Online Safety Bill
Tuesday 19th April 2022
(3 years, 9 months ago)
Commons ChamberOnline Safety Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts
The Secretary of State for Digital, Culture, Media and Sport (Ms Nadine Dorries)
I beg to move, That the Bill be now read a Second time.
Given the time and the number of people indicating that they wish to speak, and given that we will have my speech, the shadow Minister’s speech and the two winding-up speeches, there might be 10 minutes left for people to speak. I will therefore take only a couple of interventions and speak very fast in the way I can, being northern.
Almost every aspect of our lives is now conducted via the internet, from work and shopping to keeping up with our friends, family and worldwide real-time news. Via our smartphones and tablets, we increasingly spend more of our lives online than in the real world.
In the past 20 years or so, it is fair to say that the internet has overwhelmingly been a force for good, for prosperity and for progress, but Members on both sides of the House will agree that, as technology advances at warp speed, so have the new dangers this progress presents to children and young people.
Mr Mark Francois (Rayleigh and Wickford) (Con)
My right hon. Friend will know that, last Wednesday, the man who murdered our great friend Sir David Amess was sentenced to a whole-life term. David felt very strongly that we need legislation to protect MPs, particularly female MPs, from vile misogynistic abuse. In his memory, will she assure me that her Bill will honour the spirit of that request?
Ms Dorries
Sir David was a friend to all of us, and he was very much at the forefront of my mind during the redrafting of this Bill over the last few months. I give my right hon. Friend my absolute assurance on that.
Jim Shannon (Strangford) (DUP)
A number of constituents have contacted me over the last few months about eating disorders, particularly anorexia and bulimia, and about bullying in schools. Will the Secretary of State assure me and this House that those concerns will be addressed by this Bill so that my constituents are protected?
Ms Dorries
They will. Inciting people to take their own life or encouraging eating disorders in anorexia chatrooms—all these issues are covered by the Bill.
Several hon. Members rose—
Jonathan Gullis (Stoke-on-Trent North) (Con)
I am grateful to my right hon. Friend, and I thank her for her written communications regarding Angela Stevens, the mother of Brett, who tragically took his own life having been coerced by some of these vile online sites. The Law Commission considered harmful online communications as part of the Bill’s preparation, and one of its recommendations is to introduce a new offence of encouraging or assisting self-harm. I strongly urge my right hon. Friend to adopt that recommendation. Can she say more on that?
Ms Dorries
Yes. Exactly those issues will be listed in secondary legislation, under “legal but harmful”. I will talk about that further in my speech, but “legal but harmful” focuses on some of the worst harmful behaviours. We are talking not about an arbitrary list, but about incitement to encourage people to take their own life and encouraging people into suicide chatrooms—behaviour that is not illegal but which is indeed harmful.
Several hon. Members rose—
Ms Dorries
I am going to whizz through my speech now in order to allow people who have stayed and want to speak to do so.
As the Minister for mental health for two years, too often, I heard stories such as the one just highlighted by my hon. Friend the Member for Stoke-on-Trent North (Jonathan Gullis). We have all sat down with constituents and listened as the worst stories any parents could recount were retold: stories of how 14-year-old girls take their own life after being directed via harmful algorithms into a suicide chatroom; and of how a child has been bombarded with pro-anorexia content, or posts encouraging self-harm or cyber-bullying.
School bullying used to stop at the school gate. Today, it accompanies a child home, on their mobile phone, and is lurking in the bedroom waiting when they switch on their computer. It is the last thing a bullied child reads at night before they sleep and the first thing they see when they wake in the morning. A bullied child is no longer bullied in the playground on school days; they are bullied 24 hours a day, seven days a week. Childhood innocence is being stolen at the click of a button. One extremely worrying figure from 2020 showed that 80% of 12 to 15-year-olds had at least one potentially harmful online experience in the previous year.
We also see this every time a footballer steps on to the pitch, only to be subjected to horrific racism online, including banana and monkey emojis. As any female MP in this House will tell you, a woman on social media—I say this from experience—faces a daily barrage of toxic abuse. It is not criticism—criticism is a fair game—but horrific harassment and serious threats of violence. Trolls post that they hope we get raped or killed, urge us to put a rope around our neck, or want to watch us burn in a car alive—my own particular experience.
