Freedom of Expression (Communications and Digital Committee Report)

Lord Vaizey of Didcot Excerpts

Thursday 27th October 2022 Lords Chamber

[Lord Vaizey of Didcot (Con)]

My Lords, I join in paying tribute to the noble Lord, Lord Gilbert, for steering this excellent report through the committee. It was very much his idea; he was ahead of his time in alighting on this as a big gap in terms of how we debate online safety regulation. Let it not be forgotten that now I have a new leader—my noble friend Lady Stowell—and I duly genuflect to her for the few months that I have remaining to serve on this excellent committee, which does some excellent work. It has been a wonderful way in which to be introduced to your Lordships’ House.

I echo a lot of the points made already by people who are extremely well informed in this arena. First, on the point made by the noble Baroness and the noble Lord, Lord Gilbert, about the Digital Markets Unit, it is obviously very important that we update competition regulation. It is interesting that the analogue Competition and Markets Authority still managed to take a swipe at Meta/Facebook and forced it to divest itself of Giphy, which is a site that produces lots of memes. No doubt the decision produced its own memes—but it has been a very bad week for Mark Zuckerberg, and I gather that he is now down to $38 billion in net worth. He has lost $100 billion and is now merely worth his age, 38, so we hope that it does not go any lower. I am not generally in favour of the competition authorities getting involved in these kinds of issues, but it is a good reflection that the acquisition of small companies, such as Instagram, can sometimes shut off competition at an early stage.

I also want to get off my chest this issue about digital citizenship. By the way, as mentioned in the register of interests, I work with Common Sense Media, a US not-for-profit organisation that promotes digital citizenship, as well as NewsGuard, which combats fake news sites. I find the phrase “digital citizenship” intensely annoying, because it has become completely meaningless. That is not to be rude about Common Sense Media, the organisation that I work for, which provides very useful videos and training for young people on how to handle online bullying, and so on. It also means that we miss the point about how still clunky technology is. For me, the biggest change that we could make in digital citizenship would be to take the 120 pages of terms and conditions that you sign up to when you buy a new phone and turn them into five principles, so you know exactly, in effect, what you are signing up for.

I would like to see the Government—and, indeed, this Minister, in the few hours he remains in his current post, although I am sure he will be moved to an equally good department—

[Noble Lords]

Oh!

[Lord Vaizey of Didcot (Con)]

I am only teasing about the endless reshuffle. My jokes do not always work in this place. I would love the Minister to say what the Government are doing to encourage technology companies to be more user-friendly. That may involve digital citizenship training for the Home Secretary, who I gather finds it difficult even to use email. Clearly, there are issues here for people of every level of experience.

At the heart of this debate is, of course, what we mean by “legal but harmful”. I completely agree with the noble Baroness, Lady Fox. I was hoping to disagree with her, because she is very provocative, but she is right to a certain extent about moral panic. The rise of Trump was actually aided by CNN more than anybody else. We sometimes load too much on to the platforms in terms of what they do. Nevertheless, I strongly support internet regulation of some kind. We need to make platforms accountable. The best example is, when you have a Twitter pile-on and you have the most vile abuse—particularly as a politician—there is simply no way in which to get redress. There has to be a regulatory backstop for you to be able to do that. But let us be clear: this is not broadcast regulation and it is not going to take every tweet and adjudicate; it is systems regulation and it is long overdue.

The final point that I would make to the Minister—and I shall not make another joke about him moving—is that I would love to hear what more the Government are doing on age verification and identity. It is such an important issue, and we simply cannot seem to get to a clear answer. It is about dealing with the issue of adult content, which the noble Baroness, Lady Fox, raised—and it seems unbelievable that we still do not have proper age verification procedures in place for this kind of thing.

Finally, as a committed remainer, I celebrate, along with the noble Lord, Lord Allan, the fact that these terrible EU bureaucrats who can barely tie their own shoelaces have managed to pass much more quickly than us sensible regulations on internet and competition regulation, while we see the Online Safety Bill tortuously stuck in the other place.

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

My Lords, I begin by thanking my noble friend Lord Gilbert for moving this debate on the committee’s report. I also thank noble Lords who are members of that committee for having the foresight to place digital regulation at the centre of public debate, especially in their report. Let me also thank all noble Lords, whether or not they are on the committee, for their contributions.

