Online Safety Bill

Lord Garnier Excerpts

Committee stage
Thursday 22nd June 2023 Lords Chamber

[Baroness Buscombe (Con)]

My Lords, I shall speak to Amendments 266 and 267, to which my noble and learned friend Lord Garnier, my noble friend Lord Leicester and the noble Lord, Lord Clement-Jones, have added their names. They are the final two amendments from a group of amendments that were also supported by the noble Lord, Lord Moore of Etchingham, and the noble Baroness, Lady Mallalieu.

The purpose of this Bill is to make the internet a safer place. The new offence of false communications is just one of the important means it seeks to use with the objective of making it an offence to harm people by telling lies online—and this is welcome. It is right that the Bill should focus on preventing harms to individuals. One of the most important guarantors that a person can have of good health and well-being is their freedom to pursue their livelihood unimpeded by illegitimate hostile action. Attacks on people’s livelihoods have the potential to wreak unimaginable harm on their mental and physical health, but these attacks are also among the easiest to perpetrate through the internet. My amendments seek to prevent such harms by protecting people who run, or work for, businesses that have been targeted with malicious fake reviews posted to online platforms, such as Google Maps or TripAdvisor. These platforms already fall within scope of this Bill in hosting user-generated content.

By referencing fake reviews, I am not referring to legitimate criticism, fair comment or even remarks about extraneous matters such as the owners’ pastimes or opinions, provided that the reviewer is honest about the nature of their relationship with the business. If someone wants to write a review of a business which they admit they have never patronised, and criticise it based on such factors, this would not be illegal, but it would very likely breach the platform’s terms of service and be removed. Review platforms are not the proper venue for such discussions; their role is to let people share opinions about a business’s products and services, but policing that is up to them.

The malicious fake reviews that I am referring to are those that are fundamentally dishonest. People with grudges to bear know that the platforms they use to attack their victims will remove any reviews that are clearly based on malice rather than a subjective assessment of quality. That is why they have come to adopt more insidious tactics. Without mentioning the real reason for their hostility towards a business and/or its staff, they purport to be customers who have had bad experiences. Of course, in almost every case, the reviewer has never so much as gone near the business. The review is therefore founded on lies.

This is not merely an abstract concern. Real people are being really harmed. Noble Lords will know that in earlier debates I used the prism of rural communities to amplify the objective of my amendments. Only yesterday, during Oral Questions in your Lordships’ House, there was an overwhelming collective consensus that we need to do more to protect the livelihoods of those working so hard in rural communities. My simple amendments would make a massive difference to their well-being.

The Countryside Alliance recently conducted a survey that found innumerable instances of ideologically motivated fake reviews targeted at rural businesses; these were often carried out by animal rights extremists and targeted businesses and their employees who sometimes participated in activities to which they objected, such as hosting shoots or serving meat. In April this year, the Telegraph reported on one case of a chef running a rural pub whose business was attacked with fake reviews by a vegan extremist who had verifiably never visited the pub, based initially on the man’s objection to him having posted on social media a picture of a roast chicken. The chef said these actions were making him fear for his livelihood as his business fought to recover from the pandemic. He is supporting my amendments.

Amendment 266 would therefore simply add the word “financial” to “physical” and “psychological” in the Bill’s definition of the types of harm that a message would need to cause for it to amount to an offence. This amendment is not an attempt to make the Bill into something it was not designed to be. It is merely an attempt to protect the physical and mental health of workers whose businesses are at risk of attack through malicious fake reviews. It may be that the victim of such an attack could argue that a fake review has caused them physical or psychological harm, as required under the Bill as currently drafted—indeed, it would likely do so. The reason for adding financial harm is to circumvent the need for victims to make that argument to the police, the police to the Crown Prosecution Service and then the prosecutors in front of the jury.

That links to Amendment 267, which would enlarge the definition of parties who may be harmed by a message for it to an amount to an offence. Under the Bill, a message must harm its intended, or reasonably foreseeable, recipient; however, it is vital to understand that a person need not receive the message to be harmed by it. In the case of fake reviews, the victim is harmed because the false information has been seen by others; he or she is not an intended recipient. The amendment would therefore include harms to the person or organisation to which the information—or, in reality, disinformation—contained within it relates.

