Alex Davies-Jones
Main Page: Alex Davies-Jones (Labour - Pontypridd)Online Safety Bill (Fourteenth sitting)
Alex Davies-Jones ExcerptsTuesday 21st June 2022
(1 year, 11 months ago)
Public Bill CommitteesRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 21 June 2022 - (21 Jun 2022)
Alex Davies-Jones (Pontypridd) (Lab)
As we know, clause 143 introduces a power for the Secretary of State to set out a statement of the Government’s strategic priorities in relation to online safety matters. Given that the power is similar to those that already exist in the Communications Act 2003, we do not formally oppose the clause. We welcome the fact that the Secretary of State must follow a consultation and parliamentary procedure before proceeding. It is vital that transparency surrounds any targets or priorities that the Secretary of State may outline. However, we want to put on record our slight concerns around the frequency limitations on amendments that are outlined in subsections (7) and (8). This is a direct interference regime, and we would appreciate the Minister’s reassurances on the terms of how it will work in practice.
We also welcome clause 144, which sets out the consultation and parliamentary procedure requirements that must be satisfied before the Secretary of State can designate a statement of strategic priorities under clause 143. We firmly believe that parliamentary oversight must be at the heart of the Bill, and the Minister’s Back Benchers agree. We have heard compelling statements from the right hon. Member for Basingstoke and other colleagues about just how important parliamentary oversight of the Bill will be, even when it has received Royal Assent. That is why clause 144 is so important: it ensures that the Secretary of State must consult Ofcom when considering the statement of strategic priorities.
Following that, the draft statement must be laid before Parliament for proper scrutiny. As we have said before, this is central to the Bill’s chances of success, but Labour firmly believes that it would be unreasonable for us to expect the Secretary of State to always be an expert across every policy area out there, because it is not possible. That is why parliamentary scrutiny and transparency are so important. It is not about the politics; it is about all of us working together to get this right. Labour will support clause 144 because, fundamentally, it is for the Secretary of State to set out strategic priorities, but we must ensure that Parliament is not blocked from its all-important role in providing scrutiny.
Chris Philp
I thank the shadow Minister for her broad support for these two clauses. Clause 143 provides the power, but not an obligation, for the Secretary of State to set out a strategic statement on her priorities for online safety matters. As the shadow Minister said, it is similar to powers that already exist in other areas. The clause links back to clause 78, whereby Ofcom must have regard to the strategic priorities and set out how it responds to them when they are updated. On clause 144, I am glad that the shadow Minister accepts the consultation has to happen and that the 40-day period for Parliament to consider changes to the draft statement and, if it wishes to, to object to them is also a welcome opportunity for parliamentary scrutiny.
The Government have heard the wider points about parliamentary scrutiny and the functioning of the Joint Committee, which my right hon. Friend the Member for Basingstoke mentioned previously. I have conveyed them to higher authorities than me, so that transmission has occurred. I recognise the valuable work that the Joint Committee of the Commons and Lords did in scrutinising the Bill prior to its introduction, so I am glad that these clauses are broadly welcome.
Question put and agreed to.
Clause 143 accordingly ordered to stand part of the Bill.
Clause 144 ordered to stand part of the Bill.
Clause 145
Directions about advisory committees
Question proposed, That the clause stand part of the Bill.
Alex Davies-Jones
Labour supports the clause, which enables the Secretary of State to give Ofcom a direction to establish an expert committee to advise it on a specific online safety matter. As we have said repeatedly, it is vital that expert stakeholders are included as we begin the challenging process of regulating the internet. With that in mind, we need to ensure that the committee truly is expert and that it remains independent.
The Minister knows that I have concerns about Ofcom’s ability to remain truly independent, particularly given the recent decision to appoint a Tory peer to chair the organisation. I do not want to use our time today to make pointed criticisms about that decision—much as I would like to—but it is important that the Minister addresses these concerns. Ofcom must be independent—it really is quite important for the future success of the Bill. The expert committee’s chair, and its other members, must be empowered to report freely and without influence. How can the Minister ensure that that will genuinely be the case?
Subsection (4) places a duty on an advisory committee established under such a direction to publish a report within 18 months of its being established. I want to push the Minister on the decision to choose 18 months. I have mentioned my concerns about that timeframe; it seems an awfully long time for the industry, stakeholders, civil society and, indeed, Parliament to wait. I cannot be clearer about how important a role I think that this committee will have, so I would be grateful if the Minister could clarify why he thinks it will take 18 months for such a committee to be established.
That said, we broadly support the principles of what the clause aims to do, so we have not sought to amend it at this stage.
Chris Philp
I thank the shadow Minister for her comments and questions. She raised two substantive points on the clause; I will address those, rather than any wider issues that may be contentious.
The first question was about whether the advisory committee would be independent, and how we can be certain that it will not be unduly interfered in by the Government. The answer lies clearly in subsection (3). Paragraphs (a) and (b) make it very clear that although the Secretary of State may direct Ofcom to establish the committee, the identity of the people on the committee is for Ofcom to determine. Subsection (3)(a) states very clearly that the chairman is “appointed by OFCOM”, and subsection (3)(b) states that members of the committee are
“appointed by OFCOM as OFCOM consider appropriate.”
It is Ofcom, not the Secretary of State, that appoints the chair and the members. I trust that that deals with the question about the independence of the members.
