Online Safety Bill

Lord Knight of Weymouth Excerpts

Report stage
Monday 17th July 2023 Lords Chamber

[Baroness Neville-Jones (Con)]

My Lords, I just want to reinforce what my noble friend Lord Bethell said about the amendments to which I have also put my name: Amendments 237ZA, 266AA and 272E. I was originally of the view that it was enough to give Ofcom the powers to enforce its own rulings. I have been persuaded that, pace my noble friend Lord Grade, the powers that have been given to Ofcom represent such a huge expansion that the likelihood of the regulator doing anything other than those things which it is obliged to do is rather remote. So I come to the conclusion that an obligation is the right way to put these things. I also agree with what has been said about the need to ensure that subsequent action is taken, in relation to a regulated service if it does not follow what Ofcom has set out.

I will also say a word about researchers. They are a resource that already exists. Indeed, there has been quite a lot of pushing, not least by me, on using this resource, first, to update the powers of the Computer Misuse Act, but also to enlarge our understanding of and ability to have information about the operation of online services. So this is a welcome move on the part of the Government, that they see the value of researchers in this context.

My noble friend Lord Moylan made a good point that the terms under which this function is exercised have to have regard to privacy as well as to transparency of operations. This is probably one of the reasons why we have not seen movement on this issue in the Computer Misuse Act and its updating, because it is intrinsically quite a difficult issue. But I believe that it has to be tackled, and I hope very much that the Government will not delay in bringing forward the necessary legislation that will ensure both that researchers are protected in the exercise of this function, which has been one of the issues, and that they are enabled to do something worth while. So I believe the Minister when he says that the Government may need to bring forward extra legislation on this; it is almost certainly the case. I hope very much that there will not be a great gap, so that we do not see this part of the proposals not coming into effect.

[Lord Knight of Weymouth (Lab)]

My Lords, we have had an important debate on a range of amendments to the Bill. There are some very important and good ones, to which I would say: “Better late than never”. I probably would not say that to Amendment 247A; I would maybe say “better never”, but we will come on to that. It is interesting that some of this has come to light following the debate on and scrutiny of the Digital Markets, Competition and Consumers Bill in another place. That might reinforce the need for post-legislative review of how this Bill, the competition Bill and the data Bill are working together in practice. Maybe we will need another Joint Committee, which will please the noble Lord, Lord Clement-Jones, no end.

There are many government amendments. The terms of service and takedown policy ones have been signed by my noble friend Lord Stevenson, and we support them. There are amendments on requiring information on algorithms in transparency reports; requiring search to put into transparency reports; how policies on illegal content and content that is harmful for children were arrived at; information about search algorithms; and physical access in an audit to view the operations of algorithms and other systems. Like the noble Baroness, Lady Kidron, I very much welcome, in this section anyway, that focus on systems, algorithms and process rather than solely on content.

However, Amendment 247A is problematic in respect of the trigger words, as the noble Lord, Lord Allan, referred to, of remote access and requiring a demonstration gathering real-time data. That raises a number of, as he said, non-trivial questions. I shall relay what some service providers have been saying to me. The Bill already provides Ofcom with equivalent powers under Schedule 12—such as rights of entry and inspection and extensive auditing powers—that could require them to operate any equipment or algorithms to produce information for Ofcom and/or allow Ofcom to observe the functioning of the regulated service. Crucially, safeguards are built into the provisions in Schedule 12 to ensure that Ofcom exercises them only in circumstances where the service provider is thought to be in breach of its duties and/or under a warrant, which has to have judicial approval, yet there appear to be no equivalent safeguards in relation to this power. I wonder whether, as it has come relatively late, that is an oversight that the Minister might want to address at Third Reading.