All this behaviour is either illegal or, almost without exception, explicitly banned in a platform’s terms and conditions. Commercially, it has to be. If a platform stated openly that it allowed such content on its sites, which advertisers, its financial lifeblood, would knowingly endorse and advertise on it? Which advertisers would do that? Who would openly use or allow their children to use sites that state that they allow illegal and harmful activity? None, I would suggest, and platforms know that. Yet we have almost come to accept this kind of toxic behaviour and abuse as part and parcel of online life. We have factored online abuse and harm into our daily way of life, but it should not and does not have to be this way.
This Government promised in their manifesto to pass legislation to tackle these problems and to make the UK the
“safest place in the world to be online”
especially for children. We promised legislation that would hold social media platforms to the promises they have made to their own users—their own stated terms and conditions—promises that too often are broken with no repercussions. We promised legislation that would bring some fundamental accountability to the online world. That legislation is here in the form of the ground- breaking Online Safety Bill. We are leading the way and free democracies across the globe are watching carefully to see how we progress this legislation.
The Bill has our children’s future, their unhindered development and their wellbeing at its heart, while at the same time providing enhanced protections for freedom of speech. At this point, I wish to pay tribute to my predecessors, who have each trodden the difficult path of balancing freedom of speech and addressing widespread harms, including my immediate predecessor and, in particular, my hon. Friend the Member for Gosport (Dame Caroline Dinenage), who worked so hard, prior to my arrival in the Department for Digital, Culture, Media and Sport, with stakeholders and platforms, digging in to identify the scope of the problem.
Let me summarise the scope of the Bill. We have reserved our strongest measures in this legislation for children. For the first time, platforms will be required under law to protect children and young people from all sorts of harm, from the most abhorrent child abuse to cyber-bullying and pornography. Tech companies will be expected to use every possible tool to do so, including introducing age-assurance technologies, and they will face severe consequences if they fail in the most fundamental of requirements to protect children. The bottom line is that, by our passing this legislation, our youngest members of society will be far safer when logging on. I am so glad to see James Okulaja and Alex Holmes from The Diana Award here today, watching from the Gallery as we debate this groundbreaking legislation. We have worked closely with them as we have developed the legislation, as they have dedicated a huge amount of their time to protecting children from online harms. This Bill is for them and those children.
The second part of the Bill makes sure that platforms design their services to prevent them from being abused by criminals. When illegal content does slip through the net, such as child sex abuse and terrorist content, they will need to have effective systems and processes in place to quickly identify it and remove it from their sites. We will not allow the web to be a hiding place or a safe space for criminals. The third part seeks to force the largest social media platforms to enforce their own bans on racism, misogyny, antisemitism, pile-ons and all sorts of other unacceptable behaviour that they claim not to allow but that ruins life in practice. In other words, we are just asking the largest platforms to simply do what they say they will do, as we do in all good consumer protection measures in any other industry. If platforms fail in any of those basic responsibilities, Ofcom will be empowered to pursue a range of actions against them, depending on the situation, and, if necessary, to bring down the full weight of the law upon them.
Several hon. Members rose—
Ms Dorries
I will take just two more interventions and that will be it, otherwise people will not have a chance to speak.
Sir John Hayes (South Holland and The Deepings) (Con)
I am very grateful to my right hon. Friend for giving way. The internet giants that run the kind of awful practices that she has described have for too long been unaccountable, uncaring and unconscionable in the way they have fuelled every kind of spite and fed every kind of bigotry. Will she go further in this Bill and ensure that, rather like any other publisher, if those companies are prepared to allow anonymous posts, they are held accountable for those posts and subject to the legal constraints that a broadcaster or newspaper would face?
Ms Dorries
These online giants will be held accountable to their own terms and conditions. They will be unable any longer to allow illegal content to be published, and we will also be listing in secondary legislation offences that will be legal but harmful. We will be holding those tech giants to account.
