service is used, might increase the risk of harm to children and the presence of illegal content. A user-to-user service will need to consider any feature which enables interaction of any description between users of the service when carrying out its risk assessments.

The Bill is focused on user-to-user and search services, as there is significant evidence to support the case for regulation based on the risk of harm to users and the current lack of regulatory and other accountability in this area. Hosting, sharing and the discovery of user-generated content and activity give rise to a range of online harms, which is why we have focused on those services. The Bill does not regulate content published by user-to-user service providers themselves; instead, providers are already liable for the content that they publish on their services themselves, and the criminal law is the most appropriate mechanism for dealing with services which publish illegal provider content.

The noble Baroness’s Amendment 275A seeks to require Ofcom to produce a wide-ranging report of behaviour facilitated by emerging technologies. As we discussed in Committee, the Government of course agree that Ofcom needs continually to assess future risks and the capacity of emerging technologies to cause harm. That is why the Bill already contains provisions which allow it to carry out broad horizon scanning, such as its extensive powers to gather information, to commission skilled persons’ reports and to require providers to produce transparency reports. Ofcom has already indicated that it plans to research emerging technologies, and the Bill will require it to update its risk assessments, risk profiles and codes of practice with the outcomes of this research where relevant.

As we touched on in Committee, Clause 56 requires regular reviews by Ofcom into the incidence of content that is harmful to children, and whether there should be changes to regulations setting out the kinds of content that are harmful to children. In addition, Clause 143 mandates that Ofcom should investigate users’ experience of regulated services, which are likely to cover user interactions in virtual spaces, such as the metaverse and those involving content generated by artificial intelligence.

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[Lord Parkinson of Whitley Bay (Con)]

I am happy to provide further detail in writing and to reiterate the points I have made as it is rather technical. Content that is published by providers of user-to-user services themselves is not regulated by the Bill because providers are liable for the content they publish on the services themselves. Of course, that does not apply to pornography, which we know poses a particular risk to children online and is regulated through Part 5 of the Bill. I will set out in writing, I hope more clearly, for the noble Baroness what is in scope to reassure her about the way the Bill addresses the harms that she has rightly raised.

[Lord Clement-Jones (LD)]

Will the Minister copy other Members in?

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[Lord Moylan (Con)]

My Lords, it is valuable to be able to speak immediately after my noble friend Lady Harding of Winscombe, because it gives me an opportunity to address some remarks she made last Wednesday when we were considering the Bill on Report. She suggested that there was a fundamental disagreement between us about our view of how serious online safety is—the suggestion being that somehow I did not think it was terribly important. I take this opportunity to rebut that and to add to it by saying that other things are also important. One of those things is privacy. We have not discussed privacy in relation to the Bill quite as much as we have freedom of expression, but it is tremendously important too.

Government Amendment 247A represents the most astonishing level of intrusion. In fact, I find it very hard to see how the Government think they can get away with saying that it is compatible with the provisions of the European Convention on Human Rights, which we incorporated into law some 20 years ago, thus creating a whole law of privacy that is now vindicated in the courts. It is not enough just to go around saying that it is “proportionate and necessary” as a mantra; it has to be true.

This provision says that an agency has the right to go into a private business with no warrant, and with no let or hindrance, and is able to look at its processes, data and equipment at will. I know of no other business that can be subjected to that without a warrant or some legal process in advance pertinent to that instance, that case or that business.

My noble friend Lord Bethell said that the internet has been abused by people who carry out evil things; he mentioned terrorism, for example, and he could have mentioned others. However, take mobile telephones and Royal Mail—these are also abused by people conducting terrorism, but we do not allow those communications to be intruded into without some sort of warrant or process. It does not seem to me that the fact that the systems can be abused is sufficient to justify what is being proposed.

My noble friend the Minister says that this can happen only offline. Frankly, I did not understand what he meant by that. In fact, I was going to say that I disagreed with him, but I am moving to the point of saying that I think it is almost meaningless to say that it is going to happen offline. He might be able to explain that. He also said that Ofcom will not see individual traffic. However, neither the point about being offline nor the point about not seeing individual traffic is on the face of the Bill.

When we ask ourselves what the purpose of this astonishing power is—this was referred to obliquely to some extent by the noble Baroness, Lady Fox of Buckley—we can find it in Clause 91(1), to which proposed new subsection (2A) is being added or squeezed in subordinate to it. Clause 91(1) talks about

“any information that they”—

that is, Ofcom—

“require for the purpose of exercising, or deciding whether to exercise, any of their online safety functions”.

The power could be used entirely as a fishing expedition. It could be entirely for the purpose of educating Ofcom as to what it should be doing. There is nothing here to say that it can have these powers of intrusion only if it suspects that there is criminality, a breach of the codes of conduct or any other offence. It is a fishing expedition, entirely for the purpose of

“exercising, or deciding whether to exercise”.

Those are the intrusions imposed upon companies. In some ways, I am less concerned about the companies than I am about what I am going to come to next: the intrusion on the privacy of individuals and users. If we sat back and listened to ourselves and what we are saying, could we explain to ordinary people—we are going to come to this when we discuss end-to-end encryption—what exactly can happen?

Two very significant breaches of the protections in place for privacy on the internet arise from what is proposed. First, if you allow someone into a system and into equipment, especially from outside, you increase the risk and the possibility that a further, probably more hostile party that is sufficiently well-equipped with resources—we know state actors with evil intent which are so equipped—can get in through that or similar holes. The privacy of the system itself would be structurally weakened as a result of doing this. Secondly, if Ofcom is able to see what is going on, the system becomes leaky in the direction of Ofcom. It can come into possession of information, some of which could be of an individual character. My noble friend says that it will not be allowed to release any data and that all sorts of protections are in place. We know that, and I fully accept the honesty and integrity of Ofcom as an institution and of its staff. However, we also know that things get leaked and escape. As a result of this provision, very large holes are being built into the protections of privacy that exist, yet there has been no reference at all to privacy in the remarks made so far by my noble friend.

I finish by saying that we are racing ahead and not thinking. Good Lord, my modest amendment in the last group to bring a well-established piece of legislation—the Consumer Rights Act—to bear upon this Bill was challenged on the grounds that there had not been an impact assessment. Where is the impact assessment for this? Where is even the smell test for this in relation to explaining it to the public? If my noble friend is able to expatiate at the end on the implications for privacy and attempt to give us some assurance, that would be some consolation. I doubt that he is going to give way and do the right thing and withdraw this amendment.

[Lord Clement-Jones (LD)]

My Lords, the debate so far has been—in the words of the noble Baroness, Lady Fox—a Committee debate. That is partly because this set of amendments from the Government has come quite late. If they had been tabled in Committee, I think we would have had a more expansive debate on this issue and could have knocked it about a bit and come back to it on Report. The timing is regrettable in all of this.

That said, the Government have tabled some extremely important amendments, particularly Amendments 196 and 198, which deal with things such as algorithms and functionalities. I very much welcome those important amendments, as I know the noble Baroness, Lady Kidron, did.

I also very much support Amendments 270 and 272 in the name of the noble Baroness, Lady Fraser. I hope the Minister, having been pre-primed, has all the answers to them. It is astonishing that, after all these years, we are so unattuned to the issues of the devolved Administrations and that we are still not in the mindset on things such as research. We are not sufficiently granular, as has been explained—let alone all the other questions that the noble Lord, Lord Stevenson, asked. I hope the Minister can unpack some of that as well.

I want to express some gratitude, too, because the Minister and his officials took the trouble to give us a briefing about remote access issues, alongside Ofcom. Ofcom also sent through its note on algorithmic assessment powers, so an effort has been made to explain some of these powers. Indeed, I can see the practical importance, as explained to us. It is partly the lateness, however, that sets off what my noble friend Lord Allan called “trigger words” and concerns about the remote access provisions. Indeed, I think we have a living and breathing demonstration of the impact of triggers on the noble Lord, Lord Moylan, because these are indeed issues that concern those outside the House to quite a large degree.

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[Lord Parkinson of Whitley Bay (Con)]

Yes, and we can point to the current actions of Ofcom to show that it is indeed doing this already, even without that legislative stick.

I turn to the amendments in the name of my noble friend Lord Bethell and the noble Lord, Lord Clement-Jones, on researchers’ access to data. Amendment 237ZA would confer on the Secretary of State a power to make provisions about access to information by researchers. As my noble friend knows, we are sympathetic to the importance of this issue, which is why we have tabled our own amendments in relation to it. However, as my noble friend also knows, in such a complex and sensitive area that we think it is premature to endow the Secretary of State with such broad powers to introduce a new framework. As we touched on in Committee, this is a complex and still nascent area, which is why it is different from the other areas to which the noble Lord, Lord Clement-Jones, pointed in his contribution.

[Lord Clement-Jones (LD)]

The noble Baroness, Lady Harding, made the point that in other areas where the Minister has agreed to reviews or reports, there are backstop powers; for instance, on app stores. Of course, that was a negotiated settlement, so to speak, but why can the Minister not accede to that in the case of access for researchers, as he has with app stores? Indeed, there is one other example that escapes me, which the Minister has also agreed to.

[Lord Parkinson of Whitley Bay (Con)]

We touched on the complexity of defining who and what is a researcher and making sure that we do not give rise to bad actors exploiting that. This is a complex area, as we touched on in Committee. As I say, the evidence base here is nascent. It is important first to focus on developing our understanding of the issues to ensure that any power or legislation is fit to address those challenges. Ofcom’s report will not only highlight how platforms can share data with researchers safely but will provide the evidence base for considering any future policy approaches, which we have committed to doing but which I think the noble Lord will agree are worthy of further debate and reflection in Parliament.

[Lord Clement-Jones (LD)]

The benefit of having a period of time between the last day of Report on Wednesday and Third Reading is that that gives the Minister, the Bill team and parliamentary counsel the time to reflect on the kind of power that could be devised. The wording could be devised, and I would have thought that six weeks would be quite adequate for that, perhaps in a general way. After all, this is not a power that is immediately going to be used; it is a general power that could be brought into effect by regulation. Surely it is not beyond the wit to devise something suitable.

