Online Safety Bill

Lord Moylan Excerpts

Committee stage
Thursday 27th April 2023 Lords Chamber

Moved by

[Lord Moylan]

17: Clause 9, page 7, line 30, leave out “prevent individuals from” and insert “protect individuals from harms arising due to them”
Member’s explanatory statement
This amendment, along with the other amendment to Clause 9 in the name of Lord Moylan, adds a requirement to protect individuals from harm, rather than monitoring, prior restraint and/or denial of access. Further obligations to mitigate and manage harm, including to remove unlawful content that is signalled to the service provider, are unchanged by this amendment.

[Lord Moylan (Con)]

My Lords, this is a very large and wide-ranging group of amendments. Within it, I have a number of amendments that, on their own, span three separate subjects. I propose to address these one after the other in my opening remarks, but other subjects will be brought in as the debate continues and other noble Lords speak to their own amendments.

If I split the amendments that I am speaking to into three groups, the first is Amendments 17 and 18. These relate to Clause 9, on page 7, where safety duties about illegal content are set out. The first of those amendments addresses the obligation to prevent individuals encountering priority illegal content by means of the service.

Earlier this week in Committee, I asked the Minister whether the Government understood “prevent” and “protect”, both of which they use in the legislation, to have different weight. I did not expect my noble friend to give an answer at that point, but I know that he will have reflected on it. We need clarity about this at some point, because courts will be looking at, listening to and reading what the Government say at the Dispatch Box about the weight to be given to these words. To my mind, to prevent something happening requires active measures in advance that ensure as far as reasonably and humanly possible that it does not actually happen, but one could be talking about something more reactive to protect someone from something happening.

This distinction is of great importance to internet companies—I am not talking about the big platforms—which will be placed, as I say repeatedly, under very heavy burdens by the Bill. It is possible that they simply will not be able to discharge them and will have to go out of business.

Let us take Wikipedia, which was mentioned earlier in Committee. It operates in 300 languages but employs 700 moderators globally to check what is happening. If it is required by Clause 9 to

“prevent individuals from encountering priority illegal content by means of the service”,

it will have to scrutinise what is put up on this community-driven website as or before it appears. Quite clearly, something such as Welsh Wikipedia—there is Wikipedia in Welsh—simply would not get off the ground if it had to meet that standard, because the number of people who would have to be employed to do that would be far more than the service could sustain. However, if we had something closer to the wording I suggest in my amendment, where services have to take steps to “protect” people—so they could react to something and take it down when they become aware of it—it all becomes a great deal more tolerable.

Similarly, Amendment 18 addresses subsection (3) of the same clause, where there is a

“duty to operate a service using proportionate systems and processes … to … minimise the length of time”

for which content is present. How do you know whether you are minimising the length of time? How is that to be judged? What is the standard by which that is to be measured? Would it not be a great deal better and more achievable if the wording I propose, which is that you simply are under an obligation to take it down, were inserted? That is my first group of amendments. I put that to my noble friend and say that all these amendments are probing to some extent at this stage. I would like to hear how he thinks that this can actually be operated.

My second group is quite small, because it contains only Amendment 135. Here I am grateful to the charity JUSTICE for its help in drawing attention to this issue. This amendment deals with Schedule 7, on page 202, where the priority offences are set out. Paragraph 4 of the schedule says that a priority offence includes:

“An offence under any of the following provisions of the Public Order Act 1986”.


One of those is Section 5 of that Act, “Harassment, alarm or distress”. Here I make a very different point and return to territory I have been familiar with in the past. We debated this only yesterday in Grand Committee, although I personally was unable to be there: the whole territory of hate crimes, harmful and upsetting words, and how they are to be judged and dealt with. In this case, my amendment would remove Section 5 of the Public Order Act from the list of priority offences.

If society has enough problems tolerating the police going round and telling us when we have done or said harmful and hurtful things and upbraiding us for it, is it really possible to consider—without the widest form of censorship—that it is appropriate for internet platforms to judge us, shut us down and shut down our communications on the basis of their judgment of what we should be allowed to say? We already know that there is widespread suspicion that some internet platforms are too quick to close down, for example, gender critical speech. We seem to be giving them something close to a legislative mandate to be very trigger-happy when it comes to closing down speech by saying that it engages, or could engage, Section 5 of the Public Order Act. I will come to the question of how they judge it in my third group, in a moment—but the noble Lord might be able to help me.

