Online Safety Bill

Lord Russell of Liverpool Excerpts

Committee stage
Tuesday 16th May 2023 Lords Chamber

I have not yet heard from the noble Baroness, Lady Fox, on her amendments, so I reserve the right to violently agree with her later, but I simply do not understand her reasoning for scrapping super-complaints from the Bill. Over the last six days in Committee, the noble Baroness has repeatedly argued that your Lordships must be wary about putting too much power in the hands of the Government or the tech sector, yet here we have a mechanism that allows users a route to justice that does not depend on their individual wealth. Only those with deep pockets and the skin of a rhinoceros can turn to the law as individuals. A super-complaints system allows interested parties, whether from the kids sector or the Free Speech Union, to act on behalf of a group. As I hope I have made clear, this is additional to, not instead of, an individual complaints system, and I very much hoped to have the noble Baroness’s support for both.

[Lord Russell of Liverpool (CB)]

My Lords, I also put my name to Amendments 250A and 250B, but the noble Baronesses, Lady Newlove and Lady Kidron, have done such a good job that I shall be very brief.

To understand the position that I suspect the Government may put forward, I suggest one looks at Commons Hansard and the discussion of this in the seventh Committee sitting of 9 June last year. To read it is to descend into an Alice in Wonderland vortex of government contradictions. The then Digital Minister—a certain Chris Philp, who, having been so effective as Digital Minister, was promoted, poor fellow, to become a Minister in the Home Office; I do not know what he did to deserve that—in essence said that, on the one hand, this problem is absolutely vast, and we all recognise that. When responding to the various Members of the Committee who put forward the case for an independent appeals mechanism, he said that the reason we cannot have one is that the problem is too big. So we recognise that the problem is very big, but we cannot actually do anything about it, because it is too big.

I got really worried because he later did something that I would advise no Minister in the current Government ever to do in public. Basically, he said that this

“groundbreaking and world-leading legislation”—[Official Report, Commons, Online Safety Bill Committee, 9/6/22; col. 296.]

will fix this. If I ruled the world, if any Minister in the current Government said anything like that, they would immediately lose the Whip. The track record of people standing up and proudly boasting how wonderful everything is going to be, compared to the evidence of what actually happens, is not a track record of which to be particularly proud.

I witnessed, as I am sure others did, the experience of the noble Baroness, Lady Kidron, pulling together a group of bereaved parents: families who had lost their child through events brought about by the online world. A point that has stayed with me from that discussion was the noble Baroness, Lady Kidron, who was not complaining, saying at the end that there is something desperately wrong with the system where she ends up as the point person to try to help these people resolve their enormous difficulties with these huge companies. I remind noble Lords that the family of Molly Russell, aided by a very effective lawyer, took no less than five years to get Meta to actually come up with what she was looking at online. So the most effective complaints process, or ombudsman, was the fact they were able to have a very able lawyer and an exceptionally able advocate in the shape of the noble Baroness, Lady Kidron, helping in any way she could. That is completely inadequate.

I looked at the one of the platforms that currently helps individual users—parents—trying to resolve some of the complaints they have with companies. It is incredibly complicated. So relying on the platforms themselves to bring forward, under the terms of the Bill, completely detailed systems and processes to ensure that these things do not happen, or that if there is a complaint it will be followed up dutifully and quickly, does not exactly fill me with confidence, based on their previous form.

For example, as a parent or an individual, here are some of the questions you might have to ask yourself. How do I report violence or domestic abuse online? How do I deal with eating disorder content on social media? How do I know what is graphic content that does not breach terms? How do I deal with abuse online? What do I do as a UK citizen if I live outside the UK? It is a hideously complex world out there. On the one hand, bringing in regulations to ensure that the platforms do what they are meant to, and on the other hand charging Ofcom to act as the policeman to make sure that they are actually doing it, is heaping yet more responsibility on Ofcom. The noble Lord, Lord Grade, is showing enormous stamina sitting up in the corner; he is sitting where the noble Lord, Lord Young, usually sits, which is a good way of giving the Committee a good impression.