Munira Wilson (Twickenham) (LD)
I thank the Secretary of State for giving way. She talked about how this Bill is going to protect children much more, and it is a welcome step forward. However, does she accept that there are major gaps in this Bill? For instance, gaming is not covered. It is not clear whether things such as virtual reality and the metaverse are going to be covered. [Interruption.] It is not clear and all the experts will tell us that. The codes of practice in the Bill are only recommended guidance; they are not mandatary and binding on companies. That will encourage a race to the bottom.
Ms Dorries
The duties are mandatory; it is the Online Safety Bill and the metaverse is included in the Bill. Not only is it included, but, moving forward, the provisions in the Bill will allow us to move swiftly with the metaverse and other things. We did not even know that TikTok existed when this Bill started its journey. These provisions will allow us to move quickly to respond.
Several hon. Members rose—
Damian Green (Ashford) (Con)
I am grateful to my right hon. Friend for giving way. One of the most important national assets that needs protecting in this Bill and elsewhere is our reputation for serious journalism. Will she therefore confirm that, as she has said outside this House, she intends to table amendments during the passage of the Bill that will ensure that platforms and search engines that have strategic market status protect access to journalism and content from recognised news publishers, ensuring that it is not moderated, restricted or removed without notice or right of appeal, and that those news websites will be outside the scope of the Bill?
Daniel Kawczynski (Shrewsbury and Atcham) (Con)
Will my right hon. Friend give way?
Ms Dorries
No, I have to continue.
Not only will the Bill protect journalistic content, democratic content and democratic free speech, but if one of the tech companies wanted to take down journalistic content, the Bill includes a right of appeal for journalists, which currently does not exist. We are doing further work on that to ensure that content remains online while the appeal takes place. The appeal process has to be robust and consistent across the board for all the appeals that take place. We have already done more work on that issue in this version of the Bill and we are looking to do more as we move forward.
As I have said, we will not allow the web to be a hiding place or safe space for criminals and when illegal content does slip through the net—such as child sex abuse and terrorist content— online platforms will need to have in place effective systems and processes to quickly identify that illegal content and remove it from their sites.
The third measure will force the largest social media platforms to enforce their own bans on racism, misogyny, antisemitism, pile-ons and all the other unacceptable behaviours. In other words, we are asking the largest platforms to do what they say they will do, just as happens with all good consumer-protection measures in any other industry. Should platforms fail in any of their basic responsibilities, Ofcom will be empowered to pursue a range of actions against them, depending on the situation, and, if necessary, to bring down upon them the full weight of the law. Such action includes searching platforms’ premises and confiscating their equipment; imposing huge fines of up to 10% of their global turnover; pursuing criminal sanctions against senior managers who fail to co-operate; and, if necessary, blocking their sites in the UK.
We know that tech companies can act very quickly when they want to. Last year, when an investigation revealed that Pornhub allowed child sexual exploitation and abuse imagery to be uploaded to its platform, Mastercard and Visa blocked the use of their cards on the site. Lo and behold, threatened with the prospect of losing a huge chunk of its profit, Pornhub suddenly removed nearly 10 million child sexual exploitation videos from its site overnight. These companies have the tools but, unfortunately, as they have shown time and again, they need to be forced to use them. That is exactly what the Bill will do.
Before I move on, let me point out something very important: this is not the same Bill as the one published in draft form last year. I know that Members throughout the House are as passionate as I am about getting this legislation right, and I had lots of constructive feedback on the draft version of the Bill. I have listened carefully to all that Members have had to say throughout the Bill’s process, including by taking into account the detailed feedback from the Joint Committee, the Digital, Culture, Media and Sport Committee and the Petitions Committee. They have spent many hours considering every part of the Bill, and I am extremely grateful for their dedication and thorough recommendations on how the legislation could be improved.
As a result of that feedback process, over the past three months or so I have strengthened the legislation in a number of important ways. There were calls for cyber-flashing to be included; cyber-flashing is now in the Bill. There were calls to ensure that the legislation covered all commercial pornography sites; in fact, we have expanded the Bill’s scope to include every kind of provider of pornography. There were concerns about anonymity, so we have strengthened the Bill so that it now requires the biggest tech platforms to offer verification and empowerment tools for adult users, allowing people to block anonymous trolls from the beginning.