[Lord Allan of Hallam (LD)]

Just to reinforce the point the noble Lord, Lord Moylan, made on that, I certainly had experience of where the police became the complainants. They would request, for example, that you take down an English Defence League event, claiming that it would be likely to cause a public order problem. I have no sympathy whatever with the English Defence League, but I am very concerned about the police saying “You must remove a political demonstration” to a platform and citing the legal grounds for doing that. The noble Lord is on to a very valid point to be concerned about that.

[Lord Moylan (Con)]

I am grateful to the noble Lord. I really wonder whether the Government realise what they are walking into here. On the one hand, yesterday the Grand Committee was debating the statutory instrument putting in place new statutory guidance for the police on how to enforce, much more sensitively than in the past, non-crime hate incidents. However, on the other hand, the next day in this Chamber we are putting an obligation on a set of mostly foreign private companies to act as a police force to go around bullying us and closing us down if we say something that engages Section 5 of the Public Order Act. I think this is something the Government are going to regret, and I would very much like to hear what my noble friend has to say about that.

Finally, I come to my third group of amendments: Amendments 274, 278, 279 and 283. They are all related and on one topic. These relate to the text of the Bill on page 145, in Clause 170. Here we are discussing what judgments providers have to make when they come to decide what material to take down. Inevitably, they will have to make judgments. That is one of the unfortunate things about this Bill. A great deal of what we do in our lives is going to have to be based on judgments made by private companies, many of which are based abroad but which we are trying to legislate for.

It makes a certain sense that the law should say what they should take account of in making those judgments. But the guidance—or rather, the mandate—given to those companies by Clause 170 is, again, very hair-trigger. Clause 170(5), which I am proposing we amend, states:

“In making such judgements, the approach to be followed is whether a provider has reasonable grounds to infer that content is … of the kind in question”.


I am suggesting that “reasonable grounds to infer” should be replaced with “sufficient evidence to infer”, so that they have to be able to produce some evidence that they are justified in taking content down. The test should be higher than simply having “reasonable grounds”, which may rest on a suspicion and little evidence at all. So one of those amendments relates to strengthening that bar so that they must have real evidence before they can take censorship action.

I add only two words to subsection (6), which talks about reasonable grounds for the inference—it defines what the reasonable grounds are—that

“exist in relation to content and an offence if, following the approach in subsection (2)”

and so on. I am saying “if and only if”—in other words, I make it clear that this is the only basis on which material can be censored using the provisions in this section, so as to limit it from going more widely. The third amendment in my group is essentially consequential to that.

--- Later in debate ---

[Lord Allan of Hallam (LD)]

I am struggling a little to understand why the Minister thinks that sufficient evidence is subjective, and therefore, I assume, reasonable grounds to infer is objective. Certainly, in my lexicon, evidence is more objective than inference, which is more subjective. I was reacting to that word. I am not sure that he has fully made the case as to why his wording is better.

[Lord Moylan (Con)]

Or indeed any evidence.

[Lord Parkinson of Whitley Bay (Con)]

I take the noble Lord’s point and my noble friend’s further contribution. I will see whether I can give a clearer and more succinct description in writing to flesh that out, but that it is the reason that we have alighted on the words that we have.

The noble Lord, Lord Allan, also asked about jurisdiction. If an offence has been committed in the UK and viewed by a UK user, it can be treated as illegal content. That is set out in Clause 53(11), which says:

“For the purposes of determining whether content amounts to an offence, no account is to be taken of whether or not anything done in relation to the content takes place in any part of the United Kingdom”.


I hope that that bit, at least, is clearly set out to the noble Lord’s satisfaction. It looks like it may not be.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

If it has been committed in the UK and is viewed by a UK user, it can be treated as illegal. I will follow up on the noble Lord’s further points ahead of the next stage.

Amendment 272 explicitly provides that relevant information that is reasonably available to a provider includes information submitted by users in complaints. Providers will already need to do this when making judgments about content, as it will be both relevant and reasonably available.