What I would argue to the Minister is that to charge Ofcom with doing too much leads us into dangerous territory. The benefit of having a proper ombudsman who deals with these sorts of complaints week in, week out, is exactly the same argument as if one was going to have a hip or a knee replacement. Would you rather have it done by a surgical team that does it once a year or one that does it several hundred times a year? I do not know about noble Lords, but I would prefer the latter. If we had an effective ombudsman service that dealt with these platforms day in, day out, they would be the most effective individuals to identify whether or not those companies were actually doing what they are meant to do in the law, because they would be dealing with them day in, day out, and would see how they were responding. They could then liaise with Ofcom in real time to tell it if some platforms were not performing as they should. I feel that that would be more effective.

The only question I have for the Minister is whether he would please agree to meet with us between now and Report to really go into this in more detail, because this is an open goal which the Government really should be doing something to try to block. It is a bit of a no-brainer.

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[The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)]

My Lords, the amendments in this group are concerned with complaints mechanisms. I turn first to Amendment 56 from the noble Lord, Lord Stevenson of Balmacara, which proposes introducing a requirement on Ofcom to produce an annual review of the effectiveness and efficiency of platforms’ complaints procedures. Were this review to find that regulated services were not complying effectively with their complaints procedure duties, the proposed new clause would provide for Ofcom to establish an ombudsman to provide a dispute resolution service in relation to complaints.

While I am of course sympathetic to the aims of this amendment, the Government remain confident that service providers are best placed to respond to individual user complaints, as they will be able to take appropriate action promptly. This could include removing content, sanctioning offending users, reversing wrongful content removal or changing their systems and processes. Accordingly, the Bill imposes a duty on regulated user-to-user and search services to establish and operate an easy-to-use, accessible and transparent complaints procedure. The complaints procedure must provide for appropriate action to be taken by the provider in relation to the complaint.

It is worth reminding ourselves that this duty is an enforceable requirement. Where a provider is failing to comply with its complaints procedure duties, Ofcom will be able to take enforcement action against the regulated service. Ofcom has a range of enforcement powers, including the power to impose significant penalties and confirmation decisions that can require the provider to take such steps as are required for compliance. In addition, the Bill includes strong super-complaints provisions that will allow for concerns about systemic issues to be raised with the regulator, which will be required to publish its response to the complaint. This process will help to ensure that Ofcom is made aware of issues that users are facing.

Separately, individuals will also be able to submit complaints to Ofcom. Given the likelihood of an overwhelming volume of complaints, as we have heard, Ofcom will not be able to investigate or arbitrate on individual cases. However, those complaints will be an essential part of Ofcom’s horizon-scanning, research, supervision and enforcement activity. They will guide Ofcom in deciding where to focus its attention. Ofcom will also have a statutory duty to conduct consumer research about users’ experiences in relation to regulated services and the handling of complaints made by users to providers of those services. Further, Ofcom can require that category 1, 2A and 2B providers set out in their annual transparency reports the measures taken to comply with their duties in relation to complaints. This will further ensure that Ofcom is aware of any issues facing users in relation to complaints processes.

At the same time, I share the desire expressed to ensure that the complaints mechanisms will be reviewed and assessed. That is why the Bill contains provisions for the Secretary of State to undertake a review of the efficacy of the entire regulatory framework. This will take place between two and five years after the Part 3 provisions come into force, which is a more appropriate interval for the efficacy of the duties around complaints procedures to be reviewed, as it will allow time for the regime to bed in and provide a sufficient evidence base to assess whether changes are needed.

