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.