My noble friend Lord Moylan returned to the question that arose on day 2 in Committee, querying the distinction between “protect” and “prevent”, and suggesting that a duty to protect would or could lead to the excessive removal of content. To be clear, the duty requires platforms to put in place proportionate systems and processes designed to prevent users encountering content. I draw my noble friend’s attention to the focus on systems and processes in that. This requires platforms to design their services to achieve the outcome of preventing users encountering such content. That could include upstream design measures, as well as content identification measures, once content appears on a service. By contrast, a duty to protect is a less stringent duty and would undermine the proactive nature of the illegal content duties for priority offences.

[Lord Moylan (Con)]

Before he moves on, is my noble friend going to give any advice to, for example, Welsh Wikipedia, as to how it will be able to continue, or are the concerns about smaller sites simply being brushed aside, as my noble friend explicates what the Bill already says?

[Lord Parkinson of Whitley Bay (Con)]

I will deal with all the points in the speech. If I have not done so by the end, and if my noble friend wants to intervene again, I would be more than happy to hear further questions, either to answer now or write to him about.

Amendments 128 to 133 and 143 to 153, in the names of the right reverend Prelate the Bishop of Derby and the noble Lord, Lord Stevenson of Balmacara, seek to ensure that priority offences relating to modern slavery and human trafficking, where they victimise children, are included in Schedule 6. These amendments also seek to require technology companies to report content which relates to modern slavery and the trafficking of children—including the criminal exploitation of children—irrespective of whether it is sexual exploitation or not. As noble Lords know, the strongest provisions in the Bill relate to children’s safety, and particularly to child sexual exploitation and abuse content. These offences are captured in Schedule 6. The Bill includes a power for Ofcom to issue notices to companies requiring them to use accredited technology or to develop new technology to identify, remove and prevent users encountering such illegal content, whether communicated publicly or privately.

These amendments would give Ofcom the ability to issue such notices for modern slavery content which affects children, even when there is no child sexual exploitation or abuse involved. That would not be appropriate for a number of reasons. The power to tackle illegal content on private communications has been restricted to the identification of content relating to child sexual exploitation and abuse because of the particular risk to children posed by content which is communicated privately. Private spaces online are commonly used by networks of criminals to share illegal images—as we have heard—videos, and tips on the commitment of these abhorrent offences. This is highly unlikely to be reported by other offenders, so it will go undetected if companies do not put in place measures to identify it. Earlier in Committee, the noble Lord, Lord Allan, suggested that those who receive it should report it, but of course, in a criminal context, a criminal recipient would not do that.

Extending this power to cover the identification of modern slavery in content which is communicated privately would be challenging to justify and could represent a disproportionate intrusion into someone’s privacy. Furthermore, modern slavery is usually identified through patterns of behaviour or by individual reporting, rather than through content alone. This reduces the impact that any proactive technology required under this power would have in tackling such content. Schedule 6 already sets out a comprehensive list of offences relating to child sexual exploitation and abuse which companies must tackle. If these offences are linked to modern slavery—for example, if a child victim of these offences has been trafficked—companies must take action. This includes reporting content which amounts to an offence under Schedule 6 to the National Crime Agency or another reporting body outside of the UK.

My noble friend Lord Moylan’s Amendment 135 seeks to remove the offence in Section 5 of the Public Order Act 1986 from the list of priority offences. His amendment would mean that platforms were not required to take proactive measures to reduce the risk of content which is threatening or abusive, and intended to cause a user harassment, alarm or distress, from appearing on their service. Instead, they would be obliged to respond only once they are made aware of the content, which would significantly reduce the impact of the Bill’s framework for tackling such threatening and abusive content. Given the severity of the harm which can be caused by that sort of content, it is right that companies tackle it. Ofcom will have to include the Public Order Act in its guidance about illegal content, as provided for in Clause 171.

Government Amendments 136A to 136C seek to strengthen the illegal content duties by adding further priority offences to Schedule 7. Amendments 136A and 136B will add human trafficking and illegal entry offences to the list of priority offences in the Bill. Crucially, this will mean that platforms will need to take proactive action against content which encourages or assists others to make dangerous, illegal crossings of the English Channel, as well as those who use social media to arrange or facilitate the travel of another person with a view to their exploitation.