I know that countless MPs are deeply concerned about how online fraud—particularly scam ads—has proliferated over the past few years. Under the new version of the Bill, the largest and highest-risk companies—those that stand to make the most profit—must tackle scam ads that appear on their services.
We have expanded the list of priority offences named on the face of the legislation to include not just terrorism and child abuse imagery but revenge porn, fraud, hate crime, encouraging and assisting suicide, and organised immigration crime, among other offences.
If anyone doubted our appetite to go after Silicon Valley executives who do not co-operate with Ofcom, they will see that we have strengthened the Bill so that the criminal sanctions for senior managers will now come into effect as soon as possible after Royal Assent— I am talking weeks, not years. We have expanded the things for which those senior managers will be criminally liable to cover falsifying data, destroying data and obstructing Ofcom’s access to their premises.
In addition to the regulatory framework in the Bill that I have described, we are creating three new criminal offences. While the regulatory framework is focused on holding companies to account, the criminal offences will be focused on individuals and the way people use and abuse online communications. Recommended by the Law Commission, the offences will address coercive and controlling behaviour by domestic abusers; threats to rape, kill or inflict other physical violence; and the sharing of dangerous disinformation deliberately to inflict harm.
This is a new, stronger Online Safety Bill. It is the most important piece of legislation that I have ever worked on and it has been a huge team effort to get here. I am confident that we have produced something that will protect children and the most vulnerable members of society while being flexible and adaptable enough to meet the challenges of the future.
Let me make something clear in relation to freedom of speech. Anyone who has actually read the Bill will recognise that its defining focus is the tackling of serious harm, not the curtailing of free speech or the prevention of adults from being upset or offended by something they have seen online. In fact, along with countless others throughout the House, I am seriously concerned about the power that big tech has amassed over the past two decades and the huge influence that Silicon Valley now wields over public debate.
We in this place are not the arbiters of free speech. We have left it to unelected tech executives on the west coast to police themselves. They decide who is and who is not allowed on the internet. They decide whose voice should be heard and whose should be silenced—whose content is allowed up and what should be taken down. Too often, their decisions are arbitrary and inconsistent. We are left, then, with a situation in which the president of the United States can be banned by Twitter while the Taliban is not; in which talkRADIO can be banned by YouTube for 12 hours; in which an Oxford academic, Carl Heneghan, can be banned by Twitter; or in which an article in The Mail on Sunday can be plastered with a “fake news” label—all because they dared to challenge the west coast consensus or to express opinions that Silicon Valley does not like.
It is, then, vital that the Bill contains strong protections for free speech and for journalistic content. For the first time, under this legislation all users will have an official right to appeal if they feel their content has been unfairly removed. Platforms will have to explain themselves properly if they remove content and will have special new duties to protect journalistic content and democratically important content. They will have to keep those new duties in mind whenever they set their terms and conditions or moderate any content on their sites. I emphasise that the protections are new. The new criminal offences update section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003, which were so broad that they interfered with free speech while failing to address seriously harmful consequences.
Without the Bill, social media companies would be free to continue to arbitrarily silence or cancel those with whom they do not agree, without any need for explanation or justification. That situation should be intolerable for anyone who values free speech. For those who quite obviously have not read the Bill and say that it concedes power to big tech companies, I have this to say: those big tech companies have all the power in the world that they could possibly want, right now. How much more power could we possibly concede?
That brings me to my final point. We now face two clear options. We could choose not to act and leave big tech to continue to regulate itself and mark its own homework, as it has been doing for years with predictable results. We have already seen that too often, without the right incentives, tech companies will not do what is needed to protect their users. Too often, their claims about taking steps to fix things are not backed up by genuine actions.
I can give countless examples from the past two months alone of tech not taking online harm and abuse seriously, wilfully promoting harmful algorithms or putting profit before people. A recent BBC investigation showed that women’s intimate pictures were being shared across the platform Telegram to harass, shame and blackmail women. The BBC reported 100 images to Telegram as pornography, but 96 were still accessible a month later. Tech did not act.