Before I turn to the specific recommendations made in the report, as noble Lords asked about one fundamental issue that lies at the heart of this debate—freedom of expression—I think it is worth looking at that. Your Lordships’ committee highlighted the importance of protecting freedom of expression online and, as was said by the noble Baroness, Lady Featherstone, this is an age in which the internet has brought huge opportunities for freedom of expression. It allows people from all over the world to exchange ideas at a speed and scale never seen before. We should not throw that out.

When I was lecturing on international business courses, we used to talk about this concept in academic terms as space-time compression leading to globalisation. This has been of huge benefit to mankind, and one of the challenges for countries where we have reasonably good internet access is how to spread that to the rest of the world. Sometimes that is via mobile devices, if the landlines are not good enough, but we should not forget the important progress we have made. We should also remember how we can harness the good side of that technology.

As a result, as my noble friend Lord Gilbert said, the largest tech platforms exercise great influence over public discourse. They determine what content people encounter online and can arbitrarily remove content, with no accountability and few routes for users to appeal. One of the interesting questions around this debate is that there are always tensions. We are talking about freedom of expression against security or safety, and also how we behave towards other people and who has the right to remove content or to be an arbiter. Sometimes we see a tension between property rights and freedom of expression, and we have to address how much we give those platforms, which can argue, “Well, it’s our space, we have a right to arbitrate on who can have that debate here”. We see that in the physical world as well, where certain schools and campuses ban speakers. There is a tension between freedom of expression and property rights. The number of issues just shows how difficult this is.

This is why the Online Safety Bill is so important. We will bring it back soon—as soon as possible. By that I mean sooner than possible, and “possible” is not “probable”, if that makes sense. I wish I could say more, but I am always warned by my officials to be very careful what I say, because of various processes. Noble Lords who have been in government will understand this.

For the first time, tech companies are going to be accountable to an independent regulator for the protection of children and tackling of illegal content, while also protecting freedom of expression. I am very grateful to the noble Lord, Lord Allan, for his points on the challenges and difficult issues that companies will have to overcome. It is not as simple as it sounds: we all want children to be protected, but it brings up lots of tensions and debate about how you do that and what the trade-offs are. But I am confident, having taken one Bill through this House, that we can rely on the wisdom of noble Lords to find an appropriate balance and address that tension. There is almost universal consensus on protecting children online but, as I said to the House yesterday, for adults we have to straddle that difficult tension between freedom of expression and protecting the vulnerable.

I hope that noble Lords will allow me to summarise some key changes to the Bill since the committee’s report. The noble Lord, Lord Davies, talked about fraud. That is covered under illegal content. I know that the committee made recommendations on content, and most noble Lords agree on the need to ensure that the Online Safety Bill includes strong protections against illegal content and criminal activity, while avoiding the removal of legal speech.

The Government have added provisions in the other place to establish how providers should determine whether content is illegal. We clarified how companies should determine whether content is illegal, protecting against both under-removal and over-removal of content, as the noble Lord, Lord Gilbert, alluded to. The Bill also includes strong protections for freedom of expression. Companies must have regard to freedom of expression when discharging their illegal content duties. I have no doubt that the noble Lord, Lord Allan, and I will have debates about what “due regard” means. Again, that is one of the issues we must address, and the largest platforms must set out what they are going to do to safeguard free speech.

The Government also welcome the committee’s endorsement of the importance of child safety. The strongest protections in the Bill remain those for children, but as the noble Lord, Lord Londesborough, said, how do we achieve that? How do we get there?

We have also addressed the committee’s concern that pornographic services were not captured in the Bill. We have made changes to require all websites which publish or host pornography to put robust checks in place to ensure that users are 18 years old or over. Again, as with many of these things, the question is how we deal with determined teenagers, who are often more tech-savvy than their parents and can run rings around them. We can put the best protections in place, but even the world’s best cybersecurity experts cannot stop hackers. So, we have to reduce this as much as possible, but I have to be honest: are we going to prevent the most determined and tech-savvy teenager from accessing content that we do not want them to access? That is a challenge, but we have to be honest about what we can and cannot do: what we can do through regulation, what companies themselves can do, but also what we can all do as society, as parents, as neighbours.