The policy intent, as I understand it, is to give Ofcom remote access to algorithms to ensure that service providers located out of the jurisdiction are not out of scope of Ofcom’s powers. Could that have been achieved by small drafting amendments to Schedule 12? In that case, the whole set of safeguards that we are concerned about would be in place because, so to speak, they would be in the right place. As drafted, the amendment appears to be an extension of Ofcom’s information-gathering powers that can be exercised as a first step against a service provider or access facility without any evidence that the service is in breach of its obligations or that any kind of enforcement action is necessary, which would be disproportionate and oppressive.

Given the weight of industry concern about the proportionality of these powers and their late addition, I urge the Minister to look at the addition of further safeguards around the use of these powers in the Bill and further clarification on the scope of the amendment as a power of escalation, including that it should be exercised as a measure of last resort, and only in circumstances where a service provider has not complied with its duty under the Bill or where the service provider has refused to comply with a prior information notice.

Amendment 247B is welcome because it gives the Minister the opportunity to tell us now that he wants to reflect on all this before Third Reading, work with us and, if necessary, come back with a tightening of the language and a resolution of these issues. I know his motivation is not to cause a problem late on in the Bill but he has a problem, and if he could reflect on it and come back at Third Reading then that would be helpful.

I welcome the amendments tabled by the noble Lord, Lord Bethell, on researcher access. This is another area where he has gone to great efforts to engage across the House with concerned parties, and we are grateful to him for doing so. Independent research is vital for us to understand how this new regime that we are creating is working. As he says, it is a UK strength, and we should play to that strength and not let it slip away inadvertently. We will not get the regime right first time, and we should not trust the platforms to tell us. We need access to independent researchers, and the amendments strike a good balance.

We look forward to the Minister deploying his listening ear, particularly to what the noble Baroness, Lady Harding, had to say on backstop powers. When he said in his opening speech that he would reflect, is he keeping open the option of reflecting and coming back at Third Reading, or is he reflecting only on the possibility of coming back in other legislation?

The noble Baroness, Lady Fraser, raised an important issue for the UK regulator, ensuring that it is listening to potential differences in public opinion in the four nations of our union and, similarly, analysing transparency reports. As she says, this is not about reserved matters but about respecting the individual nations and listening to their different voices. It may well be written into the work of Ofcom by design but we cannot assume that. We look forward to the Minister’s response, including on the questions from my noble friend on the consent process for the devolved Administrations to add offences to the regime.

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[Lord Parkinson of Whitley Bay (Con)]

A provider would have a right to bring a legal challenge against Ofcom if it considered that a particular exercise of the remote access power was unlawful. I am sure that would be looked at swiftly, but I will write to the noble Lord on the anticipated timelines while that judicial review was pending. Given the serious nature of the issues under consideration, I am sure that would be looked at swiftly. I will write further on that.

[Lord Knight of Weymouth (Lab)]

And on Schedule 12?

[Lord Parkinson of Whitley Bay (Con)]

I will write on Schedule 12 as well.

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[Lord Knight of Weymouth (Lab)]

I am grateful to the Minister for giving way so quickly. I think the House is asking him to indicate now that he will go away and look at this issue, perhaps with some of us, and that, if necessary, he would be willing to look at coming back with something at Third Reading. From my understanding of the Companion, I think he needs to say words to that effect to allow him to do so, if that is what he subsequently wants to do at Third Reading.

[Lord Parkinson of Whitley Bay (Con)]

I am very happy to discuss this further with noble Lords, but I will reserve the right, pending that discussion, to decide whether we need to return to this at Third Reading.

Amendments 270 and 272, tabled by my noble friend Lady Fraser of Craigmaddie, to whom I am very grateful for her careful scrutiny of the devolved aspects of the Bill, seek to require Ofcom to include separate analyses of users’ online experiences in England, Wales, Scotland and Northern Ireland in the research about users’ experiences of regulated services and in Ofcom’s transparency reports. While I am sympathetic to her intention—we have corresponded on it, for which I am grateful—it is important that Ofcom has and retains the discretion to prioritise information requests that will best shed light on the experience of users across the UK.