Twitter took six days to suspend the account of rapper Wiley after his disgusting two-day antisemitic rant. Just last week, the Centre for Countering Digital Hate said that it had reported 253 accounts to Instagram as part of an investigation into misogynistic abuse on the platform, but almost 90% remained active a month later. Again, tech did not act.
Remember: we have been debating these issues for years. They were the subject of one of my first meetings in this place in 2005. During that time, things have got worse, not better. If we choose the path of inaction, it will be on us to explain to our constituents why we did nothing to protect their children from preventable risks, such as grooming, pornography, suicide content or cyber-bullying. To those who say protecting children is the responsibility of parents, not the job of the state, I would quote the 19th-century philosopher John Stuart Mill, one of the staunchest defenders of individual freedom. He wrote in “On Liberty” that the role of the state was to fulfil the responsibility of the parent in order to protect a child where a parent could not. If we choose not to act, in the years to come we will no doubt ask ourselves why we did not act to impose fundamental online protections.
However, we have another option. We can pass this Bill and take huge steps towards tackling some of the most serious forms of online harm: child abuse, terrorism, harassment, death threats, and content that is harming children across the UK today. We could do what John Stuart Mill wrote was the core duty of Government. The right to self-determination is not unlimited. An action that results in doing harm to another is not only wrong, but wrong enough that the state can intervene to prevent that harm from occurring. We do that in every other part of our life. We erect streetlamps to make our cities and towns safer. We put speed limits on our roads and make seatbelts compulsory. We make small but necessary changes to protect people from grievous harm. Now it is time to bring in some fundamental protections online.
We have the legislation ready right now in the form of the Online Safety Bill. All we have to do is pass it. I am proud to commend the Bill to the House.
Several hon. Members rose—
Madam Deputy Speaker (Dame Eleanor Laing)
Order. Before I call the shadow Secretary of State, it will be obvious to the House that we have approximately one hour for Back-Bench contributions and that a great many people want to speak. I warn colleagues that not everybody will have the opportunity and that there will certainly be a time limit, which will probably begin at five minutes.
Lucy Powell (Manchester Central) (Lab/Co-op)
Thank you, Madam Deputy Speaker. It has been a busy day, and I will try to keep my remarks short. It is a real shame that the discussion of an important landmark Bill, with so many Members wanting to contribute, has been squeezed into such a tiny amount of time.
Labour supports the principles of the Online Safety Bill. There has been a wild west online for too long. Huge platforms such as Facebook and Google began as start-ups but now have huge influence over almost every aspect of our lives: how we socialise and shop, where we get our news and views, and even the outcomes of elections and propaganda wars. There have been undoubted benefits, but the lack of regulation has let harms and abuses proliferate. From record reports of child abuse to soaring fraud and scams, from racist tweets to Russia’s disinformation campaigns, there are too many harms that, as a society, we have been unable or unwilling to address.
There is currently no regulator. However, neither the Government nor silicon valley should have control over what we can say and do online. We need strong, independent regulation.
Dan Carden
I am grateful. The Secretary of State talked about getting the tech giants to follow their own rules, but we know from Frances Haugen, the Facebook whistleblower, that companies were driving children and adults to harmful content, because it increased engagement. Does that not show that we must go even further than asking them to follow their own rules?
Lucy Powell
I very much agree with my hon. Friend, and I will come on to talk about that shortly.
The Online Safety Bill is an important step towards strong, independent regulation. We welcome the Bill’s overall aim: the duty of care framework based on the work of the Carnegie Trust. I agree with the Secretary of State that the safety of children should be at the heart of this regulation. The Government have rightly now included fraud, online pornography and cyber-flashing in the new draft of the Bill, although they should have been in scope all along.
Lucy Powell
I am not going to give way, sorry.
Before I get onto the specifics, I will address the main area of contention: the balance between free speech and regulation, most notably expressed via the “legal but harmful” clauses.