Let me turn to the committee’s recommendations on adult safety. We agree that platforms’ moderation decisions are inconsistent and opaque. That is why the duties in the Bill require major platforms to be transparent about and accountable for how they treat users’ content. We will continue to ensure that the Bill strikes the appropriate balance between safety and freedom of expression, but that will move in this House. We have also added measures to give adults more control over who can contact them. Adult users will be given options to verify their identity—the noble Baroness, Lady Merron, asked about this—and to decide whether to interact with unverified users. We hope that this will empower adults to manage their personal online experience, while protecting the anonymity of those who may need it, such as victims of abuse. Again, there is a very difficult balance to strike: we must make sure that we can tackle those who are anonymous and malicious, but we also have to protect those who have to remain anonymous for fear of abuse turning into something worse.

A number of noble Lords, including the noble Lord, Lord Griffiths, mentioned a point that the committee rightly highlighted: the importance of platform design in keeping users safe online. We hope that the Bill will ensure that companies design their services to mitigate the risk of harm from illegal content, and to protect children. This has always been the policy intent. We clarified this in the other place by amending the Bill to include an explicit duty on companies to take measures relating to the design of their services. These changes will ensure that companies build in safety by design, managing the risk of illegal content and activity on their services, rather than mostly focusing on content moderation.

My noble friend Lady Stowell, the noble Viscount, Lord Colville, and others talked about digital markets regulation. The committee made a number of recommendations. The Government remain committed to establishing a pro-competition regime to boost competition in digital markets. We want to introduce new, faster, more effective tools to address the unique barriers to competition in digital markets. The Government will set out their plans for the new regime in a draft Bill during this legislative Session. As set out in the Plan for Digital Regulation, the Government are committed to ensuring that our regulators have the capacity and expertise to regulate effectively and proportionately.

The committee also recommended the creation of a new parliamentary Joint Committee to scrutinise the work of digital regulators. I am afraid I have to refer noble Lords back to the position the Government adopted in their response. The Government believe that such a permanent Joint Committee it is unnecessary when we already have rigorous scrutiny provided by established committees, such as your Lordships’ committee and the DCMS Select Committee in the other place. However, the Government intend to work with Parliament to support scrutiny of the Online Safety Bill in a way that captures the skills and expertise in both Houses. We welcome further views during the passage of this Bill.

I turn to a number of the points raised specifically by noble Lords. I will start with my noble friend Lord Vaizey. I would like to ask him: what does he know that others do not know about the reshuffle? I hope this is not fake news to drive traffic to his podcast.

[Lord Vaizey of Didcot (Con)]

On a slightly serious point, I know that the Minister in the Commons, Damian Collins, has left his post, which is a very sad reflection on how seriously the Government are taking the progress of the Online Safety Bill.

[Lord Kamall (Con)]

I should take this opportunity to pay tribute to my honourable friend Damian Collins for his expertise. I sat in on a fascinating meeting that the noble Baroness, Lady Kidron, organised last week with children’s groups. It was clear that he was on top of his brief. I have to admit that there will be a gap to fill, but I hope we will be able to fill it.

On that, I thank the noble Baroness, Lady Kidron, in her absence, for organising that round table, and the noble Lord, Lord McNally, others who attended for their comments. It was touching, moving and gave me lots to think about. When I met Ian Russell, the father of Molly Russell, I said to him that we will do all we can to try to ensure this does not happen again. That is something I am sure noble Lords across the House agree on. We might disagree on how we do that, but let us keep that in mind as we go through the Online Safety Bill.

The noble Baroness, Lady Featherstone, was absolutely right: we have to equip our children to be robust enough to stand up to difficult arguments. I teach international politics. In my academic job, which I am on leave of absence from, my boss is a Marxist and I am a libertarian-minded Conservative, so we are at two different ends of the political spectrum. But we both agree that it is important to try not to indoctrinate our children but to expose them to arguments from across the political spectrum, and to let them decide and to argue and debate with each other. That gives them robustness, but it also allows them to think intellectually and develop. I agreed with the noble Baroness when she said that this is really important. We have to be very careful about mollycoddling our children and overprotecting them. We should expose them to arguments but also to tools to argue back against people. I know that some noble Lords will disagree. Once again, the noble Baroness, Lady Fox, made those remarks.

The noble Baroness, Lady O’Neill, made some fascinating points about respect and civility—I can tell why she is a philosopher. We also need to understand the issue of subjectivity. If someone says something and you are harmed, does that give you cause for redress? There is also an awful lot of hypocrisy in discussing freedom of speech. People often say that they are in favour of freedom of expression until they are offended, and then they are suddenly against it. I remember when I was in the European Parliament and there were the Danish cartoons of Muhammad. I am a practising Muslim. I was offended by some of the cartoons and I actually found some of them funny, but I did not think that they should be banned. I was happy to see the debate around them in a free society.