On the second question, about time, the 18 months is not 18 months for the committee to be established—I am looking at clause 145(4)—but 18 months for the report to be published. Subsection (4) says “within” a period of 18 months, so it does not have to be 18 months for delivery of the report; it could be less, and I am sure that in many cases it will be. I hope that answers the shadow Minister’s questions on the clause, and I agree that it should stand part of the Bill.
Question put and agreed to.
Clause 145 accordingly ordered to stand part of the Bill.
Clause 146
Directions in special circumstances
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss new clause 10—Special circumstances—
“(1) This section applies where OFCOM has reasonable grounds for believing that circumstances exist that present a threat—
(a) to the health or safety of the public, or
(b) to national security.
(2) OFCOM may, in exercising their media literacy functions, give priority for a specified period to specified objectives designed to address the threat presented by the circumstances mentioned in subsection (1).
(3) OFCOM may give a public statement notice to—
(a) a specified provider of a regulated service, or
(b) providers of regulated services generally.
(4) A ‘public statement notice’ is a notice requiring a provider of a regulated service to make a publicly available statement, by a date specified in the notice, about steps the provider is taking in response to the threat presented in the circumstances mentioned in subsection (1).
(5) OFCOM may, by a public statement notice or a subsequent notice, require a provider of a regulated service to provide OFCOM with such information as they may require for the purpose of responding to that threat.
(6) If OFCOM takes any of the steps set out in this Chapter, they must publish their reasons for doing so.
(7) In subsection (2) ‘media literacy functions’ means OFCOM’s functions under section 11 of the Communications Act (duty to promote media literacy), so far as functions under that section relate to regulated services.”
This new clause gives Ofcom the power to take particular steps where it considers that there is a threat to the health and safety of the public or to national security, without the need for a direction from the Secretary of State.
Alex Davies-Jones
As we all know, the clause as it stands enables the Secretary of State to give Ofcom directions in circumstances where it considers that there is a threat to the health or safety of the public or to national security. That includes directing Ofcom to prioritise action to respond to a specific threat when exercising its media literacy functions, and to require specified service providers, or providers of regulated services more generally, to publicly report on what steps they are taking to respond to that threat.
However, Labour shares the concerns of the Carnegie UK Trust, among others, that there is no meaningful constraint on the Secretary of State’s powers to intervene as outlined in the clause. Currently, the Secretary of State has the power to direct Ofcom where they have “reasonable grounds for believing” that there is a threat to the public’s health or safety or to national security. The UK did not need these powers before—during the cold war, for example—so we have to ask: why now?
Chris Philp
So far as I am aware, the phenomenon of social media companies, to which media literacy relates, did not exist during the cold war.
Alex Davies-Jones
It did not, but there were examples of disinformation, misinformation and the spreading of falsehoods, and none of these powers existed at the time. It seems weird—if I can use that term—that these exist now. Surely, the more appropriate method would be for the Secretary of State to write a letter to Ofcom to which it had to have regard. As it stands, this dangerous clause ensures the Secretary of State has the power to interfere with day-to-day enforcement. Ultimately, it significantly undermines Ofcom’s overall independence, which we truly believe should be at the heart of the Bill.
With that in mind, I will now speak to our crucial new clause 10, which instead would give Ofcom the power to take particular steps, where it considers that there is a threat to the health and safety of the public or national security, without the need for direction from the Secretary of State. Currently, there is no parliamentary scrutiny of the powers outlined in clause 146; it says only that the Secretary of State must publish their reasoning unless national security is involved. There is no urgency threshold or requirement in the clause. The Secretary of State is not required to take advice from an expert body, such as Public Health England or the National Crime Agency, in assessing reasonable grounds for action. The power is also not bounded by the Bill’s definition of harm.
These instructions do two things. First, they direct Ofcom to use its quite weak media literacy duties to respond to the circumstances. Secondly, a direction turns on a power for Ofcom to ask a platform to produce a public statement about what the platform is doing to counter the circumstances or threats in the direction order—that is similar in some ways to the treatment of harm to adults. This is trying to shame a company into doing something without actually making it do it. The power allows the Secretary of State directly to target a given company. There is potential for the misuse of such an ability.
The explanatory notes say:
“the Secretary of State could issue a direction during a pandemic to require OFCOM to; give priority to ensuring that health misinformation and disinformation is effectively tackled when exercising its media literacy function; and to require service providers to report on the action they are taking to address this issue.”
Recent experience of the covid pandemic and the Russian invasion of Ukraine suggests that the Government can easily legislate when required in an emergency and can recall Parliament. The power in the Bill is a strong power, cutting through regulatory independence and targeting individual companies to evoke quite a weak effect. It is not being justified as an emergency power where the need to move swiftly is paramount. Surely, if a heavier-duty action is required in a crisis, the Government can legislate for that and explain to Parliament why the power is required in the context of a crisis.
Kim Leadbeater (Batley and Spen) (Lab)
It is really important to make sure that the Bill does not end up being a cover for the Secretary of State of the day to significantly interfere with the online space, both now and in the future. At the moment, I am not satisfied that the Secretary of State’s powers littered through the Bill are necessary. I share other hon. Members’ concerns about what this could mean for both the user experience and online safety more broadly. I hope my hon. Friend agrees that the Minister needs to provide us—not just us here today, but civil society and others who might be listening—with more reassurance that the Secretary of State’s powers really are necessary.