[Baroness Kidron (CB)]

Before the Minister stands up, I also wondered—

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[Baroness Kidron (CB)]

My Lords, I will speak to the government Amendments 274B and 274C. I truly welcome a more detailed approach to Ofcom’s duties in relation to media literacy. However, as is my theme today, I raise two frustrations. First, having spent weeks telling us that it is impossible to include harms that go beyond content and opposing amendments on that point, the Government’s media literacy strategy includes a duty to help users to understand the harmful ways in which regulated services may be used. This is in addition to understanding the nature and impact of harmful content. It appears to suggest that it is the users who are guilty of misuse of products and services rather than putting any emphasis on the design or processes that determine how a service is most often used.

I believe that all of us, including children, are participants in creating an online culture and that educating and empowering users of services is essential. However, it should not be a substitute for designing a service that is safe by design and default. To make my point absolutely clear, I recount the findings of researchers who undertook workshops in 28 countries with more than 1,000 children. The researchers were at first surprised to find that, whether in Kigali, São Paulo or Berlin, to an overwhelming extent children identified the same problems online—harmful content, addiction, privacy, lack of privacy and so on. The children’s circumstances were so vastly different—country and town, Africa and the global north et cetera—but when the researchers did further analysis, they realised that the reason why they had such similar experiences was because they were using the same products. The products were more determining of the outcome than anything to do with religion, education, status, age, the family or even the country. The only other factor that loomed large, which I admit that the Government have recognised, was gender. Those were the two most crucial findings. It is an abdication of adult responsibility to place the onus on children to keep themselves safe. The amendment and the Bill, as I keep mentioning, should focus on the role of design, not on how a child uses it.

My second point, which is of a similar nature, is that I am very concerned that a lot of digital literacy—for adults as well as children, but my particular concern is in schools—is provided by the tech companies themselves. Therefore, once again their responsibility, their role in the system and process of what children might find from reward loops, algorithms and so on, is very low down on the agenda. Is it possible at this late stage to consider that Ofcom might have a responsibility to consider the system design as part of its literacy review?

[Lord Clement-Jones (LD)]

My Lords, this has been a very interesting short debate. Like other noble Lords, I am very pleased that the Government have proposed the new clauses in Amendments 274B and 274C. The noble Baroness, Lady Bull, described absolutely the importance of media literacy, particularly for disabled people and for the vulnerable. This is really important for them. It is important also not to fall into the trap described by the noble Baroness, Lady Kidron, of saying, “You are a child or a vulnerable person. You must acquire media literacy—it’s your obligation; it’s not the obligation of the platforms to design their services appropriately”. I take that point, but it does not mean that media literacy is not extraordinarily important.

However, sadly, I do not believe that the breadth of the Government’s new media literacy amendments is as wide as the original draft Bill. If you look back at the draft Bill, that was a completely new and upgraded set of duties right across the board, replacing Section 11 of the Communications Act and, in a sense, fit for the modern age. The Government have made a media literacy duty which is much narrower. It relates only to regulated services. This is not optimum. We need something broader which puts a bigger and broader duty for the future on to Ofcom.

It is also deficient in two respects. The noble Lord, Lord Knight, will speak to his amendments, but it struck me immediately when looking at that proposed new clause that we were missing all the debate about functionalities and so on that the noble Baroness, Lady Kidron, debated the other day, regarding design, and that we must ensure that media literacy encompasses understanding the underlying functionalities and systems of the platforms that we are talking about.

I know that your Lordships will be very excited to hear that I am going to refer again to the Joint Committee. I know that the Minister has read us from cover to cover, but at paragraph 381 on the draft Bill we said, and it is still evergreen:

“If the Government wishes to improve the UK’s media literacy to reduce online harms, there must be provisions in the Bill to ensure media literacy initiatives are of a high standard. The Bill should empower Ofcom to set minimum standards for media literacy initiatives that both guide providers and ensure the information they are disseminating aligns with the goal of reducing online harm”.


I had a very close look at the clause. I could not see that Ofcom is entitled to set minimum standards. The media literacy provisions sadly are deficient in that respect.

[Lord McNally (LD)]

I am not surprised that my noble friend refers to his experience on the Joint Committee. He will not be surprised that I am about to refer to my experience on the Puttnam committee in 2003, which recommended media literacy as a priority for Ofcom. The sad fact is that media literacy was put on the back burner by Ofcom for almost 20 years. While I listen to this House, I think that my noble friend is quite right to accuse the Government, hard as the Minister has tried, of a paucity of ambition and—more than that—of letting us slip into the same mistake made by Ofcom after 2003 and allowing this to be a narrow, marginal issue. The noble Baroness, Lady Kidron, has reminded us time and again that unless we educate those who are using these technologies, these abuses will proliferate.

Therefore, with what my noble friend is advocating and what we will keep an eye on as the Bill is implemented—and I now literally speak over the Minister’s head, to the Member behind—Ofcom must take media literacy seriously and be a driving force in its implementation, for the very reasons that the noble Baroness, Lady Fox, referred to. We do not want everybody protected by regulations and powers—we want people protected by their own knowledge of what they are dealing with. This is where there is a gap between what has been pressed on the Government and what they are offering.

[Lord Clement-Jones (LD)]

My Lords, I thank my noble friend very much for that intervention.

[Lord Harlech (Con)]

My Lords, I remind the House that, as we are on Report, interventions on current speakers should be for direct questions or points of elucidation.

[Lord Clement-Jones (LD)]

I am sure my noble friend with 30 years’ experience stands duly corrected. He has reminded us that we have 20 years’ experience of something being on the statute book without really cranking up the powers and duties that are on it or giving Ofcom appropriate resources in the media literacy area. If that was about offline—the original 2003 duty—we know that it is even more important online to have these media literacy duties in place. I very much hope that the Minister can give us, in a sense, a token of earnest—that it is not just about putting these duties on the statute book but about giving Ofcom the resources to follow this up. Of course, it is also relevant to other regulators, which was partly the reason for having a duty of co-operation. Perhaps he will also, at the same time, describe how regulators such as Ofsted will have a role in media literacy.

I shall briefly talk about Amendment 269AA to Clause 141, which is the clause in the Bill setting up the advisory committee on misinformation and disinformation. I heard very clearly what the noble Baroness, Lady Fox, had to say, and I absolutely agree—there is no silver bullet in all this. Establishing provenance is but one way in which to get greater transparency and authentication and exercise judgment; it is not the complete answer, but it is one way of getting to grips more with some of the information coming through online. She may have seen that this is an “and” rather than an “or”, which is why the amendment is phrased as it is.

Of course, it is really important that there are initiatives. The one that I want to mention today about provenance is the Content Authenticity Initiative, which I mentioned in Committee. We need to use the power of such initiatives; it is a global coalition working to increase transparency in digital content through open industry standards, and it was founded four years ago and has more than 1,500 members, with some major companies such as Adobe, Microsoft, NVIDIA, Arm, Intel—I could go on. I very much hope that Ofcom will engage with the Content Authenticity Initiative, whatever the content of the Bill. In a sense, I am raising the issue for the Minister to give us assurances that this is within the scope of what the committee will be doing—that it is not just a question of doing what is in the Bill, and this will be included in the scope of the advisory committee’s work.

Thea AI has been an industry-led initiative that has developed content credentials which encode important metadata into pieces of content. Those pieces of information reside indefinitely in the content, wherever it is used, published or stored, and, as a result, viewers are able to make more informed decisions about whether or not to trust the content. The advisory committee really should consider the role of provenance tools such as content credentials to enable users to have the relevant information to decide what is real and what is disinformation or misinformation online. That would entirely fit the strategy of this Bill to empower adult users.

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Having listened to this helpful debate, I remain confident that the provisions we are proposing will tackle the challenges that noble Lords have raised.

[Lord Clement-Jones (LD)]

I do not believe that the Minister has dealt with the minimum standards issue.

[Lord Parkinson of Whitley Bay (Con)]

I do not think that the noble Lord was listening to that point, but I did.

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Moved by

[Lord Clement-Jones]

219: Clause 158, leave out Clause 158
Member’s explanatory statement
This amendment would remove Clause 158 (Directions in special circumstances) from the Bill and is intended to further probe the Secretary of State’s power in this area.

[Lord Clement-Jones (LD)]

My Lords, Clause 158 is one of the more mysterious clauses in the Bill and it would greatly benefit from a clear elucidation by the Minister of how it is intended to work to reduce harm. I thank him for having sent me an email this afternoon as we started on the Bill, for which I am grateful; I had only a short time to consider it but I very much hope that he will put its content on the record.

My amendment is designed to ask how the Minister envisages using the power to direct if, say, there is a new contagious disease or riots, and social media is a major factor in the spread of the problem. I am trying to erect some kind of hypothetical situation through which the Minister can say how the power will be used. Is the intention, for example, to set Ofcom the objective of preventing the spread of information on regulated services injurious to public health or safety on a particular network for six months? The direction then forces the regulator and the social media companies to confront the issue and perhaps publicly shame an individual company into using their tools to slow the spread of disinformation. The direction might give Ofcom powers to gather sufficient information from the company to make directions to the company to tackle the problem.

If that is envisaged, which of Ofcom’s media literacy powers does the Minister envisage being used? Might it be Section 11(1)(e) of the Communications Act 2003, which talks about encouraging

“the development and use of technologies and systems for regulating access to such material, and for facilitating control over what material is received, that are both effective and easy to use”.

By this means, Ofcom might encourage a social media company to regulate access to and control over the material that is a threat.

Perhaps the Minister could set out clearly how he intends all this to work, because on a straight reading of Clause 158, we on these Benches have considerable concerns. The threshold for direction is low—merely having

“reasonable grounds for believing that circumstances exist”—

and there is no sense here of the emergency that the then Minister, Mr Philp, cited in the Commons Public Bill Committee on 26 May 2022, nor even of the exceptional circumstances in Amendment 138 to Clause 39, which the Minister tabled recently. The Minister is not compelled by the clause to consult experts in public health, safety or national security. The Minister can set any objectives for Ofcom, it seems. There is no time limit for the effect of the direction and it seems that the direction can be repeatedly extended with no limit. If the Minister directs because they believe there is a threat to national security, we will have the curious situation of a public process being initiated for reasons the Minister is not obliged to explain.

Against this background, there does not seem to be a case for breaching the international convention of the Government not directing a media regulator. Independence of media regulators is the norm in developed democracies, and the UK has signed many international statements in this vein. As recently as April 2022, the Council of Europe stated:

“Media and communication governance should be independent and impartial to avoid undue influence on policymaking or”


the discriminatory and

“preferential treatment of powerful groups”,

including those with significant political or economic power. The Secretary of State, by contrast, has no powers over Ofcom regarding the content of broadcast regulation and has limited powers to direct over radio spectrum and wireless, but not content. Ofcom’s independence in day-to-day decision-making is paramount to preserving freedom of expression. There are insufficient safeguards in this clause, which is why I argue that it should not stand part of the Bill.

