Online Safety Bill

Lord Stevenson of Balmacara Excerpts

Committee stage
Wednesday 19th April 2023 Lords Chamber

Moved by

[Lord Stevenson of Balmacara]

1: After Clause 1, insert the following new Clause—
“Purposes of Act
(1) This Act has the following purposes—(a) to secure that regulated internet services comply with UK law and do not endanger public health or national security,(b) to provide a higher level of protection for children than for adults in respect of regulated internet services, (c) to identify and mitigate the risk of reasonably foreseeable harm arising from the operation and design of regulated internet services,(d) to recognise and respond to the disproportionate level of harms experienced in relation to regulated internet services by people on the basis of one or more protected characteristic,(e) to apply the overarching principle that regulated internet services should be safe by design,(f) to safeguard freedom of expression within the law and privacy in relation to regulated internet services, and(g) to secure that regulated internet services operate with transparency and accountability in respect of online safety.(2) The Secretary of State and OFCOM must have regard to the need to fulfil these purposes in exercising functions under this Act.”Member’s explanatory statement
This new Clause would implement a recommendation of the Joint Committee which carried out pre-legislative scrutiny of the Bill, setting out a range of purposes for the legislation and making clear that both the Secretary of State and OFCOM must have regard to those purposes when exercising their statutory functions.

[Lord Stevenson of Balmacara (Lab)]

I must say I am quite relieved that so many noble Lords have stayed; I thought that a single group with a single amendment on a sunny afternoon might have been enough to drive most noble Lords away. I take it as a thoroughly good- going sign that this will be a useful debate for us to have in Committee. I am privileged, and it is a great honour, to open this Committee stage with Amendment 1— at last.

Amendment 1 is in my name and those of the noble Baroness, Lady Kidron, and the noble Lords, Lord Clement-Jones and Lord Gilbert of Panteg. The noble Lord, Lord Gilbert, has let me know that he would have liked to have been present today and had intended to speak but, unfortunately, he has a hospital appointment. As noble Lords will be aware, he was recently a distinguished chair of your Lordships’ Communications and Digital Committee and would, I think, have had a lot to say about some of the issues that we are going to discuss this afternoon. I had the pleasure of working with him there, and he has kindly agreed that I can mention a couple of the points that he would have liked to make had he been present; I will be delighted to do so.

I am grateful to the noble Baroness and noble Lords for signing this amendment; that highlights the all-party support for ensuring that the Bill will achieve the high hopes that we all have for it. It also points to the fact that all the signatories were members of the Joint Committee of both Houses which undertook comprehensive pre-legislative scrutiny of the Bill 18 months ago—a process that I thoroughly endorse and count as one of the highlights of my time in your Lordships’ House.

I observe in passing that this amendment, based as it is on a recommendation from that Joint Committee, represents one of the few recommendations not yet implemented in the Bill before us today—just saying, Minister. I got that phrase from my kids; I am not quite sure what it means but they use it a lot, so I think it must have some commonality.

This amendment is intended to be declaratory, although it is also what the Public Bill Office—it has done a great job for us, we should all say—says is purposive. I had to look that one up, I confess; I discovered that it means “having or tending to fulfil a conscious purpose or design”. So this is a purposive amendment—indeed, it does what it says on the tin.

As the noble Lord, Lord Gilbert, would have said had he been present, the Bill is very difficult to understand, in part because of its innate complexity and in part because it has been revised so often. A simple statement of its purpose will help us all. I agree.

I stress at the outset that the amendment on its own does not seek to add anything to the considerable detail already in the Bill. However, it does five important things. It says up front what the Government are trying to achieve with this legislation and highlights what those companies within the scope of the Bill will need to bear in mind when they prepare for the new regime. It makes it clear that the new regime is centred on ensuring that the duties of care are placed on the companies that are in scope

“to identify and mitigate the risk of reasonably foreseeable harm arising from the operation and design of”

their services. It calls for “transparency and accountability” from all concerned in respect of online safety.

Had he been present, the noble Lord, Lord Gilbert, would have added that the amendment also sets out a few important principles that Ministers claim are fundamental to the way in which the Bill works but are absent from the detailed provisions when one comes to read them—such as, for example, that this Bill is about systems, not content. We will have to keep reminding ourselves of those words as we go through the Bill: it is about the systems that deliver the content but not the content itself.

Finally, this amendment would send a clear message about the trust that we in Parliament are placing in our independent regulator, Ofcom. That is a very important point. The amendment leads with a requirement that regulated services comply with UK law and do not endanger public health or national security. National security and public health are of course topical issues, but even if we were not in the midst of a storm about USA national security leaks shared on a Minecraft Discord server, which is certainly a user-to-user service that is widely accessed in the United Kingdom, it is probably wise to stress early on how vital it is for leaks of this nature to be at the forefront of regulated companies’ approach to the Bill. Today’s warnings by a Cabinet Minister and former Secretary of State at DCMS about cybersecurity affecting our national infrastructure are relevant here—likewise for public health.

