Online Safety Bill

Lord Stevenson of Balmacara Excerpts

Committee stage
Tuesday 9th May 2023 Lords Chamber

Moved by

[Lord Stevenson of Balmacara]

40: Clause 12, page 12, line 27, after “to” insert “effectively”
Member’s explanatory statement
This amendment would bring this subsection into line with subsection (3) by requiring that the systems or processes available to users for the purposes described in subsections (7)(a) and (7)(b) should be effective.

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I will make one final point before I sit down. Freedom of speech is also a critical element of the Digital Markets, Competition and Consumers Bill. That is why I have been so concerned that it was introduced alongside online safety. I am glad that it has finally arrived in Parliament and that we will get to examine it before too long. But that is for another day—for now, I beg to move.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I have slightly abused my position because, as the noble Baroness has just said, this is a rather oddly constructed group. My amendments, which carve great chunks out of the Bill—or would do if I get away with it—do not quite point in the same direction as the very good speech the noble Baroness made, representing of course the view of the committee that she chairs so brilliantly. She also picked out one or two points of her own, which we also want to debate. It therefore might be easier if I just explain what I was trying to do in my amendments; then I will sit down and let the debate go, and maybe come back to pick up one or two threads at the end.

In previous Bills—and I have seen a lot of them—people who stand up and move clause stand part debates usually have a deeper and more worrying purpose behind the proposition. Either they have not read the Bill and are just trying to wing it, or they have a plan that is so complex and deep that it would probably need another whole Bill to sort it out. This is neither of those approaches; it is done because I want to represent the views mainly of the Joint Committee. We had quite a lot of debate in that committee about this area, beginning with the question about why the Bill—or the White Paper or draft Bill, at that stage—used the term “democratic importance” when many people would have used the parallel term “public interest” to try to reflect the need to ensure that matters which are of public good take place as a result of publication, or discussion and debate, or on online platforms. I am very grateful that the noble Lord, Lord Black, is able to be with us today. I am sure he will recall those debates, and hopefully he will make a comment on some of the work—and other members of the committee are also present.

To be clear, the question of whether Clauses 13, 14, 15 and 18 should stand part of the Bills is meant to release space for a new clause in Amendment 48. It is basically designed to try to focus the actions that are going to be taken by the Bill, and subsequently by the regulator, to ensure that the social media companies that are affected by, or in scope of, the Bill use, as a focus, some of the issues mainly related to “not taking down” and providing an appeal mechanism for journalistic material, whether that is provided by recognised news publishers or some other form of words that we can use, or it is done by recognised journalists. “Contentious” is an overused word, but all these terms are difficult to square away and be happy with, and therefore we should have the debate and perhaps reflect on that later when we come back to it.

The committee spent quite a lot of time on this, and there are two things that exercised our minds when we were working on this area. First, if one uses “content of democratic importance”, although it is in many ways quite a clever use of words to reflect a sensibility that you want to have an open and well-founded debate about matters which affect the health of our democracy, it can be read as being quite limiting. It is very hard to express—I am arguing against myself here—in the words of a piece of legislation what it is we are trying to get down to, but, during the committee’s recommendations, we received evidence that the definition of content of democratic importance was wider, or more capable of being interpreted as wider, than the scope the Government seem to have indicated. So there is both a good side and a bad side to this. If we are talking about content which is, or appears to be, specifically intended to contribute to the democratic political debate of the United Kingdom, or a part or area of the United Kingdom, we have got to ask the Minister to put on the record that this also inclusive of matters which perhaps initially do not appear necessarily to be part of it, but include public health, crime, justice, the environment, professional malpractice, the activities of large corporations and the hypocrisy of public figures when that occurs. I am not suggesting this is what we should be doing all the time, but these are things we often read about in our papers, and much the better off we are for it. However, if these things are not inclusive and not well rooted in the phrase “content of democratic importance”, it is up to the Government to come forward with a better way of expressing that, or perhaps in debate we can find it together.

I have some narrow questions. Are we agreed that what is currently in the Bill is intended specifically to contribute to democratic political debate, and is anything more needed to be said or done in order to make sure that happens? Secondly, the breadth of democratic political debate is obviously important; are there any issues here that are going to trip us up later when the Government come back and say, “Well, that wasn’t what we meant at all, and that doesn’t get covered, and therefore that stuff can be taken down, and that stuff there doesn’t have to be subject to repeal”? Are there contexts and subjects which we need to talk about? This is a long way into the question of content of democratic importance being similar or limited to matters that one recognises as relating to public interest. I think there is a case to be argued for the replacement of what is currently in the Bill with a way of trying to get closer to what we now recognise as being the standard form of debate and discussion when matters, which either the Government of the day or people individually do not like, get taken up and made the subject of legal discussion, because we do have discussions about whether or not it is in the public interest.

