Online Safety Bill

Lord Knight of Weymouth Excerpts

Committee stage
Thursday 25th May 2023 Lords Chamber

Moved by

[Lord Knight of Weymouth]

160A: Clause 68, page 62, line 23, leave out paragraph (d) and insert—
“(d) be made publicly available, subject to appropriate redactions, on the date specified in the notice.”
Member’s explanatory statement
This amendment makes clear that Ofcom guidance under Clause 66 must outline how a platform’s terms of service would be considered “adequate and appropriate”, as required under a new Clause in the name of Lord Stevenson of Balmacara.

[Lord Knight of Weymouth (Lab)]

My Lords, as we have said many times, this is a complex Bill. As we reflect on the priorities for Report, we can be more relaxed about some of the specifics on how Ofcom may operate, thereby giving it more flexibility—the flexibility it needs to be agile in the online world—if we as a Parliament trust Ofcom. Building trust, I believe, is a triangulation. First, there is independence from government—as discussed in respect of Secretary of State powers. Secondly, we need proper scrutiny by Parliament. Earlier today I talked about my desire for there to be proper post-legislative scrutiny and a permanent Joint Committee to do that. The third leg of the stool is the transparency to assist that scrutiny.

Clause 68 contains the provisions which would require category 1, 2A and 2B services to produce an annual transparency report containing information described by Ofcom in a notice given to the service. Under these provisions, Ofcom would be able to require these services to report on, among other things: information about the incidence of illegal content and content that is harmful to children; how many users are assumed to have encountered this content by means of the service; the steps and processes for users to report this content; and the steps and processes which a provider uses for dealing with this content.

We welcome the introduction of transparency reporting in relation to illegal content and content that is harmful to children. We agree with the Government that effective transparency reporting plays a crucial role in building Ofcom’s understanding of online harms and empowering users to make a more informed choice about the services they use.

However, despite the inclusion of transparency reporting in the Bill representing a step in the right direction, we consider that these requirements could and should be strengthened to do the trust building we think is important. First, the Bill should make clear that, subject to appropriate redactions, companies will be required to make their transparency reports publicly available—to make them transparent—hence Amendment 160A.

Although it is not clear from the Bill whether companies will be required to make these reports publicly available, we consider that, in most instances, such a requirement would be appropriate. As noted, one of the stated purposes of transparency reporting is that it would enable service users to make more informed choices about their own and their children’s internet use—but they can only do so if the reports are published. Moreover, in so far as transparency reporting would facilitate public accountability, it could also act as a powerful incentive for service providers to do more to protect their users.

We also recognise that requiring companies to publish the incidences of CSEA content on their platforms, for instance, may have the effect of encouraging individuals seeking such material towards platforms on which there are high incidences of that content—that must be avoided. I recognise that simply having a high incidence of CSEA content on a platform does not necessarily mean that that platform is problematic; it could just mean that it is better at reporting it. So, as ever with the Bill, there is a balance to be struck.

Therefore, we consider that the Bill should make it explicit that, once provided to Ofcom, transparency reports are to be made publicly available, subject to redactions. To support this, Ofcom should be required to produce guidance on the publication of transparency reports and the redactions that companies should make before making reports publicly accessible. Ofcom should also retain the power to stop a company from publishing a particular transparency report if it considers that the risk of directing individuals to illegal materials outweighs the benefit of making a report public—hence Amendments 160B and 181A.

Amendments 165 and 229 are in my noble friend Lord Stevenson’s name. Amendment 165 would broaden the transparency requirements around user-to-user services’ terms of service, ensuring that information can be sought on the scope of these terms, not just their application. As I understand it, scope is important to understand, as it is significant in informing Ofcom’s regulatory approach. We are trying to guard against minimal terms of service where detail is needed for users and Ofcom.

The proposed clause in Amendment 229 probes how Ofcom will review the effectiveness of the transparency requirements in the Bill. It would require Ofcom to undertake a review of the effectiveness of transparency reports within three years and every five years thereafter, and it would give the Secretary of State powers to implement any recommendations made by the regulator. The Committee should note that we also include a requirement that a Select Committee, charged by the relevant House, must consider and report on the regulations, with an opportunity for Parliament to debate them. So we link the three corners of the triangle rather neatly there.

If we agree that transparency is an important part of building trust in Ofcom in doing this difficult and innovative regulatory job—it is always good to see the noble Lord, Lord Grade, in his place; I know he is looking forward to getting on with this—then this proposed clause is sensible. I beg to move.

[Lord Allan of Hallam (LD)]

My Lords, I am pleased that the noble Lord, Lord Knight of Weymouth, has given us an opportunity to talk about transparency reports with these amendments, which are potentially a helpful addition to the Bill. Transparency is one of the huge benefits that the legislation may bring. One of the concerns that the public have and that politicians have always had with online platforms is that they appear to be a black box—you cannot see what is going on in them.

In the entire edifice that we are constructing in the Online Safety Bill, there are huge opportunities to change that. The platforms will have to do risk assessments —there are measures in the Bill to make sure that information about these is put out—and they will have to take active steps to mitigate any risks they find. Again, we may get directions and guidance from Ofcom that will explain to the public exactly what is expected of them. The final piece of the jigsaw is the transparency reports that show the outcomes—how a platform has performed and what it has done to meet its obligations in dealing with content and behaviour on its services.

For the record, I previously worked for one of the platforms, and I would have said that I was on the pro-transparency wing of the transparency party inside the company. I believed that it was in the platform’s interest: if you do not tell people what you are doing, they will make things up about you, and what they make up will generally be worse than what you are actually doing. So there are huge advantages to the platforms from being transparent.