I will not go through the amendment line by line. I am sure that others will want to comment on how it is laid out, the order of it and other matters, which are relevant but do not capture what the amendment is trying to do. However, I will focus on one: the reference to regulated companies having to have regard to reasonably foreseeable harm, as outlined in proposed new subsection (1)(c). I regret that the term “reasonably foreseeable harms” is absent from the Bill, although of course it featured heavily in the preceding White Paper when Sir Jeremy Wright was Secretary of State. The dropping of the “legal but harmful” category raises the question of how Ofcom will future-proof the system. Now that a wide-ranging risk assessment is no longer required by Ofcom, it will be hard to see what harms are coming down the track that might harm children in the future when applied to them or indeed hobble the regime by undermining the ability to look forward with the full resources of Ofcom and the companies working in concert. There are amendments on this issue which we will come to later, including one tabled by the right reverend Prelate the Bishop of Oxford that may test this issue.

The Government confirmed in a Written Answer to me of 8 February that AI products in a user-to-user or search engine service would be covered by the Bill, but the sudden recent explosion of AI products is a very good example of why a more general sense of foreseeability of harms may be required, rather than simply relying, as I think we will have to, on a list of things that we currently know about.

Our Joint Committee report made clear that the inclusion of this overarching objectives amendment would help all of us to ensure that the Online Safety Bill will be easy to understand, not just for service providers but for the public. Its inclusion would mean that we would be able to get into the detail of the Bill with a much better understanding of what the Government are seeking. I see the flow, which the committee was very clear about—having clear objectives that lead into precise duties on the regulated providers, robust powers for the regulator to act when the platforms fail to meet those legal and regulatory requirements, and a continuing role for Parliament, which is something that we will come to in future debates.

The internet is a wonderful invention. The major online services have become central to how people around the world access news and information, do business, play games, and keep in touch with family and friends, and the internet is free to use. But is it free? These services are highly profitable businesses. Where does that money come from? It is a commercial model based on selling targeted advertising. User data—our data—is collected and used to train algorithms to maximise engagement and users’ attention. The length of time and the frequency with which users engage on the platforms increase their value. More spent online means that more advertising reaches users, which leads to more revenue for the companies. It is a vicious circle.

However, we are where we are. Actively seeking to increase engagement through personalisation has the power to create more harmful user experiences for vulnerable people and children, who are more likely to see content which will increase their vulnerabilities or do them harm. The more that people interact with conspiracy theories, for example, the more of them they will see. The grouping together of users with similar interests can create environments which normalise hate speech and extremism. Design features that favour the spread of information over safety facilitate the targeting and amplification of abuse, as we have seen.

There is no doubt that this Online Safety Bill is a key step forward for our citizens and consumers. I have made it absolutely clear that I support the Government in their Bill and that we will do what we can to make sure that it reaches the statute book as quickly as possible. It is also important to remember that it is showing other democratic societies that want to bring accountability and responsibility to the internet how it can be done, and I believe that this Bill will do it very well. However, it will only be effective if online services are held accountable for the design and operation of their systems by the regulations introduced by this Bill—and of course its successors, because this is the first of a number of Bills which we know we will be seeing in this area. There are very important points here about how we approach this, the need to maintain the will of Parliament throughout these areas, and the appointment of an independent regulator rather than those who happen to reside in Silicon Valley.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)]

My Lords, let me start by saying how saying how pleased I, too, am that we are now in Committee. I thank all noble Lords for giving up their time to attend the technical briefings that officials in my department and I have held since Second Reading and for the collaborative and constructive nature of their contributions in those discussions.

In particular, not least because today is his birthday, I pay tribute to the noble Lord, Lord Stevenson of Balmacara, for his tireless work on the Bill—from his involvement in its pre-legislative scrutiny to his recall to the Front Bench in order to see the job through. We are grateful for his diligence and, if I may say so, the constructive and collaborative way in which he has gone about it. He was right to pay tribute both to my noble friend Lord Gilbert of Panteg, who chaired the Joint Committee, and to the committee’s other members, including all the other signatories to this amendment. The Bill is a better one for their work, and I repeat my thanks to them for it. In that spirit, I am grateful to the noble Lord for bringing forward this philosophical opening amendment. As noble Lords have said, it is a helpful place for us to start and refocus our thoughts as we begin our line-by-line scrutiny of this Bill.