We probably do not know what that means. Therefore, a third part of my argument is that perhaps this is the point at which we try to define this, even though that might cause a lot of reaction from those currently in the press. In a sense, it is a question that needs to be resolved. Maybe this is or is not the right time to do that. Are the Government on the same page as the Joint Committee on this? Do they have an alternative and is this what they are trying to get across in the Bill?

Can we have a debate and discussion in relation to those things, making it clear that we want something in the Bill ensuring that vibrant political debate—the sort of things the noble Baroness was talking about on freedom of expression, but in a broader sense covering all the things that matter to the body politic, the people of this country—is not excluded by the Bill? That was the reason for putting down a raft of rather aggressive amendments. I hope it has been made clear that that was the case. I have other things that I would like to come back to, but I will probably do that towards the end of the debate. I hope that has been helpful.

[Baroness Bull (CB)]

My Lords, I will speak to the amendments in the name of the noble Baroness, Lady Stowell, to which I have added my name. As we heard, the amendments originally sat in a different group, on the treatment of legal content accessed by adults. Noble Lords will be aware from my previous comments that my primary focus for the Bill has been on the absence of adequate provisions for the protection of adults, particularly those who are most vulnerable. These concerns underpin the brief remarks I will make.

The fundamental challenge at the heart of the Bill is the need to balance protection with the right to freedom of expression. The challenge, of course, is how. The noble Baroness’s amendments seek to find that balance. They go beyond the requirements on transparency reporting in Clause 68 in several ways. Amendment 46 would provide a duty for category 1 services to maintain an up-to-date document for users of the service, ensuring that users understand the risks they face and how, for instance, user empowerment tools can be used to help mitigate these risks. It also provides a duty for category 1 services to update their risk assessments before making any “significant change” to the design or operation of their service. This would force category 1 services to consider the impact of changes on users’ safety and make users aware of changes before they happen, so that they can take any steps necessary to protect themselves and prepare for them. Amendment 47 provides additional transparency by providing a duty for category 1 services to release a public statement of the findings of the most recent risk assessment, which includes any impact on freedom of expression.

The grouping of these amendments is an indication, if any of us were in doubt, of the complexity of balancing the rights of one group against the rights of another. Regardless of the groupings, I hope that the Minister takes note of the breadth and depth of concerns, as well as the willingness across all sides of the Committee to work together on a solution to this important issue.

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[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to have been part of this debate and to have heard how much we are on common ground. I very much hope that, in particular, the Minister will have listened to the voices on the Conservative Benches that have very powerfully put forward a number of amendments that I think have gained general acceptance across the Committee.

I fully understand the points that the noble Lord, Lord Black, made and why he defends Clause 14. I hope we can have a more granular discussion about the contents of that clause rather than wrap it up on this group of amendments. I do not know whether we will be able to have that on the next group.

I thank the noble Baroness, Lady Stowell, for putting forward her amendment. It is very interesting, as the noble Baronesses, Lady Bull and Lady Fraser, said, that we are trying to get to the same sort of mechanisms of risk assessment, perhaps out of different motives, but we are broadly along the same lines and want to see them for adult services. We want to know from the Minister why we cannot achieve that, basically. I am sure we could come to some agreement between us as to whether user empowerment tools or terms of service are the most appropriate way of doing it.

We need to thank the committee that the noble Baroness chairs for having followed up on the letter to the Secretary of State for DCMS, as was, on 30 January. It is good to see a Select Committee using its influence to go forward in this way.

The amendments tabled by the noble Lord, Lord Kamall, and supported by my noble friend Lady Featherstone—I am sorry she is unable to be here today, as he said—are important. They would broaden out consideration in exactly the right kind of way.

However, dare I say it, probably the most important amendment in this group is Amendment 48 in the name of the noble Lord, Lord Stevenson. Apart from the Clause 14 stand part notice, it is pretty much bang on where the Joint Committee got to. He was remarkably tactful in not going into any detail on the Government’s response to that committee. I will not read it out because of the lateness of the hour, but the noble Viscount, Lord Colville, got pretty close to puncturing the Government’s case that there is no proper definition of public interest. It is quite clear that there is a perfectly respectable definition in the Human Rights Act 1998 and, as the noble Viscount said, in the Defamation Act 2013, which would be quite fit for purpose. I do not quite know why the Government responded as they did at paragraph 251. I very much hope that the Minister will have another look at that.