My noble friend and other noble Lords should be reassured that Ofcom has a strong track record of using this discretion to produce data which are representative of people across the whole United Kingdom. Ofcom is committed to reflecting the online experiences of users across the UK and intends, wherever possible, to publish data at a national level. When conducting research, Ofcom seeks to gather views from a representative sample of the United Kingdom and seeks to set quotas that ensure an analysable sample within each of the home nations.

It is also worth noting the provisions in the Communications Act 2003 that require Ofcom to operate offices in each of the nations of the UK, to maintain advisory committees for each, and to ensure their representation on its various boards and panels—and, indeed, on the point raised by the noble Baroness, Lady Kidron, to capture the experiences of children and users of all ages. While we must give Ofcom the discretion it needs to ensure that the framework is flexible and remains future-proofed, I hope that I have reassured my noble friend that her point will indeed be captured, reported on and be able to be scrutinised, not just in this House but across the UK.

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[Lord Knight of Weymouth (Lab)]

Before the Minister sits down—he has been extremely generous in taking interventions—I want to put on record my understanding of his slightly ambiguous response to Amendment 247A, so that he can correct it if I have got it wrong. My understanding is that he has agreed to go away and reflect on the amendment and that he will have discussions with us about it. Only if he then believes that it is helpful to bring forward an amendment at Third Reading will he do so.

[Lord Parkinson of Whitley Bay (Con)]

Yes, but I do not want to raise the hopes of the noble Lord or others, with whom I look forward to discussing this matter. I must manage their expectations about whether we will bring anything forward. With that, I beg to move.

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[Lord Knight of Weymouth (Lab)]

My Lords, the Government have moved on this issue, and I very much welcome that. I am grateful to the Minister for listening and for the fact that we now have Section 11 of the Communications Act being brought into the digital age through the Government’s Amendments 274B and 274C. The public can now expect to be informed and educated about content-related harms, reliability and accuracy; technology companies will have to play their part; and Ofcom will have to regularly report on progress, and will commission and partner with others to fulfil those duties. That is great progress.

The importance of this was underscored at a meeting of the United Nations Human Rights Council just two weeks. Nada Al-Nashif, the UN Deputy High Commissioner for Human Rights in an opening statement said that media and digital literacy empowered individuals and

“should be considered an integral part of education efforts”.

Tawfik Jelassi, the assistant director-general of UNESCO, in a statement attached to that meeting, said that

“media and information literacy was essential for individuals to exercise their right to freedom of opinion and expression”—

I put that in to please the noble Baroness, Lady Fox—and

“enabled access to diverse information, cultivated critical thinking, facilitated active engagement in public discourse, combatted misinformation, and safeguarded privacy and security, while respecting the rights of others”.

If only the noble Lord, Lord Moylan, was in his place to hear me use the word privacy. He continued:

“Together, the international community could ensure that media and information literacy became an integral part of everyone’s lives, empowering all to think critically, promote digital well-being, and foster a more inclusive and responsible global digital community”.


I thought those were great words, summarising why we needed to do this.

I am grateful to Members on all sides of the House for the work that they have done on media literacy. Part of repeating those remarks was that this is so much more about empowerment than it is about loading safety on to individuals, as the noble Baroness, Lady Kidron, rightly said in her comments.

Nevertheless, we want the Minister to reflect on a couple of tweaks. Amendment 269C in my name is around an advisory committee being set up within six months and in its first report assessing the need for a code on misinformation. I have a concern that, as the regime that we are putting in place with this Bill comes into place and causes some of the harmful content that people find engaging to be suppressed, the algorithms will go to something else that is engaging, and that something else is likely to be misinformation and disinformation. I have a fear that that will become a growing problem that the regulator will need to be able to address, which is why it should be looking at this early.

Incidentally, that is why the regulator should also look at provenance, as in Amendment 269AA from the noble Lord, Lord Clement-Jones. It was tempting in listening to him to see whether there was an AI tool that could trawl across all the comments that he has made during the deliberations on this Bill to see whether he has quoted the whole of the joint report—but that is a distraction.