Although I agree with the noble Lord’s broad description of his amendment’s objectives, I am happy to respond to the challenge that lies behind it and put the objectives of this important legislation clearly on the record at the outset of our scrutiny. The Online Safety Bill seeks to bring about a significant change in online safety. The main purposes of the Bill are: to give the highest levels of protection to children; to protect users of all ages from being exposed to illegal content; to ensure that companies’ approach focuses on proactive risk management and safety by design; to protect people who face disproportionate harm online including, for instance, because of their sex or their ethnicity or because they are disabled; to maintain robust protections for freedom of expression and privacy; and to ensure that services are transparent and accountable.

The Bill will require companies to take stringent measures to tackle illegal content and protect children, with the highest protections in the Bill devoted to protecting children; as the noble Baroness, Lady Benjamin, my noble friend Lord Cormack and others have again reminded us today, that is paramount. Children’s safety is prioritised throughout this Bill. Not only will children be protected from illegal content through its illegal content duties but its child safety duties add an additional layer of protection so that children are protected from harmful or inappropriate content such as grooming, pornography and bullying. I look forward to contributions from the noble Baroness, Lady Kidron, and others who will, I know, make sure that our debates are properly focused on that.

Through their duties of care, all platforms will be required proactively to identify and manage risk factors associated with their services in order to ensure both that users do not encounter illegal content and that children are protected from harmful content. To achieve this, they will need to design their services to reduce the risk of harmful content or activity occurring and take swift action if it does.

Regulated services will need to prioritise responding to online content and activity that present the highest risk of harm to users, including where this is linked to something classified as a protected characteristic under the terms of the Equality Act 2010. This will ensure that platforms protect users who are disproportionately affected by online abuse—for example, women and girls. When undertaking child safety and illegal content risk assessments, providers must consider whether certain people face a greater risk of harm online and ensure that those risks are addressed and mitigated.

The Bill will place duties relating to freedom of expression and privacy on both Ofcom and all in-scope companies. Those companies will have to consider and implement safeguards for freedom of expression when fulfilling their duties. Ofcom will need to carry out its new duties in a way that protects freedom of expression. The largest services will also have specific duties to protect democratic and journalistic content.

Ensuring that services are transparent about the risks on their services and the actions they are taking to address them is integral to this Bill. User-to-user services must set out in their terms of service how they are complying with their illegal and child safety duties. Search services must do the same in public statements. In addition, government amendments that we tabled yesterday will require the biggest platforms to publish summaries of their illegal and their child safety risk assessments, increasing transparency and accountability, and Ofcom will have a power to require information from companies to assess their compliance with providers’ duties.

Finally, the Bill will also increase transparency and accountability relating to platforms with the greatest influence over public discourse. They will be required to ensure that their terms of service are clear and properly enforced. Users will be able to hold platforms accountable if they fail to enforce those terms.

The noble Baroness, Lady Kidron, asked me to say which of the proposed new paragraphs (a) to (g), to be inserted by Amendment 1, are not the objectives of this Bill. Paragraph (a) sets out that the Bill must ensure that services

“do not endanger public health or national security”.

The Bill will certainly have a positive impact on national security, and a core objective of the Bill is to ensure that platforms are not used to facilitate terrorism. Ofcom will issue a stand-alone code on terrorism, setting out how companies can reduce the risk of their services being used to facilitate terrorist offences, and remove such content swiftly if it appears. Companies will also need to tackle the new foreign interference offence as a priority offence. This will ensure that the Bill captures state-sponsored disinformation, which is of most concern—that is, attempts by foreign state actors to manipulate information to interfere in our society and undermine our democratic, political and legal processes.

The Bill will also have a positive impact on public health but I must respectfully say that that is not a primary objective of the legislation. In circumstances where there is a significant threat to public health, the Bill already provides powers for the Secretary of State both to require Ofcom to prioritise specified objectives when carrying out its media literacy activity and to require companies to report on the action they are taking to address the threat. Although the Bill may lead to additional improvements—I am sure that we all want to see them—for instance, by increasing transparency about platforms’ terms of service relating to public health issues, making this a primary objective on a par with the others mentioned in the noble Lord’s amendment risks making the Bill much broader and more unmanageable. It is also extremely challenging to prohibit such content, where it is viewed by adults, without inadvertently capturing useful health advice or legitimate debate and undermining the fundamental objective of protecting freedom of expression online—a point to which I am sure we will return.

The noble Lord’s amendment therefore reiterates many objectives that are interwoven throughout the legislation. I am happy to say again on the record that I agree with the general aims it proposes, but I must say that accepting it would be more difficult than the noble Lord and others who have spoken to it have set out. Accepting this amendment, or one like it, would create legal uncertainty. I have discussed with the officials sitting in the Box—the noble Baroness, Lady Chakrabarti, rightly paid tribute to them—the ways in which such a purposive statement, as the noble Lord suggests, could be made; we discussed it between Second Reading and now.