The amendment from the noble and learned Lord, Lord Hope, which has the very respectable support of Justice, is also entirely apposite. I very much hope that the Government will take a good look at that.

Finally, and extraordinarily, I have quite a lot of sympathy with the amendments from the noble Lord, Lord Moylan. It was all going so well until we got to Amendment 294; up to that point I think he had support from across the House, because placing that kind of duty on Ofcom would be a positive way forward.

As I say, getting a clause of the kind that the noble Lord, Lord Stevenson, has put forward, with that public interest content point and with an umbrella duty on freedom of expression, allied to the definition from the noble and learned Lord, Lord Hope, would really get us somewhere.

[Lord Stevenson of Balmacara (Lab)]

Lawyers—don’t you love them? How on earth are we supposed to unscramble that at this time of night? It was good to have my kinsman, the noble and learned Lord, Lord Hope, back in our debates. We were remarking only a few days ago that we had not seen enough lawyers in the House in these debates. One appears, and light appears. It is a marvellous experience.

I thank the Committee for listening to my earlier introductory remarks; I hope they helped to untangle some of the issues. The noble Lord, Lord Black, made it clear that the press are happy with what is in the current draft. There could be some changes, and we have heard a number of examples of ways in which one might either top or tail what there is.

There was one question that perhaps he could have come back on, and maybe he will, as I have raised it separately with the department before. I agree with a lot of what he said, but it applies to a lot more than just news publishers. Quality journalism more generally enhances and restores our faith in public services in so many ways. Why is it only the news? Is there a way in which we could broaden that? If there is not this time round, perhaps that is something we need to pick up later.

As the noble Lord, Lord Clement-Jones, has said, the noble Viscount, Lord Colville, made a very strong and clear case for trying to think again about what journalism does in the public realm and making sure that the Bill at least carries that forward, even if it does not deal with some of the issues that he raised.

We have had a number of other good contributions about how to capture some of the good ideas that were flying around in this debate and keep them in the foreground so that the Bill is enhanced. But I think it is time that the Minister gave us his answers.

[Lord Parkinson of Whitley Bay (Con)]

I join noble Lords who have sent good wishes for a speedy recovery to the noble Baroness, Lady Featherstone.

Amendments 46, 47 and 64, in the name of my noble friend Lady Stowell of Beeston, seek to require platforms to assess the risk of, and set terms for, content currently set out in Clause 12. Additionally, the amendments seek to place duties on services to assess risks to freedom of expression resulting from user empowerment tools. Category 1 platforms are already required to assess the impact on free expression of their safety policies, including user empowerment tools; to keep that assessment up to date; to publish it; and to demonstrate the positive steps they have taken in response to the impact assessment in a publicly available statement.

Amendments 48 and 100, in the name of the noble Lord, Lord Stevenson, seek to introduce a stand-alone duty on category 1 services to protect freedom of expression, with an accompanying code of practice. Amendments 49, 50, 53A, 61 and 156, in the name of the noble Baroness, Lady Fox, seek to amend the Bill’s Clause 17 and Clause 18 duties and clarify duties on content of democratic importance.

All in-scope services must already consider and implement safeguards for freedom of expression when fulfilling their duties. Category 1 services will need to be clear what content is acceptable on their services and how they will treat it, including when removing or restricting access to it, and that they will enforce the rules consistently. In setting these terms of service, they must adopt clear policies designed to protect journalistic and democratic content. That will ensure that the most important types of content benefit from additional protections while guarding against the arbitrary removal of any content. Users will be able to access effective appeal mechanisms if content is unfairly removed. That marks a considerable improvement on the status quo.

Requiring all user-to-user services to justify why they are removing or restricting each individual piece of content, as Amendment 53A would do, would be disproportionately burdensome on companies, particularly small and medium-sized ones. It would also duplicate some of the provisions I have previously outlined. Separately, as private entities, service providers have their own freedom of expression rights. This means that platforms are free to decide what content should or should not be on their website, within the bounds of the law. The Bill should not mandate providers to carry or to remove certain types of speech or content. Accordingly, we do not think it would be appropriate to require providers to ensure that free speech is not infringed, as suggested in Amendment 48.