Finally, I note that Amendment 56 assumes that the preferred solution following a review will be an ombudsman. There is probably not enough evidence to suggest that an ombudsman service would be effective for the online safety regime. It is unclear how an ombudsman service would function in support of the new online safety regime, because individual user complaints are likely to be complex and time-sensitive—and indeed, in many cases financial compensation would not be appropriate. So I fear that the noble Lord’s proposed new clause pre-empts the findings of a review with a solution that is resource-intensive and may be unsuitable for this sector.

Amendments 250A and 250B, tabled by my noble friend Lady Newlove, require that an independent appeals system is established and that Ofcom produces guidance to support this system. As I have set out, the Government believe that decisions on user redress and complaints are best dealt with by services. Regulated services will be required to operate an easy-to-use, accessible and transparent complaints procedure that enables users to make complaints. If services do not comply with these duties, Ofcom will be able to utilise its extensive enforcement powers to bring them into compliance.

The Government are not opposed to revisiting the approach to complaints once the regime is up and running. Indeed, the Bill provides for the review of the regulatory framework. However, it is important that the new approach, which will radically change the regulatory landscape by proactively requiring services to have effective systems and processes for complaints, has time to bed in before it is reassessed.

Turning specifically to the points made by my noble friend and by the noble Baroness, Lady Kidron, about the impartial out of court dispute resolution procedure in the VSP, the VSP regime and the Online Safety Bill are not directly comparable. The underlying principles of both regimes are of course the same, with the focus on systems regulation and protections for users, especially children. The key differences are regarding the online safety framework’s increased scope. The Bill covers a wider range of harms and introduces online safety duties on a wider range of platforms. Under the online safety regime, Ofcom will also have a more extensive suite of enforcement powers than under the UK’s VSP regime.

On user redress, the Bill goes further than the VSP regime as it will require services to offer an extensive and effective complaints process and will enable Ofcom to take stronger enforcement action where they fail to meet this requirement. That is why the Government have put the onus of the complaints procedure on the provider and set out a more robust approach which requires all in-scope, regulated user to user and search services to offer an effective complaints process that provides for appropriate action to be taken in relation to the complaint. This will be an enforceable duty and will enable Ofcom to utilise its extensive online safety enforcement powers where services are not complying with their statutory duty to provide a usable, accessible and transparent complaints procedure.

At the same time, we want to ensure that the regime can develop and respond to new challenges. That is why we have included a power for the Secretary of State to review the regulatory framework once it is up and running. This will provide the correct mechanism to assess whether complaint handling mechanisms can be further strengthened once the new regulations have had time to bed in.

The Government are confident that the Online Safety Bill represents a significant step forward in keeping users safe online for these reasons.

[Lord Russell of Liverpool (CB)]

My Lords, could I just ask a question? This Bill has been in gestation for about five to six years, during which time the scale of the problems we are talking about has increased exponentially. The Government appear to be suggesting that they will, in three to five years, evaluate whether or not their approach is working effectively.

There was a lot of discussion in this Chamber yesterday about the will of the people and whether the Government were ignoring it. I gently suggest that the very large number of people, who are having all sorts of problems or who are fearful of harm from the online world, will not find in the timescale that the Government are proposing the sort of remedy and speed of action I suspect they were hoping for. Certainly, the rhetoric the Government have used and continue to use at regular points in the Bill when they are slightly on the back foot seems to be designed to try to make the situation seem better than it is.

Will the Minister and the Bill team take on board that there are some very serious concerns that there will be a lot of lashing back at His Majesty’s Government if in three years’ time—which I fear may be the case—we still have a situation where a large body of complaints are not being dealt with? Ofcom is going to suffer from major ombudsman-like constipation trying to deal with this, and the harms will continue. I think I speak for the Committee when I say that the arguments the Minister and the government side are making really do not hold water.

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[Viscount Camrose (Con)]

Considerably more rights are provided than they have today, with the service provider. Indeed, Ofcom would not necessarily deal with individual complaints—

[Lord Russell of Liverpool (CB)]

Where would they go?

[Viscount Camrose (Con)]

They would go to the service provider in the first instance and then—