Data Protection and Digital Information Bill

Lord Harlech Excerpts

Committee stage
Monday 22nd April 2024 Grand Committee

[Baroness Stowell of Beeston (Con)]

My Lords, if the Committee will indulge me, I was a little late arriving for the introduction to this group of amendments by my noble friend Lord Lucas, but I heard most of what he said and I will speak briefly. I am quite sympathetic to the arguments about the exemption being too tightly drawn and the advantage that this is likely to give the likes of Google and Meta in the advertising ecology. As the noble Lord, Lord Clement-Jones, said, a range of different trade bodies have raised concerns about this, certainly with me.

From my perspective, the other point of interest that I want to flag is that the Communications and Digital Committee is currently doing an inquiry into the future of news. As part of the evidence that we have taken in that inquiry, one of our witnesses from the news industry raised their concerns about a lack of joined-up thinking, as they described it, within government when it comes to various different bits of legislation in which there are measures that are inadvertently detrimental to the news or publishing industry because there has been no proper understanding or recognition of how the digital news environment is now so interconnected. Something like this, on cookies, could have quite a profound effect on the news and publishing industry, which we know is reliant on advertising and is increasingly feeling the pinch because the value that it gets from digital advertising is being squeezed all the time. I just wanted to reinforce the point, for the benefit of my noble friend the Minister, that concern about this is widespread and real.

[Lord Harlech (Con)]

My Lords, it is a pleasure to make my first foray at the Dispatch Box on this Bill in what has been an interesting Committee stage thus far. I thank my noble friend Lord Lucas and the noble Baroness, Lady Jones of Whitchurch, for tabling these amendments and other noble Lords who have signed and spoken to them in support.

Many people are irritated by repetitive pop-ups that appear on websites seeking consent for cookies and other similar technologies. The current cookie rules apply to all organisations placing cookies on a person’s device. Rather than engaging with these banners, people will select “accept all” so that they can access the webpage as quickly as possible. We want users to be able to make more meaningful choices over their privacy. One way in which web users may be able to reduce the number of consent pop-up banners that they see is by using automated consent management technology.

New Regulation 6B, which Amendment 202 seeks to remove, is important as it will allow the Secretary of State to require relevant technologies to meet certain standards or specifications, thereby ensuring that individuals using this technology have effective control over their privacy when they are online. Amendment 203 seeks to amend Regulation 6B by making it clear that consents given on individual websites should override any prior choices made using automated technology. However, this could pre-empt the outcome of consultation with relevant sectors, civil society and regulators on the design of any new regulations. I fear that this amendment could have the effect of encouraging the continued use of consent banners, may not reduce the overall number of pop-up banners and could increase the risk of influencing consumers to give up more personal data than they intended.

We feel that Amendments 204 and 205 are unnecessary and duplicate existing requirements and standard practice. There is already a requirement in new Regulation 6B to consult. We have engaged extensively with stakeholders on this Bill and will continue to do so in the context of using any of the new regulation-making powers linked to these clauses. Our engagement so far has highlighted the complexity of the ecosystem and the range of impacts on different interest groups. We will continue to consider these impacts carefully when considering whether to use the new regulation-making powers. Impact assessments are generally required for all interventions of a regulatory nature that affect the private sector, civil society organisations and public services.

The Government have taken powers in the Bill to remove consent requirements for other purposes if the evidence supports it while recognising that this is a complex and technical market. The Government will therefore continue to engage fully with all players before introducing any new exemptions or deciding to set standards for the market.

The new power in Regulation 6B recognises that there is a range of different stakeholder interests that would need to be considered before making regulations. The Secretary of State must consult the Information Commissioner, the Competition and Markets Authority and any other person the Secretary of State considers appropriate. While browser-based or centralised consent options have been discussed as a possible solution, nothing in the Bill mandates them. The regulation-making power, which follows the affirmative resolution procedure, would allow the Secretary of State to set standards of design that will be key to ensuring that the regulations can move with technology.

Amendments 199 and 200 would permit the storage of information or accessing information stored on a person’s connected device, including the internet of things, to enable the organisation to generate audience measurement information. This proposed new exemption does not explain what data would need to be gathered to meet the objective of the amendment and is potentially broad in its application. For example, if it permitted activities such as tracking and profiling, it may not be appropriate to permit it without the consent of web users.

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[Lord Clement-Jones (LD)]

The Minister used the expression “when the evidence emerges”, as did the noble Viscount, Lord Camrose, in another context last week. I would have thought that these organisations know what they are about, and they have provided some pretty comprehensive evidence about the impact on their businesses. Is that not a pretty good reason for the Government to think that they might not have this set of provisions entirely right, quite apart from the other aspects of this group of amendments? If that evidence is not enough—I read out the list of organisations—the Government are more or less saying that they will not accept any evidence.

[Lord Harlech (Con)]

I thank both noble Lords for their interventions. On the point from the noble Lord, Lord Bassam, there is a trifecta of decision-making between the Secretary of State, the ICO and the organisations all working together. That is why there is a consultation requirement before using the power. On the point from the noble Lord, Lord Clement-Jones, it is a question of your point of view; we feel that we have done stakeholder engagement and believe that we have got the balance right between the needs of organisations—

[Lord Clement-Jones (LD)]

Will the Minister write and unpack exactly what the balance of opinion was? We are talking about pretty crucial stuff here. It is not always a question just of numbers; it is quite often a question of weighting the arguments. The Minister should write to us and tell us how they came to that conclusion, because the case was clearly being made during the consultation, but the Government have effectively ignored it.