I will be brief about Clause 159 because, by and large, we went through it in our debate on a previous group. Now that we can see the final shape of the Bill, it really does behove us to stand back and see where the balance has settled on Ofcom’s independence and whether this clause needs to stand part of the Bill. The Secretary of State has extensive powers under various other provisions in the Bill. The Minister has tabled welcome amendments to Clause 39, which have been incorporated into the Bill, but Clause 155 still allows the Secretary of State to issue a “statement of strategic priorities”, including specific outcomes, every five years.

Clause 159 is in addition to this comprehensive list, but the approach in the clause is incredibly broad. We have discussed this, and the noble Lord, Lord Moylan, has tabled an amendment that would require parliamentary scrutiny. The Secretary of State can issue guidance to Ofcom on more or less anything encompassed by the exercise of its functions under this Act, with no consultation of the public or Parliament prior to making such guidance. The time limit for producing strategic guidance is three years rather than five. Even if it is merely “have regard” guidance, it represents an unwelcome intervention in Ofcom going about its business. If the Minister responds that the guidance is merely “to have regard”, I will ask him to consider this: why have it all, then, when there are so many other opportunities for the Government to intervene? For the regulated companies, it represents a regulatory hazard of interference in independent regulation and a lack of stability. As the noble Lord, Lord Bethell, said in Committee, a clear benefit of regulatory independence is that it reduces lobbying of the Minister by powerful corporate interests.

Now that we can see it in context, I very much hope that the Minister will agree that Clause 159 is a set of guidance too many that compromises Ofcom’s independence and should not stand part of the Bill.

[Lord Allan of Hallam (LD)]

My Lords, I will add to my noble friend’s call for us to consider whether Clause 158 should be struck from the Bill as an unnecessary power for the Secretary of State to take. We have discussed powers for the Secretary of State throughout the Bill, with some helpful improvements led by the noble Baroness, Lady Stowell. This one jars in particular because it is about media literacy; some of the other powers related to whether the Secretary of State could intervene on the codes of practice that Ofcom would issue. The core question is whether we trust Ofcom’s discretion in delivering media literacy and whether we need the Secretary of State to have any kind of power to intervene.

I single out media literacy because the clue is in the name: literacy is a generic skill that you acquire about dealing with the online world; it is not about any specific text. Literacy is a broader set of skills, yet Clause 158 has a suggestion that, in response to specific forms of content or a specific crisis happening in the world, the Secretary of State would want to takesb this power to direct the media literacy efforts. To take something specific and immediate to direct something that is generic and long-term jars and seems inappropriate.

I have a series of questions for the Minister to elucidate why this power should exist at all. It would be helpful to have an example of what kind of “public statement notice”—to use the language in the clause—the Government might want to issue that Ofcom would not come up with on its own. Part of the argument we have been presented with is that, somehow, the Government might have additional information, but it seems quite a stretch that they could come up with that. In an area such as national security, my experience has been that companies often have a better idea of what is going on than anybody in government.

Thousands of people out there in the industry are familiar with APT 28 and APT 29 which, as I am sure all noble Lords know, are better known by their names Fancy Bear and Cozy Bear. These are agents of the Russian state that put out misinformation. There is nothing that UK agencies or the Secretary of State might know about them that is not already widely known. I remember talking about the famous troll factory run by Prigozhin, the Internet Research Agency, with people in government in the context of Russian interference—they would say “Who?” and have to go off and find out. In dealing with threats such as that between the people in the companies and Ofcom, you certainly want a media literacy campaign which tells you about these troll agencies and how they operate and gives warnings to the public, but I struggle to see why you need the Secretary of State to intervene as opposed to allowing Ofcom’s experts to work with company experts and come up with a strategy to deal with those kinds of threat.

The other example cited of an area where the Secretary of State might want to intervene is public health and safety. It would be helpful to be specific; had they had it, how would the Government have used this power during the pandemic in 2020 and 2021? Does the Minister have examples of what they were frustrated about and would have done with these powers that Ofcom would not do anyway in working with the companies directly? I do not see that they would have had secret information which would have meant that they had to intervene rather than trusting Ofcom and the companies to do it.

Perhaps there has been an interdepartmental workshop between DHSC, DCMS and others to cook up this provision. I assume that Clause 158 did not come from nowhere. Someone must have thought, “We need these powers in Clause 158 because we were missing them previously”. Are there specific examples of media literacy campaigns that could not be run, where people in government were frustrated and therefore wanted a power to offer it in future? It would be really helpful to hear about them so that we can understand exactly how the Clause 158 powers will be used before we allow this additional power on to the statute book.

In the view of most people in this Chamber, the Bill as a whole quite rightly grants the Government and Ofcom, the independent regulator, a wide range of powers. Here we are looking specifically at where the Government will, in a sense, overrule the independent regulator by giving it orders to do something it had not thought of doing itself. It is incumbent on the Government to flesh that out with some concrete examples so that we can understand why they need this power. At the moment, as noble Lords may be able to tell, these Benches are not convinced that they do.

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[Lord Parkinson of Whitley Bay (Con)]

I am happy to make it clear, as I did on the last group, that the power allows Ofcom not to require platforms to remove content, only to set out what they are doing in response to misinformation and disinformation—to require platforms to make a public statement about what they are doing to tackle it. In relation to regulating news providers, we have brought the further amendments forward to ensure that those subject to sanctions cannot avail themselves of the special provisions in the Bill. Of course, the Secretary of State will be mindful of the law when issuing directions in the exceptional circumstances that these clauses set out.

[Lord Clement-Jones (LD)]

While the Minister is describing that, can he explain exactly which media literacy power would be invoked by the kind of example I gave when I was introducing the amendment and in the circumstances he has talked about? Would he like to refer to the Communications Act?

[Lord Parkinson of Whitley Bay (Con)]

It depends on the circumstances. I do not want to give one example for fear of being unnecessarily restrictive. In relation to the health misinformation and disinformation we saw during the pandemic, an example would be the suggestions of injecting oneself with bleach; that sort of unregulated and unhelpful advice is what we have in mind. I will write to the noble Lord, if he wants, to see what provisions of the Communications Act we would want invoked in those circumstances.

In relation to Clause 159, which is dealt with by Amendment 222, it is worth setting out that the Secretary of State guidance and the statement of strategic priorities have distinct purposes and associated requirements. The purpose of the statement of strategic priorities is to enable the Secretary of State to specifically set out priorities in relation to online safety. For example, in the future, it may be that changes in the online experience mean that the Government of the day wish to set out their high-level overarching priorities. In comparison, the guidance allows for clarification of what Parliament and Government intended in passing this legislation—as I hope we will—by providing guidance on specific elements of the Bill in relation to Ofcom’s functions. There are no plans to issue guidance under this power but, for example, we are required to issue guidance to Ofcom in relation to the fee regime.

On the respective requirements, the statement of strategic priorities requires Ofcom to explain in writing what it proposes to do in consequence of the statement and publish an annual review of what it has done. Whereas Ofcom must “have regard” to the guidance, the guidance itself does not create any statutory requirements.

This is a new regime and is different in its nature from other established areas of regulations, such as broadcasting. The power in Clause 159 provides a mechanism to provide more certainty, if that is considered necessary, about how the Secretary of State expects Ofcom to carry out its statutory functions. Ofcom will be consulted before guidance is issued, and there are checks on how often it can be issued and revised. The guidance document itself, as I said, does not create any statutory requirements, so Ofcom is required only to “have regard” to it.

This will be an open and transparent way to put forward guidance appropriately with safeguards in place. The independence of the regulator is not at stake here. The clause includes significant limitations on the power, and the guidance cannot fetter Ofcom’s operational independence. We feel that both clauses are appropriate for inclusion in the Bill, so I hope that the noble Lord will withdraw his amendment.

[Lord Clement-Jones (LD)]

I thank the Minister for that more extended reply. It is a more reassuring response on Clause 159 than we have had before. On Clause 158, the impression I get is that the media literacy power is being used as a smokescreen for the Government telling social media what it should do, indirectly via Ofcom. That seems extraordinary. If the Government were telling the mainstream media what to do in circumstances like this, we would all be up in arms. However, it seems to be accepted as a part of the Bill and that we should trust the Government. The Minister used the phrase “special circumstances”. That is not the phraseology in the clause; it is that “circumstances exist”, and then it goes on to talk about national security and public health. The bar is very low.

I am sure everyone is getting hungry at this time of day, so I will not continue. However, we still have grave doubts about this clause. It seems an extraordinary indirect form of censorship which I hope is never invoked. In the meantime, I beg leave to withdraw my amendment.

Amendment 219 withdrawn.

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[Lord Allan of Hallam (LD)]

My Lords, the noble Lord, Lord Moylan, and the noble Baroness, Lady Fox, have a very strong point to make with this amendment. I have tried in our discussions to bring some colour to the debate from my own experience so I will tell your Lordships that in my former professional life I received representations from many Ministers in many countries about the content we should allow or disallow on the Facebook platform that I worked for.

That was a frequent occurrence in the United Kingdom and extended to Governments of all parties. Almost as soon as I moved into the job, we had a Labour Home Secretary come in and suggest that we should deal with particular forms of content. It happened through the coalition years. Indeed, I remember meeting the Minister’s former boss at No. 10 in Davos, of all places, to receive some lobbying about what the UK Government thought should be on or off the platform at that time. In that case it was to do with terrorist content; there was nothing between us in terms of wanting to see that content gone. I recognise that this amendment is about misinformation and disinformation, which is perhaps a more contentious area.

As we have discussed throughout the debate, transparency is good. It keeps everybody on the straight and narrow. I do not see any reason why the Government should not be forthcoming. My experience was that the Government would often want to go to the Daily Telegraph, the Daily Mail or some other upright publication and tell it how they had been leaning on the internet companies—it was part of their communications strategy and they were extremely proud of it—but there will be other circumstances where they are doing it more behind the scenes. Those are the ones we should be worried about.

If those in government have good reason to lean on an internet company, fine—but knowing that they have to be transparent about it, as in this amendment, will instil a certain level of discipline that would be quite healthy.