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[Lord Stevenson of Balmacara (Lab)]

It is so complicated that the Minister is almost enticing me to stand up and ask about it. Let us just get that right: the reference to the Article 8 powers exists and applies to those bodies in the UK to which such equivalent legislation applies, so that ties us into Ofcom. Companies cannot be affected by it because it is a public duty, not a private duty, but am I then allowed to walk all the way around the circle? At the end, can Ofcom look back at the companies to establish whether, in Ofcom’s eyes, its requirements in relation to its obligations under Article 8 have or have not taken place? It is a sort of transparent, backward-reflecting view rather than a proactive proposition. That seems a complicated way of saying, “Why don’t you behave in accordance with Article 8?”

[Lord Parkinson of Whitley Bay (Con)]

Yes, Ofcom, which is bound by it through the Human Rights Act 1998, can ask those questions and make that assessment of the companies, but it would not be right for private companies to be bound by something to which it is not appropriate for companies to be signatories. Ofcom will be looking at these questions but the duty rests on it, as bound by the Human Rights Act.

[Lord Stevenson of Balmacara (Lab)]

It is late at night and this is slightly tedious, but in the worst of all possible circumstances, Ofcom would be looking at what happened over the last year in relation to its codes of practice and assertions about a particular company. Ofcom is then in trouble because it has not discharged its Article 8 obligations, so who gets to exercise a whip on whom? Sorry, whips are probably the wrong things to use, but you see where I am coming from. All that is left is for the Secretary of State, but probably it would effectively be Parliament, to say to Ofcom, “You’ve failed”. That does not seem a very satisfactory solution.

[Lord Parkinson of Whitley Bay (Con)]

Platforms will be guided by Ofcom in taking measures to comply with their duties which are recommended in Ofcom’s codes, and which contain safeguards for privacy, including ones based on the European Convention on Human Rights and the rights therein. Paragraph 10(2)(b) of Schedule 4 requires Ofcom to ensure that measures, which it describes in the code of practice, are designed in light of the importance of protecting the privacy of users. Clause 42(2) and (3) provides that platforms will be treated as complying with the privacy duties set out at Clause 18(2) and Clause 28(2), if they take the recommended measures that Ofcom sets out in the codes.

[Lord Stevenson of Balmacara (Lab)]

That is the point I was making.

[Lord Parkinson of Whitley Bay (Con)]

It worked. In seriousness, we will both consult the record and, if the noble Lord wants more, I am very happy to set it out in writing.

Amendment 63 in the name of the noble and learned Lord, Lord Hope of Craighead, seeks to clarify that “freedom of expression” in Clause 18 refers to the

“freedom to impart ideas, opinions or information”,

as referred to in Article 10 of the European Convention on Human Rights. I think I too have been guilty of using the phrases “freedom of speech” and “freedom of expression” as though they were interchangeable. Freedom of expression, within the law, is intended to encompass all the freedom of expression rights arising from UK law, including under common law. The rights to freedom of expression under Article 10 of the European Convention on Human Rights include both the rights to impart ideas, opinions and information, but also the right to receive such ideas, opinions and information. Any revised definition of freedom of expression to be included in the Bill should refer to both aspects of the Article 10 definition, given the importance for both children and adults of receiving information via the internet. We recognise the importance of clarity in relation to the duties set out in Clauses 18 and 28, and we are very grateful to the noble and learned Lord for proposing this amendment, and for the experience he brings to bear on behalf of the Constitution Committee of your Lordships’ House. The Higher Education (Freedom of Speech) Bill and the Online Safety Bill serve very different purposes, but I am happy to say that the Bill team and I will consider this amendment closely between now and Report.

Amendments 101, 102, 109, 112, 116, 121, 191 and 220, in the name of my noble friend Lord Moylan, seek to require Ofcom to have special regard to the importance of protecting freedom of expression when exercising its enforcement duties, and when drafting or amending codes of practice or guidance. Ofcom must already ensure that it protects freedom of expression when overseeing the Bill, because it is bound by the Human Rights Act, as I say. It also has specific duties to ensure that it is clear about how it is protecting freedom of expression when exercising its duties, including when developing codes of practice.

My noble friend’s Amendment 294 seeks to remove “psychological” from the definition of harm in the Bill. It is worth being clear that the definition of harm is used in the Bill as part of the illegal and child safety duties. There is no definition of harm, psychological or otherwise, with regard to adults, given that the definition of content which is harmful to adults was removed from the Bill in another place. With regard to children, I agree with the points made by the noble Baroness, Lady Kidron. It is important that psychological harm is captured in the Bill’s child safety duties, given the significant impact that such content can have on young minds.

I invite my noble friend and others not to press their amendments in this group.