Alex Davies-Jones
I completely agree with my hon. Friend. We talk time and again about this Bill being world leading, but with that comes a responsibility to show global leadership. Other countries around the world will be looking to us, and this Parliament, when they adopt their own, similar legislation, and we need to be mindful of that when looking at what powers we give to a Secretary of State—particularly in overruling any independence of Ofcom or Parliament’s sovereignty for that matter.
New clause 10 provides a viable alternative. The Minister knows that this is an area where even his Back Benchers are divided. He must closely consider new clause 10 and recognise that placing power in Ofcom’s hands is an important step forward. None of us wants to see a situation where the Secretary of State is able to influence the regulator. We feel that, without this important clause and concession, the Government could be supporting a rather dangerous precedent in terms of independence in regulatory systems more widely.
Kirsty Blackman
I want to talk about a specific example. Perhaps the Minister will be able to explain why the legislation is written this way around when I would have written it the opposite way around, much more in line with proposed new clause 10.
Snapchat brought in the Snap Map feature, which that involved having geolocation on every individual’s phone; whenever anyone took a photo to put it on Snapchat, that geolocation was included. The feature was automatically turned on for all Snapchat users when it first came in, I think in 2017. No matter what age they were, when they posted their story on Snapchat, which is available to anyone on their friends list and sometimes wider, anyone could see where they were. If a child had taken a photo at their school and put it on Snapchat, anyone could see what school they went to. It was a major security concern for parents.
That very concerning situation genuinely could have resulted in children and other vulnerable people, who may not have even known that the feature had been turned on by default and would not know how to turn on ghost mode in Snapchat so as not to post their location, being put at risk. The situation could have been helped if media literacy duties had kicked in that meant that the regulator had to say, “This is a thing on Snapchat: geolocation is switched on. Please be aware of this if your children or people you are responsible for are using Snapchat.”
Chris Philp
Let me start by addressing the point that was raised by the hon. Member for Aberdeen North on Ofcom’s power to issue media literacy advice of its own volition, which is the subject of new clause 10. Under section 11 of the Communications Act 2003, Ofcom already has the power to issue media literacy guidance on issues such as Snapchat geolocation, the Strava map location functionality that I mentioned, and the other example that came up. Ofcom does not need the Secretary of State’s permission to do that, as it already has the power to do so. The power that new clause 10 would confer on Ofcom already exists.
Alex Davies-Jones
The Minister says that Ofcom can already use that existing power, so why does it not do so?
Chris Philp
That is obviously an operational matter for Ofcom. We would encourage it to do as much as possible. We encouraged it through our media literacy strategy, and it published an updated policy on media literacy in December last year. If Members feel that there are areas of media literacy in which Ofcom could do more, they will have a good opportunity to raise those questions when senior Ofcom officials next appear before the Digital, Culture, Media and Sport Committee or any other parliamentary Committee.
The key point is that the measures in new clause 10 are already in legislation, so the new clause is not necessary. The Secretary of State’s powers under clause 146 do not introduce a requirement for permission—they are two separate things. In addition to Ofcom’s existing powers to act of its own volition, the clause gives the Secretary of State powers to issue directions in certain very limited circumstances. A direction may be issued where there is a present threat—I stress the word “threat”—to the health or safety of the public or to national security, and only in relation to media literacy. We are talking about extremely narrowly defined powers.
Chris Philp
The hon. Lady is quite right to correct me. I do mean “present a threat”, as it is written in the Bill—I apologise for inadvertently transposing the words.
Is it reasonable that the Secretary of State has those very limited and specific powers? Why should they exist at all? Does this represent an unwarranted infringement of Ofcom’s freedom? I suppose those are the questions that the Opposition and others might ask. The Government say that, yes, it is reasonable and important, because in those particular areas—health and safety, and national security—there is information to which only the Government have access. In relation to national security, for example, information gathered by the UK intelligence community—GCHQ, the Secret Intelligence Service and MI5—is made available to the Government but not more widely. It is certainly not information that Ofcom would have access to. That is why the Secretary of State has the power to direct in those very limited circumstances.
I hope that, following that explanation, the Committee will see that new clause 10 is not necessary because it replicates an existing power, and that clause 146 is a reasonable provision.
Alex Davies-Jones
I welcome the Minister’s comments, but I am not convinced by his arguments on the powers given to the Secretary of State on issues of national security or public health and safety. Parliament can be recalled and consulted, and Members of Parliament can have their say in the Chamber on such issues. It should not be up to the Secretary of State alone to direct Ofcom and challenge its independence.
Chris Philp
I understand the shadow Minister’s point, but recalling Parliament during a recess is extremely unusual. I am trying to remember how many times it has happened in the seven years that I have been here, and I can immediately recall only one occasion. Does she think that it would be reasonable and proportionate to recall 650 MPs in recess for the purpose of issuing a media literacy directive to Ofcom?
Alex Davies-Jones
I think the Minister has just made my point for me. If he does not see this happening only in extreme circumstances where a threat is presented or there is an immediate risk to public health and safety, how many times does he envisage the power being used? How many times will the Secretary of State have the power to overrule Ofcom if the power is not to be used only in those unique situations where it would be deemed appropriate for Parliament to be recalled?