[Lord Clement-Jones (LD)]

My Lords, clearly, there is a limited number of speakers in this debate. We should thank the noble Lord, Lord Moylan, for tabling this amendment because it raises a very interesting point about the transparency—or not—of the Counter Disinformation Unit. Of course, it is subject to an Oral Question tomorrow as well, which I am sure the noble Viscount will be answering.

There is some concern about the transparency of the activities of the Counter Disinformation Unit. In its report, Ministry of Truth, which deals at some length with the activities of the Counter Disinformation Unit, Big Brother Watch says:

“Giving officials an unaccountable hotline to flag lawful speech for removal from the digital public square is a worrying threat to free speech”.


Its complaint is not only about oversight; it is about the activities. Others such as Full Fact have stressed the fact that there is little or no parliamentary scrutiny. For instance, freedom of information requests have been turned down and Written Questions which try to probe what the activities of the Counter Disinformation Unit are have had very little response. As it says, when the Government

“lobby internet companies about content on their platforms … this is a threat to freedom of expression”.

We need proper oversight, so I am interested to hear the Minister’s response.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the Government share the view of my noble friend Lord Moylan about the importance of transparency in protecting freedom of expression. I reassure him and other noble Lords that these principles are central to the Government’s operational response to addressing harmful disinformation and attempts artificially to manipulate our information environment.

My noble friend and others made reference to the operational work of the Counter Disinformation Unit, which is not, as the noble Baroness, Lady Fox, said, the responsibility of my department but of the Department for Science, Innovation and Technology. The Government have always been transparent about the work of the unit; for example, recently publishing a factsheet on GOV.UK which sets out, among other things, how the unit works with social media companies.

I reassure my noble friend that there are existing processes governing government engagements with external parties and emphasise to him that the regulatory framework that will be introduced by the Bill serves to increase transparency and accountability in a way that I hope reassures him. Many teams across government regularly meet industry representatives on a variety of issues from farming and food to telecoms and digital infrastructure. These meetings are conducted within well-established transparency processes and frameworks, which apply in exactly the same way to government meetings with social media companies. The Government have been open about the fact that the Counter Disinformation Unit meets social media companies. Indeed, it would be surprising if it did not. For example, at the beginning of the Russian invasion of Ukraine, the Government worked with social media companies in relation to narratives which were being circulated attempting to deny incidents leading to mass casualties, and to encourage the promotion of authoritative sources of information. That work constituted routine meetings and was necessary in confirming the Government’s confidence in the preparedness and ability of platforms to respond to new misinformation and disinformation threats.

To require additional reporting on a sector-by-sector or department-by-department basis beyond the standardised transparency processes, as proposed in my noble friend’s amendment, would be a disproportionate and unnecessary response to what is routine engagement in an area where the Government have no greater powers or influence than in others. They cannot compel companies to alter their terms of service; nor can or do they seek to mandate any action on specific pieces of content.

I reassure the noble Baroness, Lady Fox, that the Counter Disinformation Unit does not monitor individual people, nor has it ever done so; rather, it tracks narratives and trends using publicly available information online to protect public health, public safety and national security. It has never tracked the activity of individuals, and there is a blanket ban on referring any content from journalists or parliamentarians to social media performs. The Government have always been clear that the Counter Disinformation Unit refers content for consideration only where an assessment has been made that it is likely to breach the platform’s own terms of service. It has no role in deciding what action, if any, to take in response, which is entirely a matter for the platform concerned.

As I said, the Bill will introduce new transparency, accountability and freedom of expression duties for category 1 services which will make the process for any removal or restriction of user-generated content more transparent by requiring category 1 services to set terms of service which are clear, easy for users to understand and consistently enforced. Category 1 services will be prohibited from removing or restricting user-generated content or suspending or banning users where this does not align with those terms of service. Any referrals from government will not, and indeed cannot, supersede these duties in the Bill.

Although I know it will disappoint my noble friend that another of his amendments has not been accepted, I hope I have been able to reassure him about the Government’s role in these processes. As the noble Lord, Lord Clement-Jones, noted, my noble friend Lord Camrose is answering a Question on this in your Lordships’ House tomorrow, further underlining the openness and parliamentary accountability with which we go about this work. I hope my noble friend will, in a similarly post-prandial mood of generosity, suppress his disappointment and feel able to withdraw his amendment.

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[Baroness Kidron (CB)]

My Lords, I support Amendment 228. I spoke on this issue to the longer amendment in Committee. To decide whether something is illegal without the entire apparatus of the justice system, in which a great deal of care is taken to decide whether something is illegal, at high volume and high speed, is very worrying. It strikes me as amusing because someone commented earlier that they like a “must” instead of a “maybe”. In this case, I caution that a provider should treat the content as content of the kind in question accordingly, that something a little softer is needed, not a cliff edge that ends up in horrors around illegality where someone who has acted in self-defence is accused of a crime of violence, as happens to many women, and so on and so forth. I do not want to labour the point. I just urge a gentle landing rather than, as it is written, a cliff edge.

[Lord Clement-Jones (LD)]

My Lords, this has been a very interesting debate. Beyond peradventure my noble friend Lord Allan and the noble Viscount, Lord Colville, and the noble Baroness, Lady Fox, have demonstrated powerfully the perils of this clause. “Lawyers’ caution” is one of my noble friend’s messages to take away, as is the complexities in making these judgments. It was interesting when he mentioned the sharing for awareness’s sake of certain forms of content and the judgments that must be taken by platforms. His phrase “If in doubt, take it out” is pretty chilling in free speech terms—I think that will come back to haunt us. As the noble Baroness, Lady Fox, said, the wrong message is being delivered by this clause. It is important to have some element of discretion here and not, as the noble Baroness, Lady Kidron, said, a cliff edge. We need a gentler landing. I very much hope that the Minister will land more gently.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a good debate. It is very hard to see where one would want to take it. If it proves anything, it is that the decision to drop the legal but harmful provisions in the Bill was probably taken for the wrong reasons but was the right decision, since this is where we end up—in an impossible moral quandary which no amount of writing, legalistic or otherwise, will get us out of. This should be a systems Bill, not a content Bill.

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[Lord Allan of Hallam (LD)]

My Lords, I will make a brief contribution because I was the misery guts when this was proposed first time round. I congratulate the noble Baroness, Lady Harding, not just on working with colleagues to come up with a really good solution but on seeking me out. If I heard someone be as miserable as I was, I might try to avoid them. She did not; she came and asked me, “Why are you miserable? What is the problem here?”, and took steps to address it. Through her work with the Government, their amendments address my main concerns.

My first concern, as we discussed in Committee, was that we would be asking large companies to regulate their competitors, because the app stores are run by large tech companies. She certainly understood that concern. The second was that I felt we had not necessarily yet clearly defined the problem. There are lots of problems. Before you can come up with a solution, you need a real consensus on what problem you are trying to address. The government amendment will very much help in saying, “Let’s get really crunchy about the actual problem that we need app stores to address”.

Finally, I am a glass-half-full kind of guy as well as a misery guts—there is a contradiction there—and so I genuinely think that these large tech businesses will start to change their behaviour and address some of the concerns, such as getting age ratings correct, just by virtue of our having this regulatory framework in place. Even if today the app stores are technically outside, the fact that the sector is inside and that this amendment tells them that they are on notice will, I think and hope, have a hugely positive effect and we will get the benefits much more quickly than the timescale envisaged in the Bill. That feels like a true backstop. I sincerely hope that the people in those companies, who I am sure will be glued to our debate, will be thinking that they need to get their act together much more quickly. It is better for them to do it themselves than wait for someone to do it to them.

[Lord Clement-Jones (LD)]

My Lords, I add my congratulations to the noble Baroness, Lady Harding, on her tenacity, and to the Minister on his flexibility. I believe that where we have reached is pretty much the right balance. There are the questions that the noble Baroness, Lady Harding, and others have asked of the Minister, and I hope he will answer those, but this is a game-changer, quite frankly. Rightly, the noble Baroness has paid tribute to the companies which have put their head above the parapet. That was not that easy for them to do when you consider that those are the platforms they have to depend on for their services to reach the public.

Unlike the research report, they have reserved powers that the Secretary of State can use if the report is positive, which I hope it will be. I believe this could be a turning point. The digital markets and consumers Bill is coming down the track this autumn and that is going to give greater powers to make sure that the app stores can be tackled—after all, there are only two of them and they are an oligopoly. They are the essence of big tech, and they need to function in a much more competitive way.

The noble Baroness talked about timing, and it needs to be digital timing, not analogue. Four years does seem a heck of a long time. I hope the Minister will address that.

Then there is the really important aspect of harmful content. In the last group, the Minister reassured us about systems and processes and the illegality threshold. Throughout, he has tried to reassure us that this is all about systems and processes and not so much about content. However, every time we look, we see that content is there almost by default, unless the subject is raised. We do not yet have a Bill that is actually fit for purpose in that sense. I hope the Minister will use his summer break wisely and read through the Bill to make sure that it meets its purpose, and then come back at Third Reading with a whole bunch of amendments that add functionalities. How about that for a suggestion? It is said in the spirit of good will and summer friendship.

The noble Baroness raised a point about transparency when it comes to Ofcom publishing its review. I hope the Minister can give that assurance as well.

The noble Baroness, Lady Kidron, asked about the definition of app store. That is the gatekeeper function, and we need to be sure that that is what we are talking about.

I end by congratulating once again the noble Baroness and the Minister on where we have got to so far.

[Lord Knight of Weymouth (Lab)]

My Lords, I will start with the final point of the noble Lord, Lord Clement-Jones. I remind him that, beyond the world of the smartphone, there is a small company called Microsoft that also has a store for software—it is not just Google and Apple.

Principally, I say well done to the noble Baroness, Lady Harding, in deploying all of her “winsome” qualities to corral those of us who have been behind her on this and then persuade the Minister of the merits of her arguments. She also managed to persuade the noble Lord, Lord Allan of Misery Guts, that this was a good idea. The sequence of research, report, regulation and regulate is a good one, and as the noble Lord, Lord Clement-Jones, reminded us it is being deployed elsewhere in the Bill. I agree with the noble Baroness about the timing: I much prefer two years to four years. I hope that at least Ofcom would have the power to accelerate this if it wanted to do so.

I was reminded of the importance of this in an article I read in the Guardian last week, headed:

“More than 850 people referred to clinic for video game addicts”.


