Online Safety Bill

Lord Faulks Excerpts

Committee stage
Tuesday 23rd May 2023 Lords Chamber

At the end of the day, this should not be a press regulation Bill, and it is wrong to try to do that. It is a Bill about the responsibility of the vast unaccountable, unregulated platforms which disseminate so much dangerous and harmful content without anyone having recourse, as we have heard powerfully already this afternoon, and not a Bill about the publishers who produce verifiable, trusted journalism which is the lifeblood of a democracy. We confuse the two at our peril and at the cost of the free press, which I know all your Lordships hold dear.

[Lord Faulks (Non-Afl)]

My Lords, much of what I would have said has been said by the noble Lord, Lord Black, so I will make my contribution brief. Elegantly dressed up as these amendments were by the noble Lord on behalf of the noble Lords, Lord Lipsey and Lord McNally, to whom I also say get well soon, they are in fact intended to change the way the press is currently regulated. I declare my interest as chairman of IPSO, a post I have held since January 2020. IPSO regulates 95%, by circulation, of the printed press, and that includes online versions of newspapers.

Noble Lords will remember the Leveson inquiry, following the discovery of unacceptable press practices including phone hacking. Parliament’s response was to create the Press Recognition Panel and the concept of an approved regulator. It was not state regulation, but nor was it the status quo ante. Only one regulator has sought and attained approved status: Impress. The Press Recognition Panel was chaired by David Wolfe KC, who provided a quotation to the noble Lord. Impress is funded by the estate of Max Mosley. It does not regulate any of the main national newspapers, which have either, like the Guardian, elected for self-regulation, or, like most of the others, selected IPSO as their regulator. Now, clearly it would be unattractive for me to extol the virtues of IPSO, but to its critics I recommend reading the newly published independent external review, written by Sir Bill Jeffrey, former Permanent Secretary at the MoD. I think readers would generally be reassured by the report.

Section 40 of the Crime and Courts Act was intended as a stick—or was it a carrot—to drive newspapers into the arms of the approved regulator. Even when I had nothing to do with press regulation, I did not like that provision, which has hovered over the newspaper industry like the sword of Damocles. It has never been brought into effect, and I welcome the fact that the Government now intend to repeal Section 40 via the media Bill—although I accept, as the noble Lord, Lord Black, said, that there may be a debate about the proper scope of regulation, and indeed of Section 40, when that comes before Parliament.

As I understand these amendments, regulation of the largest websites would prospectively be the subject of the Online Safety Bill’s regulatory regime. I echo comments already made that this extraordinarily significant Bill is not primarily directed at press regulation at all. It is intended by these amendments that for newspapers to qualify for the recognised news publisher status, they would have to be a member of an approved regulator. This is plainly an attempt to dismantle the current system of press regulation.

It seems something of an irony that newspapers that are regulated by IPSO or even self-regulated have accountability, however imperfect, whereas, pending the passing of the Bill, internet platforms are wholly unregulated—yet it is sought to pass off some of the regulation of newspapers to Ofcom. Is Ofcom ready, willing or even equipped to replicate the complaints system that currently obtains? I think Ofcom would have quite enough to do. Is its horizon-scanning model even appropriate for press complaints? It is very early days to increase the scope of Ofcom’s rule. The Government have promised a review of the regulatory framework in two or three years; I suppose then it might be possible to assess whether Ofcom’s role should change or be enlarged. Until then, it seems inappropriate to do so.

I suggest that the current system of press regulation should not be the subject of further statutory provision at this juncture, or indeed at all. There have been some deplorable press practices in the past, but the traditional printed press in this country, albeit a much-reduced animal with diminished circulation and advertising revenues, nevertheless has some real strengths. A free, vigorous and challenging press is part of a functioning democracy. We should be very wary of giving a Government, of whatever colour and by whatever means, greater power to control it.

