Regulating in a Digital World (Communications Committee Report)

Lord Gordon of Strathblane Excerpts

Wednesday 12th June 2019 Lords Chamber

[Lord Gordon of Strathblane (Lab)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Gilbert, and to have the first opportunity of thanking him for his chairmanship of our committee—a task he carried out with great skill, bearing in mind that the landscape we were surveying was changing as the report was being written. I also echo his thanks to the clerk of the committee, Theo Pembroke, and his team, and to our specialist adviser, Professor Andrew Murray.

I agree with the noble Lord, Lord Gilbert. The internet has already brought huge benefits to society: shopping, travelling, research and even managing one’s own health and fitness are easier. But in some ways, the awe and wonder at the things the internet could do for us that greeted its initial arrival seem to have worn off and to have been replaced by a degree of mistrust. The feeling is that somehow the internet is trying to control us; people imagine a Nineteen Eighty-Four scenario coming about. The feeling is that we are being manipulated by internet companies, that our data is being taken from us without our knowledge, misused and sold on, and that it has all got slightly out of control. Now there is a danger of legislation overreacting, and I hope the House will agree that we should adopt the same approach as the title of a seminar I intend to attend next week: How to Regulate the Internet Without Breaking It.

Undoubtedly in some countries, legislation is being proposed which would not only regulate the internet but stretch its resilience to breaking point. If we take, for example, the GDPR, as the noble Lord, Lord Gilbert, alluded to, it has not yet been fully implemented. We do not know how its interaction with the internet is going to work—we all hope it will work well.

Another reason why the gloss has come off the internet slightly is that it has made two big enemies in recent years. One is the advertising industry, which is extremely powerful and suddenly felt it was being rather defrauded by internet companies. They must make their peace with the advertising industry, and they will be set a high bar of improvement before they are let off the hook. The other body that has turned against the internet is the press, understandably. The press has largely been put out of business by the internet, so any misdemeanours by internet companies are not short of publicity in our newspapers.

As the report says in its very title, we live in a digital world, and it is important that we recognise that digital is part of that world and should not be treated separately from it. I would be interested, for example, in at some point having a debate on the Competition and Markets Authority inquiries. If it is inquiring into high street retailers, should it include Amazon? If it is inquiring into private transportation, should it include Uber? If it is inquiring into hospitality and hotels, should it include Airbnb? All of these are major players, yet are somehow classified as separate from the functions they exercise. That does not seem to make very much sense.

The approach to regulation should be the one suggested by the noble Lord, Lord Gilbert, and the committee. We need a principles-based approach which is nuanced, because we face difficult decisions. If we take, for example, the issue of anonymity, some people looking at the abuse on social media by people who remain anonymous say that the situation could be remedied by forcing everyone who makes a statement online to leave an address at which they can be traced, so that action and redress can be sought by the person who has been offended. This is a very good idea in its own right, but what effect would it have on whistleblowers who perhaps live under regimes where they would be exposed, even to loss of life? It is going to be difficult to get it right, and knee-jerk reactions are not appropriate.

Ideally, we need a blend of the stick and the carrot. The stick is the threat of legislation, and as the noble Lord, Lord Gilbert, has outlined, we have suggested a digital authority with new, real powers to enforce statutory regulation if required. Clearly preferable, if we could achieve it, would be self-regulation and co-regulation. The idea of ethical design will not work unless the companies embrace the 10 principles we have put forward and recognise that they are in their own self-interest, as well as the public interest. Self-interest should also lead them wholeheartedly to adopt the principles that we have advocated. Unless there is trust in the internet, people will not yield their data for use, and the internet business model of a great many companies will be out of the window.

In recent days, I have been in contact with the Internet Advertising Bureau, and there is further progress with its gold star system. After giving evidence to us, it emerged that the number of companies taking part has gone up from 52 to 105, and the number of people certified has risen from 12 to 91. The gold star is awarded only if they pass a reasonable standard in avoiding ad fraud, producing transparency and preserving brand positioning. If the regulation is inadequate, it is up to the advertising industry to drive a harder bargain. Likewise, in other forms of regulation, it will be up to the digital authority to say that the bar could be set a little higher. With gentle nudging—once we have got the issue of regulation accepted as a principle—where the bar is put is a matter for negotiation. If we can get 95% of what we are looking for by self-regulation, it is worth forgoing the other 5% unless it is absolutely vital; but others will differ, and there will be some issues where we need 100% support.

Turning to the powers of the digital authority, I do not want to go over what the noble Lord, Lord Gilbert, has put forward, but rather link it to the debate we have just had on Henry VIII powers, abuse of powers by government and statutory instruments. This is another area where our suggested model could be of some help. Our idea is that there should be a digital authority answerable to the highest level in government. Where that is set is up to government, but it has to be somebody who can call the shots: rather than simply asking the health service to do something, it has to be a body powerful enough to tell the health service to do something—or even the Treasury, which, as your Lordships will recognise, would be a constitutional breakthrough.

The Joint Committee of both Houses, apart from producing a quarterly report on the landscape, would have the power to say that there is an urgent problem which needs dealing with. Let us be honest, Parliament is hopelessly inadequate to deal with the internet. By the time legislation is introduced and passed, a year will have gone by with no bother, the landscape will have changed and evasive action will have been taken. We need action to be taken quickly, and if the committee of both Houses were to endorse giving the Minister the powers to deal with the problem, it would carry a lot of weight in both Houses. They would feel that it was not simply a question of giving the Minister Henry VIII powers, but that those powers had been subject to some degree of scrutiny.

If we can get this right, it could be life-changing for our country. The internet is, in its own way, a much more important invention than printing, because of its interactivity. If we can get it right, and if we can align public interest and self-interest, we will harness one of the great positive forces for good in our society.