Christian Wakeford
I thank my hon. Friend. The Government have set out the priority offences in schedule 7 to the Bill, but legal harms have clearly not been specified. Given the torrent of racist, antisemitic and misogynistic abuse that grows every single day, does my hon. Friend know why the Bill has not been made more cohesive with a list of core legal harms, allowing for emerging threats to be dealt with in secondary legislation?
Lucy Powell
I will come on to some of those issues. My hon. Friend makes a valid point.
I fear the Government’s current solution to the balance between free speech and regulation will please no one and takes us down an unhelpful rabbit hole. Some believe the Bill will stifle free speech, with platforms over-zealously taking down legitimate political and other views. In response, the Government have put in what they consider to be protections for freedom of speech and have committed to setting out an exhaustive list of “legal but harmful” content, thus relying almost entirely on a “take down content” approach, which many will still see as Government overreach.
On the other hand, those who want harmful outcomes addressed through stronger regulation are left arguing over a yet-to-be-published list of Government-determined harmful content. This content-driven approach moves us in the wrong direction away from the “duty of care” principles the Bill is supposed to enshrine. The real solution is a systems approach based on outcomes, which would not only solve the free speech question, but make the Bill overall much stronger.
What does that mean in practice? Essentially, rather than going after individual content, go after the business models, systems and policies that drive the impact of such harms—[Interruption.] The Minister for Security and Borders, the right hon. Member for East Hampshire (Damian Hinds), says from a sedentary position that that is what the Bill does, but none of the leading experts in the field think the same. He should talk to some of them before shouting at me.
The business models of most social media companies are currently based on engagement, as my hon. Friend the Member for Liverpool, Walton (Dan Carden) outlined. The more engagement, the more money they make, which rewards controversy, sensationalism and fake news. A post containing a racist slur or anti-vax comment that nobody notices, shares or reads is significantly less harmful than a post that is quickly able to go viral. A collective pile-on can have a profoundly harmful effect on the young person on the receiving end, even though most of the individual posts would not meet the threshold of harmful.
Matt Rodda (Reading East) (Lab)
Will my hon. Friend give way on that point?
Lucy Powell
I will not, sorry. Facebook whistleblower Frances Haugen, who I had the privilege of meeting, cited many examples to the Joint Committee on the draft Online Safety Bill of Facebook’s models and algorithms making things much worse. Had the Government chosen to follow the Joint Committee recommendations for a systems-based approach rather than a content-driven one, the Bill would be stronger and concerns about free speech would be reduced.
Lucy Powell
I am sorry, but too many people want to speak. Members should talk to their business managers, who have cut—[Interruption.] I know the hon. Gentleman was Chair of the Committee—[Interruption.]
Madam Deputy Speaker (Dame Eleanor Laing)
Order. The hon. Lady is not giving way. Let us get on with the debate.
Lucy Powell
The business managers have failed everybody on both sides given the time available.
A systems-based approach also has the benefit of tackling the things that platforms can control, such as how content spreads, rather than what they cannot control, such as what people post. We would avoid the cul-de-sac of arguing over the definitions of what content is or is not harmful, and instead go straight to the impact. I urge the Government to adopt the recommendations that have been made consistently to focus the Bill on systems and models, not simply on content.
Turning to other aspects of the Bill, key issues with its effectiveness remain. The first relates to protecting children. As any parent will know, children face significant risks online, from poor body image, bullying and sexist trolling to the most extreme grooming and child abuse, which is, tragically, on the rise. This Bill is an important opportunity to make the internet a safe place for children. It sets out duties on platforms to prevent children from encountering illegal, harmful or pornographic content. That is all very welcome.
However, despite some of the Government’s ambitious claims, the Bill still falls short of fully protecting children. As the National Society for the Prevention of Cruelty to Children argues, the Government have failed to grasp the dynamics of online child abuse and grooming—[Interruption.] Again, I am being heckled from the Front Bench, but if Ministers engage with the children’s charities they will find a different response. For example—[Interruption.] Yes, but they are not coming out in support of the Bill, are they? For example, it is well evidenced that abusers will often first interact with children on open sites and then move to more encrypted platforms. The Government should require platforms to collaborate to reduce harm to children, prevent abuse from being displaced and close loopholes that let abusers advertise to each other in plain sight.