My principal objective in bringing these amendments is not to create a stick with which to beat those who wish harm to others through malicious fake reviews; rather—call me old-fashioned—it is about deterrence. It is to deter this conduct by making it clear that it is not acceptable and would, if necessary, be pursued by police and through the courts under criminal law. It is about seeing to it that malicious fake reviews are not written and their harm is not caused.

I am aware that the Government have responded to constituents who have contacted their MPs in support of these amendments to say that they intend to act through the Competition and Markets Authority against businesses that pay third parties to write fake disparaging reviews of their competitors. I must stress to my noble friend the Minister, with respect, that this response misunderstands the issue. While there is a problem with businesses fraudulently reviewing their competitors to gain commercial advantage—and it is welcome that the Government plan to act on it—I am concerned with extreme activists and other people with ideological or personal axes to grind. These people are not engaged in any relevant business and are not seeking to promote a competitor by comparison. It is hard to see how any action by the Competition and Markets Authority could offer an effective remedy. The CMA exists to regulate businesses, not individual cranks. Further, this is not a matter of consumer law.

If the Government wish to propose some alternative means of addressing this issue besides my amendments, I and those who have added their names—and those who are supporters beyond your Lordships’ House—would be pleased to engage with Ministers between now and Report. In that regard though, I gently urge the Government to start any conversation from a position of understanding—really understanding—what the problem is. I fully appreciate that the purpose of this Bill is to protect individuals, and that is the key point of my amendments. My focus is upon those running and working in small businesses who are easy targets of this form of bullying and abuse. It is entirely in keeping with the spirit and purpose of the Bill to protect them.

Finally, I must be clear that the prism of what happens in our rural areas translates directly to everything urban across the UK. A practical difference is that people working in remote areas are often very isolated and find this intrusion into their life and livelihood so hard to cope with. We live in a pretty unpleasant world that is diminishing our love of life—that is why this Bill is so necessary.

[Lord Garnier (Con)]

My Lords, I wish to add to what my noble friend Lady Buscombe has just said, but I can do so a little more briefly, not least because she has made all the points that need to be made.

I would disagree with her on only one point, which is that she said—I am not sure that she wanted to be called old-fashioned, but she certainly wanted to have it explained to us—that the purpose of our amendment was to deter people from making malicious posts to the detriments of businesses and so forth. I think it is about more than deterrence, if I may say so. It is about fairness and justice.

It is very natural for a civilised, humane person to want to protect those who cannot protect themselves because of the anonymity of the perpetrator of the act. Over the last nearly 50 years, I have practised at the media Bar, including in cases based on the tort of malicious falsehood, trade libel or slander of goods. Essentially, my noble friend and I are trying to bring into the criminal law the torts that I have advised on and appeared in cases involving, so that the seriousness of the damage caused by the people who do these anonymous things can be visited by the weight of the state as the impartial prosecutor.

--- Later in debate ---

[Lord Moylan (Con)]

My Lords, as the noble Lord, Lord Clement-Jones, said, this is a very broad group, so I hope noble Lords will forgive me if I do not comment on every amendment in it. However, I have a great deal of sympathy for the case put forward by my noble friend Lady Buscombe and my noble and learned friend Lord Garnier. The addition of the word “financial” to Clause 160 is not only merited on the case made but is a practical and feasible thing to do in a way that the current inclusion of the phrase “non-trivial psychological” is not. After all, a financial loss can be measured and we know how it stands. I will also say that I have a great deal of sympathy with what the noble Lord, Lord Clement-Jones, said about his amendment. In so far as I understand them—I appreciate that they have not yet been spoken to—I am also sympathetic to the amendments in the names of the noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Allan of Hallam.

I turn to my Amendment 265, which removes the word “psychological” from this clause. We have debated this already, in relation to other amendments, so I am going to be fairly brief about it. Probably through an oversight of mine, this amendment has wandered into the wrong group. I am going to say simply that it is still a very, very good idea and I hope that my noble friend, when he comes to reflect on your Lordships’ Committee as a whole, will take that into account and respond appropriately. Instead, I am going to focus my remarks on the two notices I have given about whether Clauses 160 and 161 should stand part of the Bill; Clause 161 is merely consequential on Clause 160, so the meat is whether Clause 160 should stand part of the Bill.