[Baroness Grey-Thompson (CB)]

My Lords, I speak in favour of Amendments 124, 126 and 227 to which my name is attached. I will reserve my comments mostly to the Bill’s loophole on newspaper comment sections.

These forums would qualify as social media platforms under the Bill’s definition were it not for a special exemption in Clause 49. They have been found to host some of the most appalling and despicable content online. I will paraphrase some examples so as not to subject the Committee to the specific language used, but they include anti-Semitic slurs in comments appearing under articles covering a violent attack on a synagogue; Holocaust denial; and speculation that Covid was created and spread by a secretive global cabal of powerful individuals who control the world’s leaders like puppets.

Some of the worst abuse is reserved for women in public life, which I and others in your Lordships’ House have personally experienced. In an article about a female leader, comments included that she should be struck down or executed by the SAS. Others commented graphically on her appearance and made disturbing sexual remarks. Another woman, Professor Fowler—who the noble Lord, Lord Clement-Jones, has already discussed —was described as having a sick mind and a mental disorder; one comment implied that a noose should be prepared for her. There are many more examples.

Comment sections are in too many cases badly regulated and dangerous places for members of the public. The exemption for them is unwarranted. Specifically, it protects any social media platform where users make comments in response to what the Bill describes as “provider content”. In this case, that means comments posted in response to articles published by the newspaper. This is materially no different from user exchanges of any other kind and should be covered just the same.

The Government have previously argued that there should be a distinction between newspaper comment sections and other platforms, in that other platforms allow for virality because posts that are liked and retweeted do better than the others. But this is exactly the same for many modern comment sections. Lots of these include functionality to upvote certain comments, which can then rise to the top of the comment section on that article.

There are estimated to be around 15 million people on Twitter in the UK—I am one of them—but more than twice that number read newspaper websites every month. These comment sections are social media platforms with the same power, reach and capacity to cause harm as the US giants. We should not treat them any differently on account of the fact that they are based out of Fleet Street rather than Silicon Valley.

There are some concerns that the Bill’s requirements would put an undue burden on small organisations running comment sections, so this amendment would apply only to organisations with an annual turnover in excess of £100 million. This would ensure that only the largest titles, which can surely afford it, are required to regulate their comment sections. Amendment 124 would close the comment section loophole, and I urge the Government to act on it.

It is a great shame that, due to the lateness of the hour, my noble friend Lady Hollins is unable to be here. She would strongly support Amendment 126 on several points but specifically wanted to talk about how the exemption creates double standards between how the public and news publishers are treated, and puts platforms and Ofcom in an impossible situation over whether newspapers meet vague criteria to access exemptions.

I also support Amendments 126 and 227, which would help protect the public from extremist and other dangerous websites by preventing them accessing the separate media exemption. In all these matters, we must not let overbroad exemptions and loopholes undermine what good work this Bill could do.

Online Safety Bill

Lord Faulks Excerpts

Report stage
Wednesday 12th July 2023 Lords Chamber

I am pleased to hear from the noble Lord that he will not divide the House, because to do so would be to hijack this important legislation, in which we should all take great pride, and turn it into something it was never intended to be.

[Lord Faulks (Non-Afl)]

My Lords, I declare my interest—although I think it has already been declared for me by the noble Lords, Lord McNally and Lord Lipsey—as the chair of the Independent Press Standards Organisation.

We had this debate in Committee, although not with the same actors; I am glad to see both of them now back in their places and restored to health. However, I cannot welcome all the comments they made, particularly not those of the noble Lord, Lord Lipsey, critical as he was of IPSO. I should tell the House that IPSO is not on the side of the press. It is not on anybody’s side: it is an independent organisation for the regulation of the press that regulates, by circulation, some 95% of both national and regional newspapers.