My Amendment 269D goes to the need for media literacy on systems, processes and business models, not just on content. Time and again, we have emphasised the need for this Bill to be as much about systems as content. There are contexts where individual, relatively benign pieces of content can magnify if part of a torrent that then creates harm. The Mental Health Foundation has written to many of us to make this point. In the same way that the noble Baroness, Lady Bull, asked about ensuring that those with disability have their own authentic voice heard as these media literacy responsibilities are played out, so the Mental Health Foundation wanted the same kind of involvement from young people; I agree with both. Please can we have some reassurance that this will be very much part of the literacy duties on Ofcom and the obligations it places on service providers?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful to noble Lords for their comments, and for the recognition from the noble Lord, Lord Knight, of the changes that we have made. I am particularly grateful to him for having raised media literacy throughout our scrutiny of this Bill.

His Amendments 269C and 269D seek to set a date by which the establishment of the advisory committee on misinformation and disinformation must take place and to set requirements for its first report. Ofcom recognises the valuable role that the committee will play in providing advice in relation to its duties on misinformation and disinformation, and has assured us that it will aim to establish the committee as soon as is reasonably possible, in recognition of the threats posed by misinformation and disinformation online.

Given the valuable role of the advisory committee, Ofcom has stressed how crucial it will be to have appropriate time to appoint the best possible committee. Seeking to prescribe a timeframe for its implementation risks impeding Ofcom’s ability to run the thorough and transparent recruitment process that I am sure all noble Lords want and to appoint the most appropriate and expert members. It would also not be appropriate for the Bill to be overly prescriptive on the role of the committee, including with regard to its first report, in order for it to maintain the requisite independence and flexibility to give us the advice that we want.

Amendment 269AA from the noble Lord, Lord Clement-Jones, seeks to add advice on content provenance to the duties of the advisory committee. The new media literacy amendments, which update Ofcom’s media literacy duties, already include a requirement for Ofcom to take steps to help users establish the reliability, accuracy and authenticity of content found on regulated services. Ofcom will have duties and mechanisms to be able to advise platforms on how they can help users to understand whether content is authentic; for example, by promoting tools that assist them to establish the provenance of content, where appropriate. The new media literacy duties will require Ofcom to take tangible steps to prioritise the public’s awareness of and resilience to misinformation and disinformation online. That may include enabling users to establish the reliability, accuracy and authenticity of content, but the new duties will not remove content online; I am happy to reassure the noble Baroness, Lady Fox, on that.

The advisory committee is already required under Clause 141(4)(c) to advise Ofcom on its exercise of its media literacy functions, including its new duties relating to content authenticity. The Bill does not stipulate what tools service providers should use to fulfil their duties, but Ofcom will have the ability to recommend in its codes of practice that companies use tools such as provenance technologies to identify manipulated media which constitute illegal content or content that is harmful to children, where appropriate. Ofcom is also required to take steps to encourage the development and use of technologies that provide users with further context about content that they encounter online. That could include technologies that support users to establish content provenance. I am happy to reassure the noble Lord, Lord Clement-Jones, that the advisory committee will already be required to advise on the issues that he has raised in his amendment.

On media literacy more broadly, Ofcom retains its overall statutory duty to promote media literacy, which remains broad and non-prescriptive. The new duties in this Bill, however, are focused specifically on harm; that is because the of nature of the Bill, which seeks to make the UK the safest place in the world to be online and is necessarily focused on tackling harms. To ensure that Ofcom succeeds in the delivery of these new specific duties with regard to regulated services, it is necessary that the regulator has a clearly defined scope. Broadening the duties would risk overburdening Ofcom by making its priorities less clear.

The noble Baroness, Lady Bull—who has been translated to the Woolsack while we have been debating this group—raised media literacy for more vulnerable users. Under Ofcom’s existing media literacy programme, it is already delivering initiatives to support a range of users, including those who are more vulnerable online, such as people with special educational needs and people with disabilities. I am happy to reassure her that, in delivering this work, Ofcom is already working not just with expert groups including Mencap but with people with direct personal experiences of living with disabilities.