Chris Philp
It is not overruling Ofcom; it is offering a direction to Ofcom.
Alex Davies-Jones
Yes—having direct influence on a regulator, overruling its independence and taking the stance directly themselves. The Minister has made my point for me: if he does not envisage the power being used only in unique circumstances where Parliament would need to be recalled to have a say, it will be used a lot more often than he suggests.
With that in mind, the Opposition will withhold our support for clause 146, in order to progress with new clause 10. I place on record the Labour party’s distinct concerns with the clause, which we will seek to amend on Report.
Dan Carden (Liverpool, Walton) (Lab)
I add my voice to the concerns that have been raised about the clause, and about the powers for the Secretary of State that are littered throughout the Bill. This comes on top of the scandals around the public appointments process that we have seen under this Government—even around the role of chair of Ofcom, which they tried to hand to a former editor of the Daily Mail, Paul Dacre. Earlier this year, Lord Grade was appointed for a four-year term. He is on £140,000-odd a year. The Secretary of State is responsible for appointing the whole board of Ofcom. I really do wonder why, on top of the power that the Government hold in the appointments process, they need the Secretary of State to have the claims to intervention that the Bill affords her.
Chris Philp
I have nothing further to add.
Question put and agreed to.
Clause 146 accordingly ordered to stand part of the Bill.
Clause 147
Secretary of State’s guidance
Question proposed, That the clause stand part of the Bill.
Alex Davies-Jones
It seems that our support for the clauses has run out. Clause 147 enables the Secretary of State to give guidance to Ofcom relating to its exercise of its statutory powers and functions under the Bill. It also allows the Secretary of State to give guidance to Ofcom around its functions and general powers under certain provisions of the Communications Act 2003. While we appreciate that the Secretary of State must consult Ofcom before issuing, revising or replacing guidance, we feel that this level of interference is unnecessary.
The Minister must recognise that the clause allows for an incredibly granular level of interference by the Secretary of State in the day-to-day functioning of a supposedly independent regulator. It profoundly interferes with enforcement and once again broadly undermines Ofcom’s independence. Civil society and stakeholders alike share our concerns. I must press the Minister on why this level of interference is included in the Bill—what is the precedent? We have genuine concerns that the fundamental aims of the Bill—to keep us all safe online—could easily be shifted according to the priorities of the Secretary of State of the day. We also need to ensure there is consistency in our overall approach to the Bill. Labour feels that this level of interference will cause the Bill to lack focus.
Ultimately, Ofcom, as the independent regulator, should be trusted to do what is right. The Minister must recognise how unpopular the Bill’s current approach of giving overarching powers to the Secretary of State is. I hope he will go some way to addressing our concerns, which, as I have already said, we are not alone in approaching him with. For those reasons, we cannot support clause 147 as it stands.
Chris Philp
We are introducing a new, groundbreaking regime, and we are trying to strike a balance between the need for regulatory independence of Ofcom and appropriate roles for Parliament and Government. There is a balance to strike there, particularly in an area such as this, which has not been regulated previously. It is a brand-new area, so we do not have decades of cumulated custom and practice that has built up. We are creating this from the ground up—from a blank sheet of paper.
That is why, in establishing this regime, we want to provide a facility for high-level strategic guidance to be given to Ofcom. Of course, that does not infringe on Ofcom’s day-to-day operations; it will continue to do those things itself, in taking decisions on individual enforcement matters and on the details around codes of practice. All those things, of course, remain for Ofcom.
We are very clear that guidance issued under clause 147 is strategic in nature and will not stray into the operational or organisational matters that should properly fall into the exclusive ambit of the independent regulator. There are a number of safeguards in the clause to ensure that the power is exercised in the way that I have just described and does not go too far.
First, I point to the fact that clause 147(8) simply says that
“ OFCOM must have regard to the guidance”.
That is obviously different from a hard-edged statutory obligation for it to follow the guidance in full. Of course, it does mean that Ofcom cannot ignore it completely—I should be clear about that—but it is different from a hard-edged statutory obligation.
There is also the requirement for Ofcom to be consulted, so that its opinions can be known. Of course, being consulted does not mean that the opinions will be followed, but it means that they will be sought and listened to. There are also some constraints on how frequently this strategic guidance can be revised, to ensure that it does not create regulatory uncertainty by being chopped and changed on an unduly frequent basis, which would cause confusion.
Alex Davies-Jones
I will be brief. The clause is incredibly important. It requires the Secretary of State to prepare and lay before Parliament annual reports about their performance in relation to online safety. We fully support such transparency. That is all we want—we want it to go further. That is what we have been trying to say in Committee all day. We agree in principle and therefore have not sought to amend the clause.
Chris Philp
I could not possibly add to that exceptionally eloquent description.
Question put and agreed to.
Clause 148 accordingly ordered to stand part of the Bill.
Clause 149
Review
Question proposed, That the clause stand part of the Bill.
