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.