The noble Lord, Lord Allan, asked whether these amendments would affect the victims of trafficking themselves. This is not about going after the victims. Amendment 136B addresses only content which seeks to help or encourage the commission of an existing immigration offence; it will have no impact on humanitarian communications. Indeed, to flesh out a bit more detail, Section 2 of the Modern Slavery Act makes it an offence to arrange or facilitate the travel of another person, including through recruitment, with a view to their exploitation. Facilitating a victim’s travel includes recruiting them. This offence largely appears online in the form of advertisements to recruit people into being exploited. Some of the steps that platforms could put in place include setting up trusted flagger programmes, signposting users to support and advice, and blocking known bad actors. Again, I point to some of the work which is already being done by social media companies to help tackle both illegal channel crossings and human trafficking.

--- Later in debate ---

My noble friend Lord Bethell anticipated later debates on age verification and pornography. If he permits, I will come back on his points then. I have noted his question for that discussion as well as the question from the noble Lord, Lord Stevenson, on financial scams and fraud, which we will have the chance to discuss in full. I am not sure if my noble friend Lord Moylan wants to ask a further question at this juncture or to accept a reassurance that I will consult the Official Report and write on any further points he raised which I have not dealt with.

[Lord Moylan (Con)]

My Lords, it is genuinely difficult to summarise such a wide-ranging debate, which was of a very high standard. Only one genuinely bright idea has emerged from the whole thing: as we go through Committee, each group of amendments should be introduced by the noble Lord, Lord Allan of Hallam, because it is only after I have heard his contribution on each occasion that I have begun to understand the full complexity of what I have been saying. I suspect I am not alone in that and that we could all benefit from hearing the noble Lord before getting to our feet. That is not meant to sound the slightest bit arch; it is absolutely genuine.

The debate expressed a very wide range of concerns. Concerns about gang grooming and recruiting were expressed on behalf of the right reverend Prelate the Bishop of Derby and my noble friend Lady Buscombe expressed concerns about trolling of country businesses. However, I think it is fair to say that most speakers focused on the following issues. The first was the definition of legality, which was so well explicated by the noble Lord, Lord Allan of Hallam. The second was the judgment bar that providers have to pass to establish whether something should be taken down. The third was the legislative mandating of private foreign companies to censor free speech rights that are so hard-won here in this country. These are the things that mainly concern us.

I was delighted that I found myself agreeing so much with what the noble Baroness, Lady Kidron, said, even though she was speaking in another voice or on behalf of another person. If her own sentiments coincide with the sentiments of the noble Viscount—

[Baroness Kidron (CB)]

I am sorry to intrude, but I must say now on the record that I was speaking on my own behalf. The complication of measuring and those particular things are terribly important to establish, so I am once again happy to agree with the noble Lord.

[Lord Moylan (Con)]

I am delighted to hear the noble Baroness say that, and it shows that that pool of common ground we share is widening every time we get to our feet. However, the pool is not particularly widening, I am afraid to say—at least in respect of myself; other noble Lords may have been greatly reassured—as regards my noble friend the Minister who, I am afraid, has not in any sense addressed the issues about free speech that I and many other noble Lords raised. On some issues we in the Committee are finding a consensus that is drifting away from the Minister. We probably need to put our heads together more closely on some of these issues with the passage of time in Committee.

My noble friend also did not say anything that satisfied me in respect of the practical operation of these obligations for smaller sites. He speaks smoothly and persuasively of risk-based proactive approaches without saying that, for a large number of sites, this legislation will mean a complete re-engineering of their business model. For example, where Wikipedia operates in a minority language, such as in Welsh Wikipedia, which is the largest Welsh language website in the world, if its model is to involve monitoring what is put out by the community and correcting it as it goes along, rather than having a model in advance that is designed to prevent things being put there in the first place, then it is very likely to close down. If that is one of the consequences of this Bill the Government will soon hear about it.

Finally, although I remain concerned about public order offences, I have to say to the Minister that if he is so concerned about the dissemination of alarm among the population under the provisions of the Public Order Act, what does he think that His Majesty’s Government were doing on Sunday at 3 pm? I beg leave to withdraw the amendment.

Amendment 17 withdrawn.