Alex Davies-Jones
As we know, the clause compels the Secretary of State to undertake a review to assess the effectiveness of the regulatory framework. The review will have to be published and laid before Parliament, which we welcome. However, we note the broad time limits on this duty. We have heard repeatedly about the challenges that delays to the Bill’s full implementation will cause, so I urge the Minister to consider that point closely. By and large, though, we absolutely support the clause, especially as the Secretary of State will be compelled to consult Ofcom and other appropriate persons when carrying out its review—something that we have called for throughout scrutiny of the Bill. We only wish that that level of collaboration had been accepted by the Minister on the other clauses. I will not waste time repeating points that I have already made. We support the clause.
Chris Philp
I welcome the shadow Minister’s support for this review clause, which is important. I will not add to her comments.
Question put and agreed to.
Clause 149 accordingly ordered to stand part of the Bill.
Clause 150
Harmful communications offence
Barbara Keeley
That was about as clear as mud, actually, but let us leave it there.
Question put and agreed to.
Clause 150 accordingly ordered to stand part of the Bill.
Clauses 151 to 155 ordered to stand part of the Bill.
Clause 156
Sending etc photograph or film of genitals
Alex Davies-Jones
I beg to move amendment 41, in clause 156, page 131, line 15, at end insert—
“(za) B has not consented for A to share the photograph or film with B, or”.
This amendment makes it an offence to send an image of genitals to another person if the recipient has not given consent to receive the image.
The Chair
With this it will be convenient to discuss amendment 42, in clause 156, page 131, line 20, at end insert—
“(1A) A person consents if the person agrees by choice, and has the freedom and capacity to make that choice.”
This amendment is linked to Amendment 41.
Alex Davies-Jones
With your permission, Ms Rees, I will also speak to clause stand part.
Labour welcomes the clause. We see it as a positive step forward that the Government have committed to creating a new offence in certain circumstances where sending a photograph or film of a person’s genitals to another person will cause distress or humiliation. However, the Government have missed a huge opportunity to accurately capture the problems caused by sharing intimate images online. I will come to that shortly in addressing amendments 41 and 42.
We know that the act of sending unsolicited genital images—cyber-flashing, or sending dick pics—is a huge problem here in the UK. Research from Bumble has shown how disproportionally the issue affects young women. The statistics are shocking and speak for themselves. A whopping 48% of millennial women said that they had been sent an unsolicited sexual image in the last year alone. I must pay tribute to the right hon. Member for Basingstoke, who we all know shared her own experiences of cyber-flashing relatively recently. She is not alone—not in this House or in the country.
I have my own experiences, as do friends, colleagues and even my staff members, and we all share the same concerns about the prevalence of cyber-flashing. The Minister does not need to be reminded of it; he knows of the extent of the issues. We heard compelling evidence only a few weeks ago from Professor Clare McGlynn and Nima Elmi from Bumble, among others.
Labour firmly believes, as Professor McGlynn has outlined, that cyber-flashing is problematic because it is non-consensual conduct of a sexual nature. Distributing these images is not in and of itself wrong, but doing so without the consent of the recipient is. The non-consensual act breaches women’s rights to sexual autonomy, to be treated with dignity and to be free from sexual violence, regardless of the motive of the perpetrator.
We know that men’s motivations for cyber-flashing are varied and overlapping. They include misogyny, causing distress, sexual gratification, humour, boosting status among peers, sexual intimidation, and transactional motivations. Yet there is no evidence that the harms experienced by women are worse when offenders have the specific motivations identified in motive-based proposals, such as causing distress.
For example, a woman may be sent unsolicited penis images while on public transport, making her feel threatened and fearful for her safety, regardless of whether the sender intended to cause her alarm or was simply trying to impress his friends as a bit of banter. That is why the consent approach really is crucial, as I will now discuss in relation to amendments 41 and 42.
Amendment 41 would make it an offence to send an image of genitals to another person if the recipient has not given consent to receive that image. Labour recognises that there are two main options when drafting a new cyber-flashing criminal offence. The first is what we are trying to achieve with these amendments—a comprehensive consent-based offence requiring proof of non-consent. The alternative, as currently proposed by the Law Commission, is far too limited. It offers a motive-based offence, which applies only on proof of specific motives on the part of the offender, such as to cause distress, alarm or humiliation, to get sexual gratification, or to cause distress by being reckless. This is hugely problematic for women and girls across the country, and the Minister must recognise the message this sends to them.
Proving a motive behind an offence as simple as merely sending a photograph is nigh on impossible. If we really want to see systemic change in attitudes to women and girls, we fundamentally should not be creating laws that place the burden on the victim. A consent-based offence, as in our amendments, covers all forms of cyber-flashing, regardless of the motives of the sender. Motive requirements create an unjustified hierarchy of abuses and victims, and they do not reflect victims’ experiences. Requiring proof of specific motives will make investigations and prosecutions more difficult.
We know from police and victims that investigations and prosecutions for sharing sexual images without consent, such as revenge porn, are not taken forward due to similar motive requirements. How, therefore, can the Minister think that the provisions in the Bill related to cyber-flashing go far enough? Will they actually create change? I mentioned on Second Reading our genuine concerns about the levels of misogyny that have become far too normalised across our communities and within our society as a whole.
The consent-based offence provides a much better foundation for education and prevention projects. It sends the message that all sexual activity should be grounded in consent. It better supports education about online activities, with a focus on consent-based practices, and makes clear that any taking or sharing of sexual images without consent is wrong, harmful and criminal. Those are all positives.