I was a curious child, and when I was learning the Ten Commandments—I am sorry to see the right reverend Prelate has left because I hoped to impress him with this—I was very curious as to why they were all sins, but some of them were crimes and others were not. I could not quite work out why this was; murder is a crime but lying is not a crime—and I am not sure that at that stage I understood what adultery was. In fact, lying can be a crime, of course, if you undertake deception with intent to defraud, and if you impersonate a policeman, you are lying and committing a crime, as I understand it—there are better-qualified noble Lords than me to comment on that. However, lying in general has never been a crime, until we get to this Bill, because for the first time this Bill makes lying in general—that is, the making of statements you know to be false—a crime. Admittedly, it is a crime dependent on the mode of transmission: it has to be online. It will not be a crime if I simply tell a lie to my noble and learned friend Lord Garnier, for example, but if I do it online, any form of statement which is not true, and I know not to be true, becomes a criminal act. This is really unprecedented and has a potentially chilling effect on free speech. It certainly seems to be right that, in your Lordships’ Committee, the Government should be called to explain what they think they are doing, because this is a very portentous matter.

The Bill states that a person commits the false communications offence if they send a message that they know to be false, if they intend the message to cause a degree of harm of a non-trivial psychological or physical character, and if they have no reasonable excuse for sending the message. Free speech requires that one should be allowed to make false statements, so this needs to be justified. The wording of the offence raises substantial practical issues. How is a court meant to judge what a person knows to be false? How is a committee of the House of Commons meant to judge, uncontroversially, what a person knows to be false at the time they say it? I say again: what is non-trivial psychological harm and what constitutes an excuse? None of these things is actually defined; please do not tell me they are going to be defined by Ofcom—I would not like to hear that. This can lead to astonishing inconsistency in the courts and the misapplication of criminal penalties against people who are expressing views as they might well be entitled to do.

Then there is the question of the audience, because the likely audience is not just the person to whom the false statement is directed but could be anybody who subsequently encounters the message. How on earth is one going to have any control over how that message travels through the byways and highways of the online world and be able to say that one had some sense of who it was going to reach and what non-trivial psychological harm it might cause when it reached them?

We are talking about this as if this criminal matter is going to be dealt with by the courts. What makes this whole clause even more disturbing is that in the vast majority of cases, these offences will never reach the courts, because there is going to be, inevitably, an interaction with the illegal content duties in the Bill. By definition, these statements will be illegal content, and the platforms have obligations under the Bill to remove and take down illegal content when they become aware of it. So, the platform is going to have to make some sort of decision about not only the truth of the statement but whether the person knows what the statement is, that the statement is false and what their intention is. Under the existing definition of illegal content, they will be required to remove anything they reasonably believe is likely to be false and to prevent it spreading further, because the consequences of it, in terms of the harm it might do, are incalculable by them at that point.

We are placing a huge power of censorship—and mandating it—on to the platforms, which is one of the things that some of us in this Committee have been very keen to resist. Just exploring those few points, I think my noble friend really has to explain what he thinks this clause is doing, how it is operable and what its consequences are going to be for free speech and censorship. As it stands, it seems to me unworkable and dangerous.

[Lord Garnier (Con)]

Does my noble friend agree with me that our courts are constantly looking into the state of mind of individuals to see whether they are lying? They look at what they have said, what they have done and what they know. They can draw an inference based on the evidence in front of them about whether the person is dishonest. This is the daily bread and butter of court. I appreciate the points he is making but, if I may say so, he needs to dial back slightly his apoplexy. Underlying this is a case to be made in justice to protect the innocent.

[Lord Moylan (Con)]

I did not say that it would be impossible for a court to do this; I said it was likely to lead to high levels of inconsistency. We are dealing with what is likely to be very specialist cases. You can imagine this in the context of people feeling non-trivially psychologically harmed by statements about gender, climate, veganism, and so forth. These are the things where you see this happening. The idea that there is going to be consistency across the courts in dealing with these issues is, I think, very unlikely. It will indeed have a chilling effect on people being able to express views that may be controversial but are still valid in an open society.

Online Safety Bill

Lord Garnier Excerpts

Report stage
Thursday 6th July 2023 Lords Chamber

Moved by

[Lord Garnier]

2A: Clause 162, page 141, line 32, after “psychological” insert “, financial”
Member’s explanatory statement
This amendment, along with the other amendment to Clause 162 in the name of Baroness Buscombe, would widen the scope of the offence to include financial harm and harm to the subject of the false message arising from its communication to third parties.