The noble Lord, Lord Lipsey, spoke of how ineffective we were as an organisation and was rather disparaging about the reviews of IPSO’s governance and operations. I ought, at the very least, to maintain a defence of Sir Bill Jeffrey, a very distinguished civil servant in the Ministry of Defence who recently carried out a report on IPSO. I hope that Members of your Lordships’ House, particularly the noble Lords, Lord Lipsey and Lord McNally, will read the report to see in what ways they consider IPSO is still not showing its independence, but I would very much defend Sir Bill Jeffrey’s independence and the way in which he approached the task. I think it unfortunate that he was attacked in the way he was by the noble Lord. I give way.

[Lord Lipsey (Lab)]

Does the noble Lord agree that a report which gives as part of its evidence conversations with a sample of precisely 12 complainants cannot be taken seriously?

[Lord Faulks (Non-Afl)]

The report must be read as a whole. I do not accept at all what the noble Lord has said. It is worth visiting the IPSO website, because he was very disparaging about the number of complaints that were upheld. IPSO is very transparent; its website shows all the decisions that were reached and the way in which they were reached. I invite those who doubt its independence to look at the constituent elements of those who are on the complaints committee and the board, and all the published decisions, in order to decide whether IPSO is indeed in the pockets of the press, which seemed to be the suggestion made by both noble Lords.

Of course, the approved regulator, Impress, has very little work to do. I am sure it does its work highly conscientiously. The code by which it regulates is remarkably similar to the editors’ code, which is produced by the industry, it is true, with contributions from all sorts of people. It varies from year to year. There is very little criticism of the editors’ code. It provides a very sensible and balanced view to make the press accountable, allowing the complaints committee to decide whether there has been a violation of the code.

The noble Lord, Lord Lipsey, said that at last it has found the press to be in breach of that code in the recent complaint. It was interesting that the complaints body which I chair was alleged to not be independent of the press. It was roundly criticised by the press for coming to that decision—by the Times, the Telegraph and the Daily Mail. At the same time, it is said that the organisation which I chair is not independent. It is of course independent and will continue to be so.

As for Section 40, before I had anything to do with press regulation, I did not like it. As a lawyer, the idea of somebody having a free hit against anybody is unattractive. Whatever you think of press regulation, I do not think that Section 40 should commend itself to anybody. As they have promised for some time, the Government are quite right to include it in the media Bill, which is to come before your Lordships’ House in due course. It has been a sword of Damocles hanging over the industry. It is not helpful, and I hope that it is repealed. I understand that the Labour Party and perhaps the Liberal Democrats will bring back something of that sort. I understand they may be opposing it when it comes into the media Bill, but that is a matter for them in due course.

Of course, the press should be accountable. Of course, it should be properly regulated. The idea of an independent regulator is to provide reassurance that it is being regulated, as opposed to, until this Bill becomes law, social media—which is not regulated—which provides a source for news which is considerably less reliable than all those newspapers which are subject to regulation.

This is not the occasion to go into further debates about Leveson, but it is perhaps worth rereading the Leveson report and the conclusions that Sir Brian reached—which I have done recently. It must be seen, as all reports, as very much of its time. It is particularly interesting to see the extent to which he promoted and advanced the cause of arbitration. Alternative dispute resolution is very much at the centre of what the legal profession as a whole, and Sir Brian Leveson and his committee in particular, advance as a much better way to resolve disputes. There is an arbitration scheme provided by IPSO, as noble Lords and the House may know. Of course, that is an option which we would encourage people to use—consistent with what Sir Brian and his committee recommended. It is not a substitute for going to court, and if people want to, they should be allowed to do so. However, I think there is a case for courts considering having directions whereby, at first, somebody seeking relief in the court should show that they have exhausted alternative remedies, including alternative dispute resolution. I am in favour of that.

On the idea of being Leveson-compliant—I do not think Sir Brian Leveson particularly likes that expression. He made various recommendations, many of which are reflected in what IPSO does now. I understand there is a great deal of history in this debate. I remember the debates myself. No doubt, we will return to them in due course, but I think we should fight today’s battles, and not the battles of 10 years ago or longer. I think the press is much more accountable and responsible than it was. Of course, as parliamentarians, we will carefully watch what the press do and consider carefully whether this exemption is merited. However, I do not think that this amendment is justified and I hope that the Government do not support it.