The stakeholders are calling for a consent-based approach. The Opposition want the same. Even the Minister’s own Back Benchers can see that the Bill fails to capture and address the real harms women and girls face online. The Minister can likely sense my exasperation. It comes from a place of genuine frustration. I cannot understand how there has not been any movement on this from the Government side.
My final point—and indeed plea—is to urge the Minister to consider what is going on internationally on this issue. He will know that a consent-based cyber-flashing offence has been adopted in Texas and is being debated in other US states. Consent is easily obtained and criminal charges easily avoided. It is important to remember that avoiding being charged with a criminal offence is straightforward. All the sender needs to do is ask, “Would you like to see a picture of my genitals?” It is as simple as that. I am sure even the Minister can agree on that point. I urge him to genuinely consider amendments 41 and 42. There has been no movement from the Minister and no concessions thus far as we have scrutinised the Bill, but he must know that the Bill is far from perfect in its current form.
Kirsty Blackman
I would like to make a couple of comments. The shadow Minister mentioned education and prevention projects, which are key. In Scotland, our kids’ sex, health and relationship education in schools teaches consent from the earliest possible age. That is vital. We have a generation of men who think it is okay to send these images and not seek consent. As the shadow Minister said, the problem is everywhere. So many women have received images that they had no desire to see. They did not ask for them, and they did not consent to receive them, but they get them.
Requiring someone to prove the intent behind the offence is just impossible. It is so unworkable, and that makes it really difficult. This is yet another issue that makes it clear that we need to have reference to violence against women and girls on the face of the Bill. If that were included, we would not be making such a passionate case here. We would already have a code of conduct and assessments that have to take place on the basis of the specific harm to women and girls from such offences. We would not be making the case so forcefully because it would already be covered.
I wish the Minister would take on board how difficult it is for women and girls online, how much of an issue this specific action causes and how much pain and suffering it causes. It would great if the Minister could consider moving somewhat on this issue in order to protect women and girls.
Chris Philp
I thank the Members who have contributed to the debate. Rather like with the provisions in clause 150, which we discussed a few minutes ago, a difficult and delicate balance needs to be struck. We want to criminalise that which should be criminal, but not inadvertently criminalise that which should not be. The legal experts at the Law Commission have been studying the matter and consulting other legal experts for quite some time. As my right hon. Friend the Member for Basingstoke said in her excellent speech, their recommendations have been our starting point.
It is probably worth making one or two points about how the clause works. There are two elements of intention, set out in subsection (1). First, the act of sending has to be intentional; it cannot be done accidentally. I think that is reasonable. Secondly, as set out in subsection (1)(a), there must be an intention to cause the person who sees the image alarm, distress or intimidation.
I understand the point that establishing intent could, in some circumstances, present a higher hurdle. As we discussed in relation to clause 150, we are, separately from this, working on the intimate image abuse offence, which does not require intention to be established; it simply requires lack of consent. I was not aware, until my right hon. Friend mentioned it a few moments ago—she was ahead of me there—that the Law Commission has given a timeframe for coming back. I am not sure whether that implies it will be concomitant with Ministry of Justice agreement or whether that will have to follow, but I am very pleased to hear that there is a timeframe. Clearly, it is an adjacent area to this and it will represent substantial progress.
I understand that it can sometimes be hard to establish intention, but there will be circumstances in which the context of such an incident will often make it clear that there was an intention to cause alarm, distress or humiliation.
Alex Davies-Jones
So he cannot possibly know how it feels to receive one. I appreciate the comments that he is trying to make, and that this is a fine balance, but I do see this specific issue of sending a photograph or film of genitals as black and white: they are sent either with or without consent. It is as simple as that. What other circumstances could there be? Can he give me an example of when one could be sent without the intention to cause distress, harm or intimidation?
Chris Philp
It is a fair question. There might be circumstances in which somebody simply misjudges a situation—has not interpreted it correctly—and ends up committing a criminal offence; stumbling into it almost by accident. Most criminal offences require some kind of mens rea—some kind of intention to commit a criminal offence. If a person does something by accident, without intention, that does not normally constitute a criminal offence. Most criminal offences on the statute book require the person committing the offence to intend to do something bad. If we replace the word “intent” with “without consent”, the risk is that someone who does something essentially by accident will have committed a criminal offence.
I understand that the circumstances in which that might happen are probably quite limited, and the context of the incidents that the hon. Member for Pontypridd and my right hon. Friend the Member for Basingstoke have described would generally support the fact that there is a bad intention, but we have to be a little careful not accidentally to draw the line too widely. If a couple are exchanging images, do they have to consent prior to the exchange of every single image? We have to think carefully about such circumstances before amending the clause.
Chris Philp
I will commit to consider the clause further, as my right hon. Friend has requested. It is important to do so in the context of the Law Commission’s recommendations, but she has pointed to wording in the Law Commission’s original report that could be used to improve the drafting here. I do not want to make a firm commitment to change, but I will commit to considering whether the clause can be improved upon. My right hon. Friend referred to the “likely to cause harm” test, and asked whether recklessness as to whether someone suffers alarm, distress or humiliation could be looked at as a separate element. We need to be careful; if we sever that from sexual gratification, we need to have some other qualification on sexual gratification. We might have sexual gratification with consent, which would be fine. If we severed them, we would have to add another qualification.