[Lord Garnier (Con)]

My Lords, I shall speak briefly to Amendments 2A, 2B and 5A, which are in my name but perhaps more importantly in the names of my noble friends Lady Buscombe and Lord Leicester. I want to make it quite clear that this is not a contentious debate, in the sense that I had a very useful meeting with my noble friend the Minister on Monday 3 July, in which we set out to each other our respective concerns about the content of the Bill and how it does not protect the people that my noble friends and I seek to protect. My noble friend the Minister explained the practical difficulties faced in trying to introduce these provisions into this Bill. I think we probably agreed to differ. I hope I do not misinterpret what he told me the other day, but, essentially, I think the Government’s view is that an amendment along the lines that we propose might sit more suitably within the digital markets Bill. I am not entirely sure about that, but I am not going to have a fight about it this afternoon.

I will make some short points. Having listened to the debate on the Government’s Amendment 1, I suggest that our proposal that “financial” should be included in the types of damage referred to in Clause 162(1)(c)—that a person commits an offence if

“at the time of sending it, the person intended the message, or the information in it, to cause non-trivial psychological”,

we would then add in “financial”,

“or physical harm to a likely audience”—

fits in very well with Amendment 1 and the point raised by my noble friend Lady Harding on proposed new subsection (2), which says:

“To achieve that purpose, this Act (among other things) … imposes duties which, in broad terms, require providers of services … to … mitigate and manage the risks of harm … from … illegal content and activity”.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

If the defendant said that they had sent an image because they thought that consent had been obtained, the person whose consent was under question would find themselves cross-examined on it in a way that we do not want to see. We do not want that to be a barrier to people reporting this, in the same way that it is not for people who report flashing on the streets.

[Lord Garnier (Con)]

My Lords, I do not want to interfere in private grief, but the courts have powers to protect witnesses, particularly in cases where they are vulnerable or will suffer acute distress, by placing screens in the way and controlling the sorts of cross-examinations that go on. I accept the concern expressed by the noble Baroness, Lady Burt, but I think that my noble friend the Minister will be advised that there are protective measures in place already for the courts to look after people of the sort that she is worried about.

[Lord Parkinson of Whitley Bay (Con)]

There are indeed but, as my noble and learned friend’s interjection makes clear, those are still means for people to be cross-examined and give their account in court, even with those mitigations and protections. That is really the crux of the issue here.

We have already debated the risk that the approach that the noble Baroness sets out in her Amendments 5C and 7A criminalises sending messages, and people whom we would not deem to be criminal. I want to reassure her and your Lordships’ House that the intent-based offence, as drafted at Clause 170, provides the comprehensive protections for victims that we all want to see, including situations where the perpetrator claims it was “just for a joke”. The offence is committed if a perpetrator intended to cause humiliation, and that captures many supposed “joke” motives, as the perverted form of humour in this instance is often derived from the victim’s humiliation, alarm or distress.

Indeed, it was following consultation with victims’ groups and others that the Law Commission added humiliation as a form of intent to the offence to address those very concerns. Any assertions made by a defendant in this regard would not be taken at face value but would be considered and tested by the police and courts in the usual way, alongside the evidence. The Crown Prosecution Service and others are practised in prosecuting intent, and juries and magistrates may infer intention from the context of the behaviour and its foreseeable consequences.

The addition of defences, as the noble Baroness suggests in her Amendment 7A, is unfortunately still not sufficient to ensure that we are not overcriminalising here. Even with the proposed defences, sending a picture of genitalia without consent for medical reasons would still risk being considered a criminal Act and potentially compel a medical professional to justify that he or she has an adequate defence.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

The issue the noble Baroness has highlighted will protect all victims against people trying to evade the law, and I am grateful to her. We will bring forward an amendment at Third Reading.

[Lord Garnier (Con)]

My Lords, I will be incredibly brief because everything that needs to be said has been said at least twice. I am grateful to those who have taken the trouble to listen to what I had to say, and I am grateful to the Minister for his response. I beg leave to withdraw my amendment.

Amendment 2A withdrawn.