Then I took part in a debate and talked about the whiteness of the European political space, the lack of racial and ethnic diversity, some of the imperial ambitions of the EU and racism across the spectrum, including on the left, and I was asked to apologise because I had offended some people. The same people who extolled the virtues of freedom of expression were suddenly asking me to apologise because they did not like what I said. We have to be clear when we are concerned about something or are harmed or offended. We talk about freedom of expression: let us make sure we are consistent. Let us make sure that not only do we think we should feel free to say things, so long as they are not encouraging violence against others, for example, but at the same time are willing to be open to criticism in our own right. That makes for a stronger, more robust and more intellectually challenging society. From discourse comes liberty. That is an important point that we should not forget.

I can try to beat the clock. The noble Lord, Lord McNally, and the noble Baroness, Lady Uddin, talked about media literacy. It is a crucial skill for everyone in the digital age. Key media literacy skills are taught through a number of compulsory subjects in the national curriculum, but we need to be careful about it. We have to make sure that it is always up to date. There are new challenges. We have to make sure that these curricula are updated. We have the computing national curriculum, which builds digital literacy and citizenship education—some noble Lords do not like the idea of that. We want to make sure that there is critical thinking in debates in relation to the proper functioning of democracy. The Department for Education is reviewing its Teaching Online Safety in Schools guidance and its non-statutory guidance, which provide advice and support on how to teach children to stay safe online. The DCMS and the Department for Education work closely to create a holistic, whole-of-government approach to supporting media literacy.

The noble Viscount, Lord Colville, asked about an Australian-style bargaining code. We are committed to defending media freedom and enhancing the sustainability of the press sector, and we hope that the pro-competition regime conduct requirements will improve transparency and allow large platforms to provide the businesses that rely on them with fair and reasonable terms. This will make an important contribution to the sustainability of the press. In addition, we are minded to pursue the use of a binding final-offer mechanism as a backstop to resolve challenging price-related disputes where needed. We will design the mechanism to boost competition in all digital markets and have been engaging with the Australian Government to understand the impact of their news media bargaining code on platforms and publishers. This regime presents just one aspect of the Government’s wider support for news publishers, and we will continue to consider all possible options in the interests of promoting and sustaining the sector. Once again, we are open to the wisdom and knowledge of noble Lords in this House on how we do that.

A number of noble Lords, including the noble Lords, Lord Strathcarron, Lord Vaizey and Lord Londesborough, asked about age verification. There will be clear requirements for companies to prevent children accessing harmful content, such as online pornography. Companies that are likely to be accessed by children will need to use a range of technology, including age verification, to comply with the new requirement. Age assurance and age verification have now been referenced in the Bill, which provides clear direction to Ofcom and companies about the measures we expect may be used where proportionate. The Bill will not mandate that companies use specific technologies to comply with their new duties. It is important the Bill is future-proofed as much as possible, and what is most effective today may not be effective in the future. Once again noble Lords talked about issues such as VPNs, and there are ways around them, and there are other technologies that will challenge people’s safety. For example, I was told about face-scanning technologies and iris recognition for age verification, but is there something eerie about using that sort of technology? Do people feel concerned about that technology and the way the data is stored? Does it feel like a Big Brother society or is it useful to society? There will be different views among noble Lords in this Chamber, but we have to understand the spectrum of views. We know that age-assurance technologies are developing rapidly and there is growing usage.

The noble Lord, Lord Clement-Jones, talked about JS Mill. He knows that I am classically liberal-minded, so it is worth quoting Mill, who said that

“the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”.

But there is disagreement over what is harmful, and JS Mill acknowledged that. When I was reading about this, I remember one paper saying that Mill does not say that the Government must always intervene to prevent one person harming another. Clearly, that is a philosophical discussion and there are a number of interpretations of JS Mill, but it is important that we recognise some of those issues. I also thank the noble Lord, Lord Clement-Jones, for bringing that up so that I could digress into political philosophy.

This has been a fascinating debate. It has highlighted the arguments and tensions between online safety and freedom of expression, which I know we will return to during debates on the Online Safety Bill very soon. Let me once again thank all noble Lords for their wise contributions today and for exposing some of the challenges that we are going to face as we take that Bill through the Lords. I end by thanking the noble Lord, Lord Gilbert, for moving this debate. I look forward to continuing the debate and to working constructively with noble Lords as we chart our course through these new challenges.