It is clear that there is scope for further examination of clause 156. That does not necessarily mean it will be possible to change it, but it is worth examining it further in the light of the comments made by my right hon. Friend. The testimony we heard from witnesses, the testimony of my right hon. Friend and what we heard from the hon. Member for Pontypridd earlier do demonstrate that this is a widespread problem that is hugely distressing and intrusive and that it represents a severe violation. It does need to be dealt with properly.
We need to be cognisant of the fact that in some communities there is a culture of these kinds of pictures being freely exchanged between people who have not met or communicated before—on some dating websites, for example. We need to draft the clause in such a way that it does not inadvertently criminalise those communities—I have been approached by members of those communities who are concerned.
Chris Philp
The hon. Member for Pontypridd says from a sedentary position that they have given consent. The consent is not built into the website’s terms and conditions; it is an assumed social norm for people on those websites. We need to tread carefully and be thoughtful, to ensure that by doing more to protect one group we do not inadvertently criminalise another.
There is a case for looking at the issue again. My right hon. Friend has made the point thoughtfully and powerfully, and in a way that suggests we can stay within the confines of the Law Commission’s advice, while being more thoughtful. I will certainly undertake to go away and do that, in consultation with my right hon. Friend and others.
Alex Davies-Jones
I wholeheartedly agree with the Minister’s comments. This is a gigantic step forward that is long overdue, and we wholeheartedly welcome the new offence being created, but, as he rightly pointed out, it is important that we get this right and that we make the measure as strong as possible so that the legislation causes direct and meaningful change.
To us, the issue is simple: “Do you want to see my genitals, yes or no?” We will push amendment 41 to the vote.
Question put, That the amendment be made.
Alex Davies-Jones
Labour supports clause 159, because it is vital that the Bill includes provisions for Ofcom to issue a penalty notice or confirmation decision when the provider may not be a legal person in the traditional sense. We have repeatedly maintained that it is central to the success of the Bill that, once implemented, it properly and sufficiently gives Ofcom the relevant powers, autonomy and independence to properly pursue providers of regulated services and their wrongdoings.
We recognise the complexity of the service providers’ business models and therefore agree that the Bill must be broad enough to ensure that penalty notices and confirmation decisions can be given, even when the provider may constitute an association, or an organisation between a group of people. Ultimately, as we have made clear, Labour will continue to support giving the regulator the tools required to keep us all safe online.
We have already raised concerns over Ofcom’s independence and the interference of and over-reliance on the Secretary of State’s powers within the Bill as it stands. However, we are in agreement on clause 159 and feel that it provides a vital tool for Ofcom to have at its disposal should the need for a penalty notice or confirmation decision arise. That is why we support the clause and have not sought to amend it.
Government amendment 159, as we know, ensures that if the provider of a service consists of two or more individuals, those individuals are jointly liable to pay a fee demanded under new schedule 2. As I will come on to in my comments on clauses 160 and 161, we welcome the provisions and clarifications around liability for fees when the provider of a service consists of two or more individuals.
As with clause 159, we welcome the clarity of provisions in the Bill that confirm actions to be taken where a group of two or more individuals act together. It is absolutely right that where two or more individuals together are the providers of a regulated service, they should be jointly and severally liable for any duty, requirement or liability to pay a fee.
We also welcome the clarification that that liability and joint responsibility will also apply in the event of a penalty notice or confirmation decision. We believe that these provisions are vital to capturing the true extent of where responsibility should lie, and we hope they will go some way to remedying the hands-off approach that service providers have managed to get away with for too long when it comes to regulation of the internet. We do, however, feel that the Government could have gone further, as we outlined in amendment 50, which we spoke to when we addressed clause 123.
Labour firmly believes that Ofcom’s ability to take action against non-compliance en masse is critical. That is why we welcome clause 160 and will not be seeking to amend it at this stage. We also fundamentally support clause 161, which contains provisions on how joint liability will operate.
We will speak to our concerns about supply chains when we debate a later clause—I believe it is new clause 13 —because it is vital that this Bill captures the challenges around supply chain failures and where responsibility lies. With that in mind, we will support clause 161, with a view to the Minister understanding our broader concerns, which we will address when we debate new clause 13.
Finally, schedule 14 establishes that decisions or notices can be given jointly to both a regulated provider and its parent company. We particularly support the confirmation that all relevant entities must be given the opportunity to make representations when Ofcom seeks to establish joint liability, including on the matters contained in the decision or notice and whether joint liability would be appropriate.
As we have made clear, we see the provisions outlined in this schedule as fundamental to Ofcom’s ability to issue truly meaningful decisions, penalties and notices to multiple parties. The fact that, in this instance, service providers will be jointly liable to comply is key to capturing the extent to which it has been possible to perpetuate harm online for so long. That is why we support the intention behind schedule 14 and have not sought to amend it.
Chris Philp
The shadow Minister has set out clearly the purpose of and intent behind these clauses, and how they work, so I do not think I will add anything. I look forward to our future debate on the new clause.
There is one point of correction that I wish to make, and it relates to a question that the hon. Member for Aberdeen North asked this morning and that is germane to amendment 159. That amendment touches on the arrangements for recouping the set-up costs that Ofcom incurs prior to the Bill receiving Royal Assent. The hon. Member for Aberdeen North asked me over what time period those costs would be collected, and I answered slightly off the cuff. Now I have had a chance to dig through the papers, I will take this opportunity to confirm exactly how that works.