This was in reference to the NHS-funded clinic, the National Centre for Gaming Disorders. A third of gamers receiving treatment there were spending money on loot boxes in games such as “Fortnite”, “FIFA”, “Minecraft”, “Call of Duty” and “Roblox”—all games routinely accessed by children. Over a quarter of those being treated by the centre were children.

Online Safety Bill

Lord Clement-Jones Excerpts

Report stage
Wednesday 19th July 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, I promise I will be brief. I, too, welcome what the Minister has said and the amendments that the Government have proposed. This is the full package which we have been seeking in a number of areas, so I am very pleased to see it. My noble friend Lady Newlove and the noble Baroness, Lady Kidron, are not in their places, but I know I speak for both of them in wanting to register that, although the thoughtful and slow-and-steady approach has some benefits, there also some real costs to it. The UK Safer Internet Centre estimates that there will be some 340,000 individuals in the UK who will have no recourse for action if the platforms complaints mechanism does not work for them in the next two years. That is quite a large number of people, so I have one very simple question for the Minister: if I have exhausted the complaints procedure with an existing platform in the next two years, where do I go? I cannot go to Ofcom. My noble friend Lord Grade was very clear in front of the committee I sit on that it is not Ofcom’s job. Where do I go if I have a complaint that I cannot get resolved in the next two years?

[Lord Clement-Jones (LD)]

My Lords, I declare an interest as chair of Trust Alliance Group, which operates the energy and communications ombudsman schemes, so I have a particular interest in the operation of these ADR schemes. I thank the Minister for the flexibility that he has shown in the provision about the report by Ofcom and in having backstop powers for the Secretary of State to introduce such a scheme.

Of course, I understand that the noble Baroness, Lady Newlove, and the UK Safer Internet Centre are very disappointed that this is not going to come into effect immediately, but there are advantages in not setting out the scheme at this very early point before we know what some of the issues arising are. I believe that Ofcom will definitely want to institute such a scheme, but it may be that, in the initial stages, working out the exact architecture is going to be necessary. Of course, I would have preferred to have a mandated scheme, in the sense that the report will look not at the “whether” but the “how”, but I believe that at the end of the day it will absolutely obvious that there needs to be such an ADR scheme in order to provide the kind of redress the noble Baroness, Lady Harding, was talking about.

I also agree with noble Baroness, Lady Morgan, that the kinds of complaints that this would cover should include fraudulent adverts. I very much hope that the Minister will be able to answer the questions that both noble Baronesses asked. As my noble friend said, will he reassure us that the department and Ofcom will not take their foot off the pedal, whatever the Bill may say?

[Lord Parkinson of Whitley Bay (Con)]

I am grateful to noble Lords for their warm support and for heeding the advice of the noble Lord, Lord Stevenson, on brevity. We must finish our Report today. The noble Lord, Lord Allan, is right to mention my noble friend Lady Newlove, who I have spoken to about this issue, as well as the noble Lord, Lord Russell of Liverpool, who has raised some questions here.

Alongside the strong duties on services to offer content reporting and complaints procedures, our amendments will ensure that the effectiveness of these provisions can be reviewed after they have had sufficient time to bed in. The noble Lord, Lord Allan, asked about timing in more detail. Ofcom must publish the report within the two-year period beginning on the day on which the provision comes into force. That will allow time for the regime to bed in before the report takes place, ensuring that its conclusions are informed by how the procedures work in practice. If necessary, our amendments will allow the Secretary of State to impose via regulations a duty on the providers of category 1 services to arrange for and engage in an impartial, out-of-court alternative dispute resolution procedure, providing the further strengthening which I outlined in opening.

I can reassure my noble friend Lady Morgan of Cotes that reporting mechanisms to facilitate providers’ removal of fraudulent advertisements are exactly the kinds of issues that Ofcom’s codes of practice will cover, subject to consultation and due process. As companies have duties to remove fraudulent advertising once they are alerted to it, we expect platforms will need the necessary systems and processes in place to enable users to report fraudulent adverts so that providers can remove them.

My noble friend Lady Harding asked the question which was posed a lot in Committee about where one goes if all avenues are exhausted. We have added further avenues for people to seek redress if they do not get it but, as I said in Committee, the changes that we are bringing in through this Bill will mark a significant change for people. Rather than focusing on the even-further-diminished possibility of their not having their complaints adequately addressed through the additional amendments we are bringing today, I hope she will see that the provisions in the Bill and in these amendments as bringing in the change we all want to see to improve users’ safety online.

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[Lord Allan of Hallam (LD)]

My Lords, I am pleased to follow the noble Baroness, Lady Morgan of Coates, and her amendment, which tries to help parliamentary counsel draft better regulations later on. I am really struggling to see why the Government want to resist something that will make their life easier if they are going to do what we want them to do, which is to catch those high-risk services—as the noble Baroness, Lady Finlay, set out—but also, as we have discussed in Committee and on Report, exclude the low-risk services that have been named, such as Wikipedia and OpenStreetMap.

I asked the Minister on Report how that might happen, and he confirmed that such services are not automatically exempt from the user-to-user services regulations, but he also confirmed that they might be under the subsequent regulations drafted under Schedule 11. That is precisely why we are coming back to this today; we want to make sure that they can be exempt under the regulations drafted under Schedule 11. The test should be: would that be easier under the amended version proposed by the noble Baroness, Lady Morgan, or under the original version? I think it would be easier under the amended version. If the political intent is there to exclude the kind of services that I have talked about—the low-risk services—and I think it should be, because Ofcom should not be wasting time, in effect, supervising services that do not present a risk and, not just that, creating a supervisory model that may end up driving those services out of the UK market because they cannot legally say that they will make the kind of commitments Ofcom would expect them to make, having two different thresholds, size and functionality, gives the draftspeople the widest possible choice. By saying “or”, we are not saying they cannot set a condition that is “and” or excludes “and”, but “and” does exclude “or”, if I can put it that way. They can come back with a schedule that says, “You must be of this size and have this kind of functionality”, or they could say “this functionality on its own”—to the point made by the two noble Baronesses about some sites. They might say, “Look, there is functionality which is always so high-risk that we do not care what size you are; if you’ve got this functionality, you’re always going to be in”. Again, the rules as drafted at the moment would not allow them to do that; they would have to say, “You need to have this functionality and be of this size. Oh, whoops, by saying that you have to be of this size, we’ve now accidentally caught somebody else who we did not intend to catch”.

I look forward to the Minister’s response, but it seems entirely sensible that we have the widest possible choice. When we come to consider this categorisation under Schedule 11 later on, the draftspeople should be able to say either “You must be this size and have this functionality” or “If you’ve got this functionality, you’re always in” or “If you’re of this size, you’re always in”, and have the widest possible menu of choices. That will achieve the twin objectives which I think everyone who has taken part in the debate wants: the inclusion of high-risk services, no matter their size, and the exclusion of low-risk services, no matter their size—if they are genuinely low risk. That is particularly in respect of the services we have discussed and which the noble Lord, Lord Moylan, has been a very strong advocate for. In trying to do good, we should not end up inadvertently shutting down important information services that people in this country rely on. Frankly, people would not understand it if we said, “In the name of online safety, we’ve now made it so that you cannot access an online encyclopaedia or a map”.

It is going to be much harder for the draftspeople to draft categorisation under Schedule 11, as it is currently worded, that has the effect of being able to exclude low-risk services. The risk of their inadvertently including them and causing that problem is that much higher. The noble Baroness is giving us a way out and I hope the Minister will stand up and grab the lifeline. I suspect he will not.

[Lord Clement-Jones (LD)]

My Lords, I welcome the Minister’s Amendment 238A, which I think was in response to the DPRRC report. The sentiment around the House is absolutely clear about the noble Baroness’s Amendment 245. Indeed, she made the case conclusively for the risk basis of categorisation. She highlighted Zoe’s experience and I struggle to understand why the Secretary of State is resisting the argument. She knocked down the nine pins of legal uncertainty, and how it was broader than children and illegal by reference to Clause 12. The noble Baroness, Lady Finlay, added to the knocking down of those nine pins.

Smaller social media platforms will, on the current basis of the Bill, fall outside category 1. The Royal College of Psychiatrists made it pretty clear that the smaller platforms might be less well moderated and more permissive of dangerous content. It is particularly concerned about the sharing of information about methods of suicide or dangerous eating disorder content. Those are very good examples that it has put forward.

I return to the scrutiny committee again. It said that

“a more nuanced approach, based not just on size and high-level functionality, but factors such as risk, reach, user base, safety performance, and business model”

should be adopted. It seems that many small, high-harm services will be excluded unless we go forward on the basis set out by the noble Baroness, Lady Morgan. The kind of breadcrumbing we have talked about during the passage of the Bill and, on the other hand, sites such as Wikipedia, as mentioned by noble friend, will be swept into the net despite being low risk.

I have read the letter from the Secretary of State which the noble Baroness, Lady Morgan, kindly circulated. I cannot see any argument in it why Amendment 245 should not proceed. If the noble Baroness decides to test the opinion of the House, on these Benches we will support her.

[Lord Knight of Weymouth (Lab)]

My Lords, I have good news and bad news for the Minister. The good news is that we have no problem with his amendments. The bad news, for him, is that we strongly support Amendment 245 from the noble Baroness, Lady Morgan of Coates, which, as others have said, we think is a no-brainer.

The beauty of the simple amendment has been demonstrated; it just changes the single word “and” to “or”. It is of course right to give Ofcom leeway—or flexibility, as the noble Baroness, Lady Finlay, described it—in the categorisation and to bring providers into the safety regime. What the noble Baroness, Lady Morgan, said about the smaller platforms, the breadcrumbing relating to the Jake Davison case and the functionality around bombarding Zoe Lyalle with those emails told the story that we needed to hear.

As it stands, the Bill requires Ofcom to always be mindful of size. We need to be more nuanced. From listening to the noble Lord, Lord Allan of Hallam—with his, as ever, more detailed analysis of how things work in practice—my concern is that in the end, if it is all about size, Ofcom will end up having to have a much larger number in scope on the categorisation of size in order to cover all the platforms that it is worried about. If we could give flexibility around size or functionality, that would make the job considerably easier.

We on this side think categorisation should happen with a proportionate, risk-based approach. We think the flexibility should be there, the Minister is reasonable—come on, what’s not to like?