The noble Lord, Lord Knight, has picked up on some important points in his Amendment 160B, which talks about making sure that the transparency report is not counterproductive by giving the bad guys information that they could use to ill effect. That is a valid point; it is often debated inside the platforms. Sometimes, I argued furiously with my colleagues in the platforms about why we should disclose information. They would ask, “What about the bad guys?” Sometimes I challenged that, but other times it would have been a genuine and accurate concern. The noble Lord mentioned things such as child sexual abuse material, and we have to recognise that the bad guys are incredibly devious and creative, and if you show them anything that they can use against you to get around your systems, they will try to do that. That is a genuine and valid concern.

The sort of thing that you might put into a transparency report is, for example, whether you have banned particular organisations. I would be in favour of indicating to the public that an organisation is banned, but you can see that the potential impact of that is that all the people you are concerned about would create another organisation with a different name and then get back on to your platform. We need to be alive to those kinds of concerns.

It is also relevant to Amendment 165 and the terms of service that the more granular and detailed your terms of service are, the better they are for public information, but there are opportunities to get around them. Again, we would have that argument internally. I would say, “If we are prohibiting specific hate speech terms, tell people that, and then they won’t use them”. For me, that would be a success, as they are not using those hate speech terms anymore, but, of course, they may then find alternative hate speech terms that they can use instead. You are facing that battle all the time. That is a genuine concern that I hope we will be able to debate. I hope that Ofcom will be able to mitigate that risk by discussing with platforms what these transparency reports should look like. In a sense, we are doing a risk assessment of the transparency report process.

Amendment 229 on effectiveness is really interesting. My experience was that if you did not have a transparency report, you were under huge pressure to produce one and that once you produced one, nobody was interested. For fear of embarrassing anyone in the Committee, I would be curious to know how many noble Lords participating in this debate have read the transparency reports already produced by Meta Platforms, Google and others. If they have not read them, they should not be embarrassed, because my experience was that I would talk to regulators and politicians about something they had asked me to come in to talk about, such as hate speech or child sexual abuse material, and I learned to print off the transparency report. I would go in and say, “Well, you know what we are doing; it’s in our transparency report”. They would ask, “What transparency report?”, and I would have to show them. So, having produced a transparency report, every time we published it, we would expect there to be public interest, but little use was made of it. That is not a reason not to do them—as I said, I am very much in favour of doing them—but, on their own, they may not be effective, and Amendment 229 touches on that.

I was trying to think of a collective noun for transparency reports and, seeing as they shed light, I think it may be a “chandelier”. Where we may get the real benefit is if Ofcom can produce a chandelier of transparency reports, taking all the information it gets from the different platforms, processing it and selecting the most relevant information—the reports are often too long for people to work their way through—so that it can enable comparisons. That is really good and it is quite good for the industry that people know that platform A did this, platform B did that, and platform C did something else. They will take note of that, compare with each other and want to get into the best category. It is also critical that Ofcom puts this into user-friendly language, and Ofcom has quite a good record of producing intelligible reports. In the context of Amendment 229, a review process is good. One of the things that might come out of that, thinking ahead, would be Ofcom’s role in producing meta transparency reports, the chandelier that will shed light on what the whole sector is doing.

--- Later in debate ---

[Viscount Camrose (Con)]

I think I probably would agree, but I would welcome a chance to discuss it further.

Finally, Amendment 229 intends to probe how Ofcom will review the effectiveness of transparency requirements in the Bill. It would require Ofcom to produce reports reviewing the effectiveness of transparency reports and would give the Secretary of State powers to implement any recommendations made by the regulator. While I of course agree with the sentiment of this amendment, as I have outlined, the transparency reporting power is designed to ensure that Ofcom can continuously review the effectiveness of transparency reports and make adjustments as necessary. This is why the Bill requires Ofcom to set out in annual transparency notices what each provider should include in its reports and the format and manner in which it should be presented, rather than putting prescriptive or static requirements in the Bill. That means that Ofcom will be able to learn, year on year, what will be most effective.

Under Clause 145, Ofcom is required to produce its own annual transparency report, which must include a summary of conclusions drawn from providers’ transparency reports, along with the regulator’s view on industry best practice and other appropriate information—I hope and think that goes to some of the points raised by the noble Lord, Lord Allan of Hallam.

[Lord Knight of Weymouth (Lab)]

My Lords, just before the Minister moves on—and possibly to save me finding and reading it—can he let us know whether those annual reports by Ofcom will be laid before Parliament and whether Parliament will have a chance to debate them?

[Viscount Camrose (Con)]

I believe so, but I will have to confirm that in writing. I am sorry not to be able to give a rapid answer.

Clause 159 requires the Secretary of State to review in total the operation of the regulatory framework to ensure it is effective. In that review, Ofcom will be a statutory consultee. The review will specifically require an assessment of the effectiveness of the regulatory framework in ensuring that the systems and processes used by services provide transparency and accountability to users.

The Bill will create what we are all after, which is a new culture of transparency and accountability in the tech sector. For the reasons I have laid out, we are confident that the existing provisions are sufficiently broad and robust to provide that. As such, I hope the noble Lord feels sufficiently reassured to withdraw the amendment.

[Lord Knight of Weymouth (Lab)]

My Lords, that was a good, quick debate and an opportunity for the noble Viscount to put some things on the record, and explain some others, which is helpful. It is always good to get endorsement around what we are doing from both the noble Lord, Lord Allan, and the noble Baroness, Lady Fox. That is a great spread of opinion. I loved the sense of the challenge as to whether anyone ever reads the transparency reports whenever they are published; I imagine AI will be reading and summarising them, and making sure they are not written as gobbledygook.

On the basis of what we have heard and if we can get some reassurance that strong transparency is accompanied by strong parliamentary scrutiny, then I am happy to withdraw the amendment.

Amendment 160A withdrawn.