To answer the question a little bit better than I did this morning, the place to go is today’s amendment paper. The relevant provisions are on page 43 of the amendment paper, in paragraph 7(5) of Government new schedule 2, which we will debate later. If we follow the drafting through—this is quite a convoluted trail to follow —it states that the cost can be recouped over a period that is not less than three years and not more than five years. I hope that gives the hon. Member for Aberdeen North a proper answer to her question from this morning, and I hope it provides clarity and points to where in the new schedule the information can be found. I wanted to take the first opportunity to clarify that point.
Beyond that, the hon. Member for Pontypridd has summarised the provisions in this group very well, and I have nothing to add to her comments.
Question put and agreed to.
Clause 159 accordingly ordered to stand part of the Bill.
Clause 160
Individuals providing regulated services: liability
Amendment made: 159, in clause 160, page 133, line 6, after “71” insert
“or Schedule (Recovery of OFCOM’s initial costs)”.—(Chris Philp.)
This amendment ensures that, if the provider of a service consists of two or more individuals, those individuals are jointly liable to pay a fee demanded under NS2.
Clause 160, as amended, ordered to stand part of the Bill.
Clause 161 ordered to stand part of the Bill.
Schedule 14 agreed to.
Clause 162
Information offences: supplementary
Question proposed, That the clause stand part of the Bill.
Alex Davies-Jones
Labour supports the intention behind clause 162, because we believe that only by creating specific offences will the messaging around liability and the overall message about public safety really hit home for those at the top in Silicon Valley. We welcome the clarification on exactly how Ofcom will be able to exercise these important powers, and we support the process of giving notice, confirmation decisions and subsequent penalties. We see the clause as fundamental to the Bill’s overall success, although, as the Minister will recall, we feel that the Bill could go further in addressing broader offences beyond those around information practices. However, that is a debate for another day.
In this clause, we believe that the importance and, indeed, the power of information notices is crystal clear for service providers to see, and Labour fully supports and welcomes that move. That is why we will support clause 162 and have not sought to amend it at this stage. We welcome the clarity in clause 163 around the process that applies when a person relies on a defence in an information offence. We see this clause as sitting alongside current legal precedents and are therefore happy to support it.
We fully support and welcome clause 164. We believe it is central to the entire argument around liability that the Minister knows Labour has been making for some time now. We have heard in Committee evidence sessions some truly compelling insights from people such as Frances Haugen, and we know for certain that companies are prone to covering up information that they know will be received unfavourably.
Alex Davies-Jones
Labour welcomes clause 166, which specifies that references to regulated services and Ofcom’s information-gathering powers apply to services provided from outside the United Kingdom as well as to services provided from within the United Kingdom. While we recognise the challenges around internet regulation in the UK, we live in a global world, and we are pleased that the legislation has been drawn up in a way that will capture services based overseas.
We feel the Bill is lacking in its ability to regulate against content that may have originated from outside the UK. While it is welcome that regulated services based abroad will be within scope, we have concerns that that will do little to capture specific content that may not originate within the UK. We have raised these points at length in previous debates, so I will not dwell on them now, but the Minister knows that the Bill will continue to fall short when it does not capture, for example, child sexual exploitation and abuse content that was filmed and originated abroad. That is a huge loophole, which will allow harmful content to be present and to be perpetuated online well into the future. Although we support clause 166 for now, I urge the Minister to reconsider his view on how all-encompassing the current approach to content can be as he considers his Department’s strategy before Report.
Clause 167 outlines that the information offences in the Bill apply to acts done in the United Kingdom and outside the United Kingdom. We welcome its provisions, but we feel that the Government could go further. We welcome the clarification that it will be possible to prosecute information offences in any part of the UK as if they occurred there. Given the devastating pressures that our legal system already faces thanks to this Government’s cuts and shambolic approach to justice, such flexibility is crucial and a welcome step forward.
Chris Philp
Last week or the week before, we debated extensively the points about the extraterritorial application to protecting children, and I made it clear that the Bill protects people as we would wish it to.
Clause 166 relates to extraterritorial enforceability. It is important to make sure that the duties, enforceable elements and sanctions apply worldwide, reflecting the realities of the internet, and clause 166 specifies that references to regulated services in the Bill include services provided from outside the United Kingdom. That means that services based overseas must also comply, as well as those in the UK, if they reach UK users.
The clause ensures that Ofcom has effective information-gathering powers and can seek information from in-scope companies overseas for the purposes of regulating and enforcing the regime. Obviously, companies such as Facebook are firmly in scope, as hon. Members would expect. The clause makes it clear that Ofcom can request information held outside the UK and interview individuals outside the UK, if that is necessary for its investigations.
Clause 167 explains that the information-related personal criminal offences in the Bill—for example, failing to comply with Ofcom’s information notices—apply to acts done inside and outside the UK. That means that those offences can be criminally prosecuted whether the perpetrator is based in the UK or outside the UK. That will send a clear message to the large global social media firms that no matter where they may be based in the world or where their services may be provided from, we expect them to comply and the enforcement provisions in the Bill will apply to them.
Question put and agreed to.
Clause 166 accordingly ordered to stand part of the Bill.
Clause 167 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Steve Double.)