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[Lord Stevenson of Balmacara (Lab)]

My Lords, this amendment would require the Secretary of State, when seeking to exercise certain powers in the Bill, to provide the relevant Select Committees of both Houses with draft regulations and impact assessments, among other things. I should admit up front that this is a blatant attempt to secure an Online Safety Bill version of what I have called the “Grimstone rule”, established in the international trade Bill a few years ago. Saving his blushes, if the ideas enshrined in the amendment are acceptable to the Government, I hope that the earlier precedent of the “Grimstone rule” would ensure that any arrangements agreed under this amendment would be known in future as the “Parkinson rule”. Flattery will get you many things.

The Bill places a specific consultation requirement on the Government for the fee regime, which we were just talking about, categorisation thresholds, regulations about reports to the NCA, statements of strategic priorities, regulations for super-complaints, and a review of the Act after three years—so a wide range of issues need to be put out for consultation. My context here, which is all-important, is a growing feeling that Parliament’s resources are not being deployed to the full in scrutinising and reviewing the work of the Executive on the one hand and feeding knowledge and experience into future policy on the other. There is continuing concern about the effectiveness of the secondary legislation approval procedures, which this amendment would bear on.

Noble Lords have only to read the reports of the Select Committees of both Houses to realise what a fantastic resource they represent. One has only to have served on a Select Committee to realise what potential also exists there. In an area of rapid technical and policy development, such as the digital world, the need to be more aware of future trends and potential problems is absolutely crucial.

The pre-legislative scrutiny committee report is often quoted here, and it drew attention to this issue as well, recommending

“a Joint Committee of both Houses to oversee digital regulation with five primary functions: scrutinising digital regulators and overseeing the regulatory landscape … scrutinising the Secretary of State’s work into digital regulation; reviewing the codes of practice laid by Ofcom under any legislation relevant to digital regulation … considering any relevant new developments such as the creation of new technologies and the publication of independent research … and helping to generate solutions to ongoing issues in digital regulation”—

a pretty full quiver of issues to be looked at.

I hope that when he responds to this debate, the Minister will agree that ongoing parliamentary scrutiny would be helpful in providing reassurances that the implementation of the regime under the Bill is going as intended, and that the Government would also welcome a system under which Parliament, perhaps through the Select Committees, can contribute to the ways suggested by the Joint Committee. I say “perhaps”, because I accept that it is not appropriate for primary legislation to dictate how, or in what form, Parliament might offer advice in the manner that I have suggested; hence the suggestion embedded in the amendment—which I will not be pressing to a Division—which I call the “Parkinson rule”. Under this, the Minister would agree at the Dispatch Box a series of commitments which will provide an opportunity for enhanced cross-party scrutiny of the online safety regime and an opportunity to survey and report on future developments of interest.

The establishment of the new Department for Science, Innovation and Technology and its Select Committee means that there is a new dedicated Select Committee in the Commons. The Lords Communications and Digital Committee will continue, I hope, to play a vital role in the scrutiny of the digital world, as it has with the online safety regime to date. While it would be for the respective committees to decide their priorities, I hope the Government would encourage the committees in both Houses to respond to their required consultation processes and to look closely at the draft codes of practice, the uses of regulation-making powers and the powers of direction contained in the Bill ahead of the formal processes in both Houses. Of course, it could be a specialist committee if that is what the Houses decide, but there is an existing arrangement under which this “Parkinson rule” could be embedded. I have discussed the amendment with the Minister and with the Bill team. I look forward to hearing their response to the ideas behind the amendment. I beg to move the “Parkinson rule”.

[Lord Clement-Jones (LD)]

I support the amendment of the noble Lord, Lord Stevenson. Here is an opportunity for the Minister to build a legislative monument. I hope he will take it. The reason I associate myself with it is because the noble Lord, Lord Stevenson—who has been sparing in his quoting of the Joint Committee’s report, compared with mine—referred to it and it all made very good sense.

The amendment stumbles only in the opinion of the Government, it seems, on the basis that parliamentary committees need to be decided on by Parliament, rather than the Executive. But this is a very fine distinction, in my view, given that the Government, in a sense, control the legislature and therefore could will the means to do this, even if it was not by legislation. A nod from the Minister would ensure that this would indeed take place. It is very much needed. It was the Communications and Digital Committee, I think, that introduced the idea that we picked up in the Joint Committee, so it has a very good provenance.

[Lord Hope of Craighead (CB)]

My Lords, I offer my support to the amendment. I spent some time arguing in the retained EU law Bill for increased parliamentary scrutiny. My various amendments did not succeed but at the end of the day—on the final day of ping-pong—the Minister, the noble Lord, Lord Callanan, gave certain assurances based on what is in Schedule 5 to that Act, as it now is, involving scrutiny through committees. So the basic scheme which my noble kinsman has proposed is one which has a certain amount of precedent—although it is not an exact precedent; what might have been the “Callanan rule” is still open to reconstruction as the “Parkinson rule”. I support the amendment in principle.

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[Baroness Stowell of Beeston (Con)]

My Lords, I added my name to some amendments on this issue in Committee. I have not done so on Report, not least because I have been so occupied with other things and have not had the time to focus on this. However, I remain concerned about this part of the Bill. I am sympathetic to my noble friend Lord Moylan’s Amendment 255, but listening to this debate and studying all the amendments in this group, I am a little confused and so have some simple questions.

First, I heard my noble friend the Minister say that the Government have no intention to require the platforms to carry out general monitoring, but is that now specific in any of the amendments that he has tabled? Regarding the amendments which would bring further safeguards around the oversight of Ofcom’s use of this power, like my noble friend Lady Harding, I have always been concerned that the oversight approach should be in line with that for the Investigatory Powers Act and could never understand why it was not in the original version of the Bill. Like her, I am pleased that the Government have tabled some amendments, but I am not yet convinced that they go far enough.

That leads me to the amendments that have been tabled by the noble Lords, Lord Stevenson and Lord Clement-Jones, and particularly that in the name of the noble Lord, Lord Allan of Hallam. As his noble friend Lord Clement-Jones has added his name to it, perhaps he could answer my question when he gets up. Would the safeguards that are outlined there—the introduction of the Information Commissioner—meet the concerns of the big tech companies? Do we know whether it would meet their needs and therefore lead them not to feel it necessary to withdraw their services from the UK? I am keen to understand that.

There is another thing that might be of benefit for anyone listening to this debate who is not steeped in the detail of this Bill, and I look to any of those winding up to answer it—including my noble friend the Minister. Is this an end to end-to-end encryption? Is that what is happening in this Bill? Or is this about ensuring that what is already permissible in terms of the authorities being able to use their powers to go after suspected criminals is somehow codified in this Bill to make sure it has proper safeguards around it? That is still not clear. It would be very helpful to get that clarity from my noble friend, or others.

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Stowell. My noble friend has spoken very cogently to Amendment 258ZA, and I say in answer to the question posed by the noble Baroness that I do not think this is designed to make big tech companies content. What it is designed to do is bring this out into the open and make it contestable; to see whether or not privacy is being invaded in these circumstances. To that extent it airs the issues and goes quite a long way towards allaying the concerns of those 80 organisations that we have heard from.

I am not going to repeat all the arguments of my noble friend, but many noble Lords, not least on the opposite Benches, have taken us through some of the potential security and privacy concerns which were also raised by my noble friends, and other reasons for us on these Benches putting forward these amendments. We recognise those concerns and indeed we recognise concerns on both sides. We have all received briefs from the NSPCC and the IWF, but I do not believe that essentially what is being proposed here in our amendments, or indeed by the amendments put forward by the noble Lord, Lord Stevenson, are designed in any way to prevent Ofcom doing its duty in relation to child sexual abuse and exploitation material in private messaging. We believe that review by the ICO to ensure that there is no invasion of privacy is a very useful mechanism.

We have all tried to find solutions and the Minister has put forward his stab at this with the skilled persons report. The trouble is, that does not go far enough, as the noble Baroness, Lady Stowell, said. Effectively, Ofcom can choose the skilled person and what the skilled person is asked to advise on. It is not necessarily comprehensive and that is essentially the major flaw.

As regards the amendments put forward by the noble Lord, Lord Stevenson, it is interesting that the Equality and Human Rights Commission itself said:

“We are concerned by the extent and seriousness of CSEA content being shared online. But these proposed measures may be a disproportionate infringement on millions of individuals’ right to privacy where those individuals are not suspected of any wrongdoing”.


It goes on to say:

“We recommend that Ofcom should be required to apply to an independent judicial commissioner—as is the case for mass surveillance under the Investigatory Powers Act”.


I am sure that is the reason why the noble Lord, Lord Stevenson, put forward his amendments; if he put them to a vote, we would follow and support. Otherwise, we will put our own amendments to the House.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been—since we first got sight of the Bill and right the way through—one of the most difficult issues to try to find balance and a solution. I know that people have ridiculed my attempt to try and get people to speak less in earlier amendments. Actually, in part it was so we could have a longer debate here—so the noble Lord, Lord Moylan, should not be so cross with me, and I hope that we can continue to be friends, as we are outside the Chamber, on all points, not just this one.

Talk is not getting us to a solution on this, unfortunately. I say to the Minister: I wonder whether there is a case here for pausing a little bit longer on this, because I still do not think we have got to the bottom of where the balance lies. I want to explain why I say that, because, in a way, I follow the noble Baroness, Lady Stowell, in worrying that there are some deeper questions here that we have not quite got the answers to. Nothing in the current amendments gets us to quite the right place.

I started by thinking that, if only because Ofcom was being seen to be placed in a position of both being a part of the regulatory process, but also having the rights to interpose itself into where this issue about encryption came up, Ofcom needed the safety of an external judicial review along the lines of the current RIPA system. That has led us to my Amendments 256, 257 and 259, which try to distil that sensibility into a workable frame for the Bill and these issues. I will not push it to a vote. It is there because I wanted to have in the discussion a proper look at what the RIPA proposal would look like in practice.

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[Lord Clement-Jones (LD)]

My Lords, I think the upshot of this brief debate is that the noble Lord, Lord Knight —how he was tracked down in a Pret A Manger, I have no idea; he is normally too fast-moving for that—in his usual constructive and creative way is asking the Government to constructively engage to find a solution, which he discussed in that Pret A Manger, involving a national helpline, the NSPCC and the Children’s Commissioner, for the very reasons that he and my noble friend Lord Allan have put forward. In no way would this be some of kind of quango, in the words of the noble Baroness, Lady Fox.