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[Lord Harlech (Con)]

I thank noble Lords for those further points requesting clarification. On how we have come to this decision, I am happy to write to all noble Lords in the Committee. The noble Lord went in an interesting direction because, in the context of the rest of the Bill, so many of the amendments have been about protecting private users, but the noble Lord seems to be swaying more in favour of the advertisers here.

[Lord Clement-Jones (LD)]

My Lords, it is all about the relative importance and the weighting. Maybe that is a good illustration of where the Government are not getting their weighting correct for the beginning and this part of the Bill.

[Lord Harlech (Con)]

I take the noble Lord’s point. We are working with industry and will continue to do so. For the benefit of the Committee, we are, as I said, happy to write and explain the points of view, including those from Data: A New Direction. In response to the noble Lord, Lord Bassam, power ultimately lies with Parliament via the affirmative resolution procedure for the Secretary of State power.

I will go back to the amendments we were discussing. This regulation applies to complex and technical markets. The very reason we have taken a delegated power is so that the new exemptions can be carefully created in consultation with all affected stakeholders. As I explained, the Bill includes a requirement to consult the Information Commissioner, the Competition and Markets Authority and any other relevant stakeholders, which would include trade associations and consumers or web users.

Amendment 201 would widen the application of the “strictly necessary” exemption. Currently, it applies only to those purposes essential to provide the service requested by the user. Amendment 201 would extend this exemption so that it applies to the purposes considered essential to the website owner. We do not think this would be desirable, as it would reduce a user’s control over their privacy in a way that they might not expect.

For the reasons I have set out—and once again reaffirming the commitment to write to noble Lords on how the weighting was worked out—I hope my noble friend and the noble Baroness will not press their amendments.

[Lord Lucas (Con)]

Might I also hope for the meeting that I referred to?

[Lord Harlech (Con)]

My Lords, my noble friend makes a good point. I can promise all Members that there will be thematic meetings between Committee and Report.

[Lord Lucas (Con)]

My Lords, I am grateful for that assurance from my noble friend.

On the first amendments, clearly, we are dealing with something that is quite tricky and technical. My noble friend sees these amendments in a different light to me. It is possible that my drafting may be imperfect; that has never happened before, of course, but there is always a first time. Therefore, I seek an opportunity to look at this issue in detail. It is absolutely not my objective to engage the objections; this is something where my noble friend’s objections are valid. My amendment is not intended in any way to allow tracking or profiling. If I am wording things imperfectly or imagining something that just cannot be achieved in practice, the best way to deal with these matters would be to hammer them out in a technical discussion, not in Committee. I would happily look to an opportunity to do that between Committee and Report.

When it comes to new Regulation 6B and its ramifications, as the debate has gone on, I have found myself favouring more and more the amendment in the name of the noble Baroness, Lady Jones of Whitchurch. This is an uncontrolled bit of power that we are looking to give the Government, with some serious implications. It should not be done. We should wait until the technology is available and then do something when we can really take our time to look at the options. Again, this is something that we will have a chance to talk through.

It is really important that, in doing what seems to be convenient—as my noble friend put it, it is about getting rid of an irritation and making the whole process of giving permission much more effective; I am absolutely with him on that—we make sure that we are not letting ourselves in for some greater dangers. I personally want to make sure of that. The oldies among us—most of us, I suspect—will remember when Google said, “Don’t be evil”. I wish that it had kept to that.

For now, I beg leave to withdraw my amendment.

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[Lord Clement-Jones (LD)]

I am not going to carry on much longer. I know that that will be a grave disappointment but it makes the case, I think, that it is high time that the Government did something in this area. It is clearly hugely unpopular. We need to make sure that Amendment 208A is passed. If not now, when?

[Lord Harlech (Con)]

My Lords, I thank the noble Baroness, Lady Jones of Whitchurch, for tabling Amendment 208A and the noble Lord, Lord Leong, for moving it. This amendment would insert new Regulation 22A into the privacy and electronic communications regulations and would prohibit via email or text unsolicited approaches encouraging people to commence personal injury claims sent by, or on behalf of, claims management companies.

The Government agree that people should not receive unsolicited emails and texts from claims management companies encouraging them to make personal injury claims. I assure noble Lords that this is already unlawful under the existing regulations. Regulation 22(2) prohibits the sending of all unsolicited electronic communications direct marketing approaches—including, but not limited to, texts and emails—unless the recipient has previously consented to receiving the communication. Regulation 21A already bans live calling by claims management companies.

In the past year, the Information Commissioner has issued fines of more than £1.1 million to companies that have not adhered to the direct marketing rules. Clause 117 considerably increases the financial penalties that can be imposed for breaches of the rules, providing a further deterrent to rogue claims management and direct marketing organisations.

Amendments 211 and 215 relate to Clause 116 so I will address them together. Amendment 211 seeks to confirm that a provider of a public electronic communications service or network is not required to intercept or examine the content of any communication in order to comply with the new duty introduced by Clause 116. I assure the noble Baroness and the noble Lord that the duty is a duty to share information only. It merely requires providers to share any information that they already hold or gather through routine business activities and which may indicate suspicious unlawful direct marketing on their networks; it does not empower, authorise or compel a communications provider to intercept messages or listen to phone calls.

Should a communications provider become aware of information through its routine business activities that indicates that unlawful direct marketing activity may be taking place on its service or network, this duty simply requires it to share that information with the Information Commissioner. For example, a communications provider may receive complaints from its subscribers who have received numerous unsolicited direct marketing communications from a specific organisation. We know from the public consultation that people want action taken against nuisance calls and spam, and this duty will support that.