I appreciate the care and thought with which the noble Lord has gone about this—mindful of international good practice in legislation and through discussion with the Public Bill Office and others, to whom he rightly paid tribute—but any deviation from the substantive provisions of the Bill and the injection of new terminology risk creating uncertainty about the proper interpretation and application of those provisions. We have heard that again today; for example, the noble Baroness, Lady Fox, said that she was not clear what the meaning of certain words may be while my noble friend Lady Stowell made a plea for simplicity in legislation. The noble Lord, Lord Griffiths, also gave an eloquent exposition of the lexicographical befuddlement that can ensue when new words are added. All pointed to some confusion; indeed, there have been areas of disagreement even in what I am sure the noble Lord, Lord Stevenson, thinks was a very consensual summary of the purposes of the Bill.

That legal uncertainty could provide the basis for an increased number of judicial reviews or challenges to the decisions taken under the Bill and its framework, creating significant obstacles to the swift and effective implementation of the new regulatory framework, which I know is not something that he or other noble Lords would want. As noble Lords have noted, this is a complicated Bill, but adding further statements and new terminology to it, for however laudable a reason, risks adding to that complication, which can only benefit those with, as the noble Baroness, Lady Kidron, put it, the deepest pockets.

However, lest he think that I and the Government have not listened to his pleas or those of the Joint Committee, I highlight, as my noble friend Lady Stowell did, that the Joint Committee’s original recommendation was that these objectives

“should be for Ofcom”.

The Government took that up in Schedule 4 to the Bill, and in Clause 82(4), which set out objectives for the codes and for Ofcom respectively. At Clause 82(4) the noble Lord will see the reference to

“the risk of harm to citizens presented by content on regulated services”

and

“the need for a higher level of protection for children than for adults”.

I agree with the noble Baroness, Lady Chakrabarti, that it is not impossible to add purposive statements to Bills and nor is it unprecedented. I echo her tribute to the officials and lawyers in government who have worked on this Bill and given considerable thought to it. She has had the benefit of sharing their experience and the difficulties of writing tightly worded legislation. In different moments of her career, she has also had the benefit of picking at the loose threads in legislation and poking at the holes in it. That is the purpose of lawyers who question the thoroughness with which we have all done our work. I will not call them “pesky lawyers”, as she did—but I did hear her say it. I understand the point that she was making in anticipation but reassure her that she has not pre-empted the points that I was going to make.

To the layperson, legislation is difficult to understand, which is why we publish Explanatory Notes, on which the noble Baroness and others may have had experience of working before. I encourage noble Lords, not just today but as we go through our deliberations, to consult those as well. I hope that noble Lords will agree that they are more easily understood, but if they do not do what they say and provide explanation, I will be very willing to listen to their thoughts on it.

So, while I am not going to give the noble Lord, Lord Stevenson, the birthday present of accepting his amendment, I hope that the clear statement that I gave at the outset from this Dispatch Box, which is purposive as well, about the objectives of the Bill, and my outline of how it tries to achieve them, is a sufficient public statement of our intent, and that it achieves what I hope he was intending to get on the record today. I invite him to withdraw his amendment.

[Lord Stevenson of Balmacara (Lab)]

Well, my Lords, it has been a very good debate, and we should be grateful for that. In some senses, I should bank that; we have got ourselves off to a good start for the subsequent debates and discussions that we will have on the nearly 310 amendments that we must get through before the end of the process that we have set out on.

However, let us pause for a second. I very much appreciated the response, not least because it was very sharp and very focused on the amendment. It would have been tempting to go wider and wider, and I am sure that the Minister had that in mind at some point, but he has not done that. The first substantial point that he made seemed to be a one-pager about what this Bill is about. Suitably edited and brought down to manageable size, it would fit quite well into the Bill. I am therefore a bit puzzled as to why he cannot make the jump, intellectually or otherwise, from having that written for him and presumably working on it late at night with candles so that it was perfect—because it was pretty good; I will read it very carefully in Hansard, but it seemed to say everything that I wanted to say and covered most of the points that everybody else thought of to say, in a way that would provide clarity for those seeking it.

The issue we are left with was touched on by the noble Baroness, Lady Stowell, in her very perceptive remarks. Have we got this pointing in the right direction? We should think about it as a way for the Government to get out of this slightly ridiculous shorthand of the safest place to be online, to a statement to themselves about what they are trying to do, rather than an instruction to Ofcom—because that is where it gets difficult and causes problems with the later stages. This is really Parliament and government agreeing to say this, in print, rather than just through reading Hansard. That then reaches back to where my noble friend Lady Chakrabarti is, and it helps the noble Baroness, Lady Harding, with her very good point, that this will not work if people do not even bother to get through the first page.