This is really important stuff. It could be quite a game-changer in the way that the NSPCC and the Children’s Commissioner collaborate on tackling the issues around social media, the impact of the new rights under the Bill and so on. I very much hope that the Government will be able to engage positively on this and help to bring the parties together to, in a sense, deliver something which is not in the Bill but could be of huge importance.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, first, I reassure noble Lords that the Government are fully committed to making sure that the interests of children are both represented and protected. We believe, however, that this is already achieved through the provisions in the Bill.

Rather than creating a single advocacy body to research harms to children and advocate on their behalf, as the noble Lord’s amendment suggests, the Bill achieves the same effect through a combination of Ofcom’s research functions, the consultation requirements and the super-complaints provisions. Ofcom will be fully resourced with the capacity and technological ability to assess and understand emerging harms and will be required to research children’s experiences online on an ongoing basis.

For the first time, there will be a statutory body in place charged with protecting children from harm online. As well as its enforcement functions, Ofcom’s research will ensure that the framework remains up to date and that Ofcom itself has the latest, in-depth information to aid its decision-making. This will ensure that new harms are not just identified in retrospect when children are already affected by them and complaints are made; instead, the regulator will be looking out for new issues and working proactively to understand concerns as they develop.

Children’s perspectives will play a central role in the development of the framework, as Ofcom will build on its strong track record of qualitative research to ensure that children are directly engaged. For example, Ofcom’s ongoing programme, Children’s Media Lives, involves engaging closely with children and tracking their views and experiences year on year.

Alongside its own research functions, super-complaints will ensure that eligible bodies can make complaints on systemic issues, keeping the regulator up to date with issues as they emerge. This means that if Ofcom does not identify a systemic issue affecting children for any reason, it can be raised and then dealt with appropriately. Ofcom will be required to respond to the super-complaint, ensuring that its subsequent decisions are understood and can be scrutinised. Complaints by users will also play a vital role in Ofcom’s horizon scanning and information gathering, providing a key means by which new issues can be raised.

The extensive requirements for Ofcom to consult on codes of practice and guidance will further ensure that it consistently engages with groups focused on the interests of children as the codes and guidance are developed and revised. Children’s interests are embedded in the implementation and delivery of this framework.

The Children’s Commissioner will play a key and ongoing role. She will be consulted on codes of practice and any further changes to those codes. The Government are confident that she will use her statutory duties and powers effectively to understand children’s experiences of the digital world. Her primary function as Children’s Commissioner for England is promoting and protecting the rights of children in England and to promote and protect the rights of children across the United Kingdom where those rights are or may be affected by reserved matters. As the codes of practice and the wider Bill relate to a reserved area of law—namely, internet services—the Children’s Commissioner for England will be able to represent the interests of children from England, Scotland, Wales and Northern Ireland when she is consulted on the preparation of codes of practice. That will ensure that children’s voices are represented right across the UK. The Children’s Commissioner for England and her office also regularly speak to the other commissioners about ongoing work on devolved and reserved matters. Whether she does that in branches of Pret A Manger, I do not know, but she certainly works with her counterparts across the UK.

I am very happy to take back the idea that the noble Lord has raised and discuss it with the commissioner. There are many means by which she can carry out her duties, so I am very happy to take that forward. I cannot necessarily commit to putting it in legislation, but I shall certainly commit to discussing it with her. On the proposals in the noble Lord’s amendment, we are concerned that a separate child user advocacy body would duplicate the functions that she already has, so I hope with that commitment he will be happy to withdraw.

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[Lord Clement-Jones (LD)]

My Lords, I can be very brief. My noble friend Lady Benjamin and the noble Baronesses, Lady Harding, Lady Morgan and Lady Fraser, have all very eloquently described why these amendments in this group are needed.

It is ironic that we are still having this debate right at the end of Report. It has been a running theme throughout the passage of the Bill, both in Committee and on Report, and of course it ran right through our Joint Committee work. It is the whole question of safety by design, harm from functionalities and, as the noble Baroness, Lady Morgan, said, understanding the operation of the algorithm. And there is still the question: does the Bill adequately cover what we are trying to achieve?

As the noble Baroness, Lady Harding, said, Clause 1 now does set out the requirement for safety by design. So, in the spirit of amity, I suggested to the Minister that he might run a check on the Bill during his free time over the next few weeks to make sure that it really does cover it. But, in a sense, there is a serious point here. Before Third Reading there is a real opportunity to run a slide rule over the Bill to see whether the present wording really is fit for purpose. So many of us around this House who have lived and breathed this Bill do not believe that it yet is. The exhortation by the ethereal presences of the noble Baronesses, Lady Kidron and Lady Harding, to keep pressing to make sure that the Bill is future-proofed and contains the right ingredients is absolutely right.

I very much hope that once again the Minister will go through the hoops and explain whether this Bill really captures functionality and design and not just content, and whether it adequately covers the points set out in the purpose of the Bill which is now there.

[Baroness Merron (Lab)]

My Lords, as we have heard, the noble Baroness, Lady Harding, made a very clear case in support of these amendments, tabled in the name of the noble Baroness, Lady Kidron, and supported by noble Lords from across the House. The noble Baroness, Lady Morgan, gave wise counsel to the Minister, as did the noble Lord, Lord Clement-Jones, that it is worth stepping back and seeing where we are in order to ensure that the Bill is in the right place. I urge the Minister to find the time and the energy that I know he has—he certainly has the energy and I am sure he will match it with the time—to speak to noble Lords over the coming Recess to agree a way to incorporate systems and functionality into the Bill, for all the reasons we have heard.

On Monday, my noble friend Lord Knight spoke of the need for a review about loot boxes and video games. When we checked Hansard, we saw the Minister had promised that such a review would be offered in the coming months. In an unusual turn of events, the Minister exceeded the timescale. We did not have to hear the words “shortly”, “in the summer” or “spring” or anything like that, because it was announced the very next day that the department would keep legislative options under review.

I make that point simply to thank the Minister for the immediate response to my noble friend Lord Knight. But, if we are to have such a review, does this not point very much to the fact that functionality and systems should be included in the Bill? The Minister has a very nice hook to hang this on and I hope that he will do so.

Online Safety Bill

Lord Clement-Jones Excerpts

3rd reading
Wednesday 6th September 2023 Lords Chamber

[Baroness Morgan of Cotes (Con)]

My Lords, I welcome Amendments 5 and 6, as well as the amendments that reflect the work done and comments made in earlier stages of this debate by the noble Baroness, Lady Kennedy. Of course, we are not quite there yet with this Bill, but we are well on the way as this is the Bill’s last formal stage in this Chamber before it goes back to the House of Commons.

Amendments 5 and 6 relate to the categorisation of platforms. I do not want to steal my noble friend’s thunder, but I echo the comments made about the engagement both from my noble friend the Minister and from the Secretary of State. I am delighted that the indications I have received are that they will accept the amendment to Schedule 11, which this House voted on just before the Recess; that is a significant and extremely welcome change.

When commentators outside talk about the work of a revising Chamber, I hope that this Bill will be used as a model for cross-party, non-partisan engagement in how we make a Bill as good as it possibly can be—particularly when it is as ground-breaking and novel as this one is. My noble friend the Minister said in a letter to all of us that this Bill had been strengthened in this Chamber, and I think that is absolutely right.

I also want to echo thanks to the Bill team, some of whom I was working with four years ago when we were talking about this Bill. They have stuck with the Bill through thick and thin. Also, I thank noble Lords across the House for their support for the amendments but also all of those outside this House who have committed such time, effort, support and expertise to making sure this Bill is as good as possible. I wish it well with its final stages. I think we all look forward to both Royal Assent and also the next big challenge, which is implementation.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for his introduction today and also for his letter which set out the reasons and the very welcome amendments that he has tabled today. First, I must congratulate the noble Baroness, Lady Stowell, for her persistence in pushing amendments of this kind to Clause 45, which will considerably increase the transparency of the Secretary of State’s directions if they are to take place. They are extremely welcome as amendments to Clause 45.

Of course, there is always a “but”—by the way, I am delighted that the Minister took the advice of the House and clearly spent his summer reading through the Bill in great deal, or we would not have seen these amendments, I am sure—but I am just sorry that he did not take the opportunity also to address Clause 176 in terms of the threshold for powers to direct Ofcom in special circumstances, and of course the rather burdensome powers in relation to the Secretary of State’s guidance on Ofcom’s exercise of its functions under the Bill as a whole. No doubt we will see how that works out in practice and whether they are going to be used on a frequent basis.

My noble friend Lord Allan—and I must congratulate both him and the noble Lord, Lord Knight, for their addressing this very important issue—has set out five assurances that he is seeking from the Minister. I very much hope that the Minister can give those today, if possible.

Congratulations are also due to the noble Baroness, Lady Kennedy, for finding a real loophole in the offence, which has now been amended. We are all delighted to see that the point has been well taken.

Finally, on the point raised by the noble Lord, Lord Rooker, clearly it is up to the Minister to respond to the points made by the committee. All of us would have preferred to see a comprehensive scheme in the primary legislation, but we are where we are. We wanted to see action on apps; they have some circumscribing within the terms of the Bill. The terms of the Bill—as we have discussed—particularly with the taking out of “legal but harmful”, do not give a huge amount of leeway, so this is not perhaps as skeleton a provision as one might otherwise have thought. Those are my reflections on what the committee has said.

[Lord Knight of Weymouth (Lab)]

My Lords, I do not know how everyone has spent their summer, but this feels a bit like we have been working on a mammoth jigsaw puzzle and we are now putting in the final pieces. At times, through the course of this Bill, it has felt like doing a puzzle in the metaverse, where we have been trying to control an unreliable avatar that is actually assembling the jigsaw—but that would be an unfair description of the Minister. He has done really well in reflecting on what we have said, influencing his ministerial colleagues in a masterclass of managing upwards, and coming up with reasonable resolutions to previously intractable issues.

We are trusting that some of the outcome of that work will be attended to in the Commons, as the noble Baroness, Lady Morgan, has said, particularly the issues that she raised on risk, that the noble Baroness, Lady Kidron, raised on children’s safety by design, and that my noble friend Lady Merron raised on animal cruelty. We are delighted at where we think these issues have got to.

For today, I am pleased that the concerns of the noble Baroness, Lady Stowell, on Secretary of State powers, which we supported, have been addressed. I also associate myself with her comments on parliamentary scrutiny of the work of the regulator. Equally, we are delighted that the Minister has answered the concerns of my noble friend Lady Kennedy and that he has secured the legislative consent orders which he informed us of at the outset today. We would be grateful if the Minister could write to us answering the points of my noble friend Lord Rooker, which were well made by him and by the Delegated Powers Committee.