[Lord Allan of Hallam (LD)]

My Lords, I want to bring the tone of the debate down somewhat to talk about government Amendments 158 and 161 in a rather nerdier fashion. I hope that the House will be patient with me as I do that.

The Minister said that these two amendments introduce some “minor changes” that would make the Bill work as intended. I want to explore whether they are rather more significant than the Minister has given them credit for, and whether they may have unintended consequences. As I understand it, the purpose of the amendments is to ensure that all forms of video and audio content, in long form or short form, whether originally broadcast or made exclusively for social media, will now benefit from the news publisher exemptions.

Particularly thinking about this from a social media point of view—the noble Lord, Lord Faulks, just made the point about news publishers such as newspapers—when we have been looking at the Bill and the news publisher exemption, we have been thinking of the BBC and newspapers. We have been thinking a lot less about people who regard themselves to be news publishers but produce things exclusively for social media—often in a clickbait fashion, using a lot of short-form material. As I read these amendments, they are saying very clearly that this kind of material will benefit from the news publisher exemption. That opens up a whole series of questions we must ask ourselves about whether that will have unintended consequences.

Looking at this in the context of what it takes to be registered as a news publisher in Clause 50, the noble Viscount, Lord Colville, referred to the fact that there is an intention and a view that Clause 50 should be kept broad so that people can register as news publishers. Clearly, that is good for media diversity, but if we look at those tests, they are tests that I think that a lot of organisations could pass. We must ask ourselves who might try to establish themselves as a recognised news publisher. They would need to have an office in the United Kingdom. They would also need to apply our standards code, but Clause 50(6)(b) says that the standards code can be their own standards code—it does not have to be anyone else’s.

I am not going to get into a debate about who should be the press regulator; that is for other noble Lords. As I read it, these internet services could pass the Clause 50(2) test by establishing the office and meeting a few basic requirements, then under Clause 50(6)(b) say, “I’ve got a standards code. It’s my standards code. I’ve written it—on the back of an envelope but it’s a standards code”. Then we need to think about who might want to take advantage of that material. My reading of the Bill, thinking about intention, is that services such as Breitbart News—which is not my cup of tea, but is a recognised news publisher—would pass the test and would be able to establish themselves as a news publisher in the UK, benefiting from the exemptions. Whether or not I agree with it, I can see that is a reasonable unintended outcome.

My concern is about other services, such as Infowars, which I am sure everybody is familiar with. It is a service that has caused untold harm and has been sued in the US courts for defamation—which is a pretty high bar. Infowars has clearly caused so much harm that it has found itself on the wrong end of defamation lawsuits in the United States. I do not think it should in any way be our intention that a service such as Infowars should be able to benefit from the special privileges granted to news publishers under the legislation. I know that it is hard to draw lines, and I am not expecting the Minister to say at the Dispatch Box exactly where the line should be drawn. However, I think that without citing examples such as that, we risk not testing the legislation to destruction—which is precisely what we should be doing here—and ending up in a scenario where we have created a news publisher exemption that could be taken advantage of by the wrong organisations. Someone has to draw a line and make a classification.

As we create this news publisher exemption, it is incumbent on us to describe it to people out there in vernacular terms they would understand. My understanding is that the BBC, the Daily Mail, Breitbart News—all those are in. We expect them to be able to pass the Clause 50 test and we have no problem with that. Russia Today, Infowars and a whole host of other services that brand themselves news but are incredibly harmful and destructive to society and individuals—we would want them to fail the Clause 50 test.

I hope the Minister will at least acknowledge that there is going to be a challenge around bad services run by bad people claiming to be news publishers under Clause 50. I hope he will agree that it is not our intention to give publisher privileges to services such as Infowars that cause so much harm to society.