The noble Lord, Lord Clement-Jones, raised Ofsted. Effective regulatory co-ordination is essential for addressing the crosscutting opportunities and challenges posed by digital technologies and services. Ofsted will continue to engage with Ofcom through its existing mechanisms, including engagement led by its independent policy team and those held with Ofcom’s online safety policy director. In addition to that, Ofsted is considering mechanisms through which it can work more closely with Ofcom where appropriate. These include sharing insights from inspections in an anonymised form, which could entail reviews of its inspection bases and focus groups with inspectors, on areas of particular concern to Ofcom. Ofsted is committed to working with Ofcom’s policy teams to work these plans up in more detail.

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[Lord Clement-Jones (LD)]

My Lords, I add my congratulations to the noble Baroness, Lady Harding, on her tenacity, and to the Minister on his flexibility. I believe that where we have reached is pretty much the right balance. There are the questions that the noble Baroness, Lady Harding, and others have asked of the Minister, and I hope he will answer those, but this is a game-changer, quite frankly. Rightly, the noble Baroness has paid tribute to the companies which have put their head above the parapet. That was not that easy for them to do when you consider that those are the platforms they have to depend on for their services to reach the public.

Unlike the research report, they have reserved powers that the Secretary of State can use if the report is positive, which I hope it will be. I believe this could be a turning point. The digital markets and consumers Bill is coming down the track this autumn and that is going to give greater powers to make sure that the app stores can be tackled—after all, there are only two of them and they are an oligopoly. They are the essence of big tech, and they need to function in a much more competitive way.

The noble Baroness talked about timing, and it needs to be digital timing, not analogue. Four years does seem a heck of a long time. I hope the Minister will address that.

Then there is the really important aspect of harmful content. In the last group, the Minister reassured us about systems and processes and the illegality threshold. Throughout, he has tried to reassure us that this is all about systems and processes and not so much about content. However, every time we look, we see that content is there almost by default, unless the subject is raised. We do not yet have a Bill that is actually fit for purpose in that sense. I hope the Minister will use his summer break wisely and read through the Bill to make sure that it meets its purpose, and then come back at Third Reading with a whole bunch of amendments that add functionalities. How about that for a suggestion? It is said in the spirit of good will and summer friendship.

The noble Baroness raised a point about transparency when it comes to Ofcom publishing its review. I hope the Minister can give that assurance as well.

The noble Baroness, Lady Kidron, asked about the definition of app store. That is the gatekeeper function, and we need to be sure that that is what we are talking about.

I end by congratulating once again the noble Baroness and the Minister on where we have got to so far.

[Lord Knight of Weymouth (Lab)]

My Lords, I will start with the final point of the noble Lord, Lord Clement-Jones. I remind him that, beyond the world of the smartphone, there is a small company called Microsoft that also has a store for software—it is not just Google and Apple.

Principally, I say well done to the noble Baroness, Lady Harding, in deploying all of her “winsome” qualities to corral those of us who have been behind her on this and then persuade the Minister of the merits of her arguments. She also managed to persuade the noble Lord, Lord Allan of Misery Guts, that this was a good idea. The sequence of research, report, regulation and regulate is a good one, and as the noble Lord, Lord Clement-Jones, reminded us it is being deployed elsewhere in the Bill. I agree with the noble Baroness about the timing: I much prefer two years to four years. I hope that at least Ofcom would have the power to accelerate this if it wanted to do so.

I was reminded of the importance of this in an article I read in the Guardian last week, headed:

“More than 850 people referred to clinic for video game addicts”.


This was in reference to the NHS-funded clinic, the National Centre for Gaming Disorders. A third of gamers receiving treatment there were spending money on loot boxes in games such as “Fortnite”, “FIFA”, “Minecraft”, “Call of Duty” and “Roblox”—all games routinely accessed by children. Over a quarter of those being treated by the centre were children.