I am especially pleased to see that the issues which we raised at Report on remote access have been addressed. I feel smug, as I had to press quite hard for the Minister to leave the door open to come back at this stage on this. I am delighted that he is now walking through the door. Like the noble Lord, Lord Allan, I have just a few things that I would like clarification on—the proportional use of the powers, Ofcom taking into account user privacy, especially regarding live user data, and that the duration of the powers be time- limited.

Finally, I thank parliamentarians on all sides for an exemplary team effort. With so much seemingly falling apart around us, it is encouraging that, when we have common purpose, we can achieve a lot, as we have with this Bill.

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Finally, I thank my noble friends Lady Gillian Merron and Lord Jim Knight, who have supported me throughout this period despite having significant responsibilities in other areas, have taken the strain when needed without complaint, and have indeed won improvements to the Bill that I perhaps would not even have thought of, let alone obtained. It has been a real team effort, a joy and a pleasure, and a most enjoyable experience.

[Lord Clement-Jones (LD)]

My Lords, I am probably going to echo quite a lot of what the noble Lord, Lord Stevenson, had to say, and I also pay tribute to him. This is an absolutely crucial piece of cross-party-supported legislation that many said was impossible. I believe that it is a landmark, and we should all take huge encouragement from seeing it pass through this House.

We started with the Green Paper, as the noble Lord, Lord Stevenson, said, back in 2017. Many of us have been living with this issue since then, and I hope that therefore the House will not mind if I make a few more extended remarks than usual on the Motion that the Bill do now pass. I will not disappoint the noble Lord, Lord Stevenson, because I will quote from the original Joint Committee report. As we said in the introduction to our Joint Committee report back in 2021:

“The Online Safety Bill is a key step forward for democratic societies to bring accountability and responsibility to the internet”.


We said that the most important thing was to

“hold online services responsible for the risks created by their design and operation”.

Our children and many others will be safer online as a result.

Across the House, this has been a huge joint venture. We made some very good progress, with the Minister and the Secretary of State demonstrating considerable flexibility. I thank them sincerely for that. We have tightened the Bill up, particularly regarding harms and risks, while, I believe, ensuring that we protect freedom of expression. Many Members of this House, including former Members of the Joint Committee, can take some pride in what has been achieved during the passage of the Bill through the House. I will add my thanks to some of them individually shortly.

The Minister mentioned a relatively short list; he was actually rather modest in mentioning some of the concessions that have been given while the Bill has passed through the House. For instance, the tightening up of the age-assurance measures and the adding of a schedule of age-assurance principles are really important additions to the Bill.

Risk assessment of user empowerment tools is very important, and I believe that the provisions about app stores and future regulation are an important aspect of the Bill. The freedom of expression definition has been inserted into the Bill. We have had new offences, such as facilitating self-harm and intimate image abuse, added during the passage of the Bill. I am delighted to say that, as the noble Lord, Lord Stevenson, said, we expect to hear further concessions in the Commons on both the functionality issue raised by the noble Baroness, Lady Kidron, and the category 1 aspects raised by the noble Baroness, Lady Morgan.

We very much welcome the amendments that have been tabled today, including the remote-viewing clarification. We wait to hear what the Government’s position will be—I am sure that discussions are ongoing since the House voted to include a provision to review whether animal cruelty offences online should be brought into scope, and I am delighted to see the noble Baroness, Lady Hayman, here—and whether they will preserve the amendment and perhaps also include wildlife-trafficking offences in order to ensure that we avoid ping-pong on that last issue.

We on these Benches have never been minded to spoil the ship for a halfpenny-worth of tar, but that is not to say that there are not areas where we would have liked to have seen a bit more progress. I do not think the Minister will be surprised to hear me say that there are one or two such areas, such as: risk assessment, where we believe that the terms of service should be subject to a mandatory risk assessment; the threshold of evidence required for illegality; the prosecution threshold as regards the encouragement of non-fatal self-harm; the intent requirement for cyber flashing; and verification status and visibility, and whether Ofcom can actually introduce requirements.

I heard what the Minister had to say about AI-generated pornography but, like the NSPCC, I am not convinced that we have adequately covered the features provided as part of a service in the metasphere with which users interact. Bots in the metaverse are demonstrating an extraordinary level of autonomy that could potentially be harmful and, it seems, may not be covered by the Bill. Time will tell, and we will see whether that is the case.

Then of course there is the lack of legislative teeth for the review of research access and no requirement for guidance afterwards. I very much hope that will happen, despite there being no obligation at the end of the day.

I have mentioned Clauses 176 and 177. We wait to see how those will pan out. Then of course there is the issue on which these Benches have spoken virtually alone: the question of news publisher definition and exemption.

I very much welcome the last piece of assurance that the Minister gave in terms of Ofcom’s powers under Clause 122. Even as late as last night we heard news reports and current affairs programmes discussing the issue, and I genuinely believe that what the Minister said will be reassuring. Certainly I took comfort from what he had to say, and I thank him for agreeing to say it at a pretty late stage in the proceedings.

I think we all recognise that in many ways the Bill is just the beginning. There will be much further work to be done. We need to come back on misinformation when the committee set up under Clause 153 has reported. I hope that in particular it will look at issues such as provenance solutions such as those provided by the Content Authenticity Initiative. Fundamental changes will be needed to our electoral law in order to combat misinformation in the course of our elections, because we have had several Select Committees say that, and I believe the misinformation advisory committee will come to the same conclusion.

It is also clear that Parliament itself needs to decide how best to scrutinise the Bill in both its operation and its effectiveness. As we in the Joint Committee sought to suggest, there could be a Joint Committee of both Houses to carry on that scrutiny work, but I very much hope that will not be the case. I hope the SIT Select Committee in the Commons will pick up the cudgel and that the committee of the noble Baroness, Lady Stowell, the Communications and Digital Select Committee, will do likewise in the House of Lords.

Online Safety Bill

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Consideration of Commons amendments
Tuesday 19th September 2023 Lords Chamber

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

My Lords, I beg to move Motion A and, with the leave of the House, I shall also speak to Motions B to H.

I am pleased to say that the amendments made in your Lordships’ House to strengthen the Bill’s provisions were accepted in another place. His Majesty’s Government presented a number of amendments in lieu of changes proposed by noble Lords, which are before your Lordships today.

I am grateful to my noble friend Lady Morgan of Cotes for her continued engagement on the issue of small but high-risk platforms. The Government were happy to accept her proposed changes to the rules for determining the conditions that establish which services will be designated as category 1 or 2B services. In making the regulations, the Secretary of State will now have the discretion to decide whether to set a threshold based on either the number of users or the functionalities offered, or on both factors. Previously, the threshold had to be based on a combination of both.

It remains the expectation that services will be designated as category 1 services only where it is appropriate to do so, to ensure that the regime remains proportionate. We do not, for example, expect to apply these duties to large companies with very limited functionalities. This change, however, provides greater flexibility to bring smaller services with particular functionalities into scope of category 1 duties, should it be necessary to do so. As a result of this amendment, we have also made a small change to Clause 98—the emerging services list—to ensure that it makes operational sense. Before my noble friend’s amendment, a service would be placed on the emerging services list if it met the functionality condition and 75% of the user number threshold. Under the clause as amended, a service could be designated as category 1 without meeting both a functionality and a user condition. Without this change, Ofcom would, in such an instance, be required to list only services which meet the 75% condition.

We have heard from both Houses about the importance of ensuring that technology platforms are held to account for the impact of their design choices on children’s safety. We agree and the amendments we proposed in another place make it absolutely clear that providers must assess the impact of their design choices on the risk of harm to children, and that they deliver robust protections for children on all areas of their service. I thank in particular the noble Baroness, Lady Kidron, the noble Lords, Lord Stevenson of Balmacara and Lord Clement-Jones, my noble friend Lady Harding of Winscombe and the right reverend Prelate the Bishop of Oxford for their hard work to find an acceptable way forward. I also thank Sir Jeremy Wright MP for his helpful contributions to this endeavour.

Noble Lords will remember that an amendment from the noble Baroness, Lady Merron, sought to require the Secretary of State to review certain offences relating to animals and, depending on the outcome of that review, to list these as priority offences. To accelerate protections in this important area, the Government have tabled an amendment in lieu listing Section 4(1) of the Animal Welfare Act 2006 as a priority offence. This will mean that users can be protected from animal torture material more swiftly. Officials at the Department for Environment, Food and Rural Affairs have worked closely with the RSPCA and are confident that the Section 4 offence, unnecessary suffering of an animal, will capture a broad swathe of illegal activity. Adding this offence to Schedule 7 will also mean that linked inchoate offences, such as encouraging or assisting this behaviour, are captured by the illegal content duties. I am grateful to the noble Baroness for raising this matter, for her discussions on them with my noble friend Lord Camrose and for her support for the amendment we are making in lieu.

To ensure the speedy implementation of the Bill’s regime, we have added Clauses 116 to 118, which relate to the disclosure of information by Ofcom, and Clauses 170 and 171, which relate to super-complaints, to the provisions to be commenced immediately on Royal Assent. These changes will allow Ofcom and the Government to hold the necessary consultations as quickly as possible after Royal Assent. As noble Lords know, the intention of the Bill is to make the UK the safest place in the world to be online, particularly for children. I firmly believe that the Bill before your Lordships today will do that, strengthened by the changes made in this House and by the collaborative approach that has been shown, not just in all quarters of this Chamber but between both Houses of Parliament. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister very warmly for his introduction today. I shall speak in support of Motions A to H inclusive. Yes, I am very glad that we have agreement at this final milestone of the Bill before Royal Assent. I pay tribute to the Minister and his colleagues, to the Secretary of State, to the noble Baronesses, Lady Morgan, Lady Kidron and Lady Merron, who have brought us to this point with their persistence over issues such as functionalities, categorisation and animal cruelty.

This is not the time for rehearsing any reservations about the Bill. The Bill must succeed and implementation must take place swiftly. So, with many thanks to the very many, both inside and outside this House, who have worked so hard on the Bill for such a long period, we on these Benches wish the Bill every possible success. He is in his place, so I can say that it is over to the noble Lord, Lord Grade, and his colleagues at Ofcom, in whom we all have a great deal of confidence.