The second issue is illegal activity. We can all agree that what is illegal offline should be illegal online, and all platforms will be required to remove illegal content such as terrorism, child sex abuse and a range of other serious offences. It is welcome that the Government have set out an expanded list, but they can and must go further. Fraud was the single biggest crime in the UK last year, yet the Business Secretary dismissed it as not affecting people’s everyday lives.
The approach to fraud in this Bill has been a bit like the hokey-cokey: the White Paper said it was out, then it was in, then it was out again in the draft Bill and finally it is in again, but not for the smaller sites or the search services. The Government should be using every opportunity to make it harder for scammers to exploit people online, backed up by tough laws and enforcement. What is more, the scope of this Bill still leaves out too many of the Law Commission’s recommendations of online crimes.
The third issue is disinformation. The war in Ukraine has unleashed Putin’s propaganda machine once again. That comes after the co-ordinated campaign by Russia to discredit the truth about the Sergei Skripal poisonings. Many other groups have watched and learned: from covid anti-vaxxers to climate change deniers, the internet is rife with dangerous disinformation. The Government have set up a number of units to tackle disinformation and claim to be working with social media companies to take it down. However, that is opaque and far from optimal. The only mention of disinformation in the Bill is that a committee should publish a report. That is far from enough.
Returning to my earlier point, it is the business models and systems of social media companies that create a powerful tool for disinformation and false propaganda to flourish. Being a covid vaccine sceptic is one thing, but being able to quickly share false evidence dressed up as science to millions of people within hours is a completely different thing. It is the power of the platform that facilitates that, and it is the business models that encourage it. This Bill hardly begins to tackle those societal and democratic harms.
The fourth issue is online abuse. From racism to incels, social media has become a hotbed for hate. I agree with the Secretary of State that that has poisoned public life. I welcome steps to tackle anonymous abuse. However, we still do not know what the Government will designate as legal but harmful, which makes it very difficult to assess whether the Bill goes far enough, or indeed too far. I worry that those definitions are left entirely to the Secretary of State to determine. A particularly prevalent and pernicious form of online hate is misogyny, but violence against women and girls is not mentioned at all in the Bill—a serious oversight.
The decision on which platforms will be regulated by the Bill is also arbitrary and flawed. Only the largest platforms will be required to tackle harmful content, yet smaller platforms, which can still have a significant, highly motivated, well-organised and particularly harmful user base, will not. Ofcom should regulate based on risk, not just on size.
The fifth issue is that the regulator and the public need the teeth to take on the big tech companies, with all the lawyers they can afford. It is a David and Goliath situation. The Bill gives Ofcom powers to investigate companies and fine them up to 10% of their turnover, and there are some measures to help individual users. However, if bosses in Silicon Valley are to sit up and take notice of this Bill, it must go further. It should include stronger criminal liability, protections for whistleblowers, a meaningful ombudsman for individuals, and a route to sue companies through the courts.
The final issue is future-proofing, which we have heard something about already. This Bill is a step forward in dealing with the likes of Twitter, Facebook and Instagram—although it must be said that many companies have already begun to get their house in order ahead of any legislation—but it will have taken nearly six years for the Bill to appear on the statute book.
Since the Bill was first announced, TikTok has emerged on the scene, and Facebook has renamed itself Meta. The metaverse is already posing dangers to children, with virtual reality chat rooms allowing them to mix freely with predatory adults. Social media platforms are also adapting their business models to avoid regulation; Twitter, for example, says that it will decentralise and outsource moderation. There is a real danger that when the Bill finally comes into effect, it will already be out of date. A duty of care approach, focused on outcomes rather than content, would create a much more dynamic system of regulation, able to adapt to new technologies and platforms.
In conclusion, social media companies are now so powerful and pervasive that regulating them is long overdue. Everyone agrees that the Bill should reduce harm to children and prevent illegal activity online, yet there are serious loopholes, as I have laid out. Most of all, the focus on individual content rather than business models, outcomes and algorithms will leave too many grey areas and black spots, and will not satisfy either side in the free speech debate.
Despite full prelegislative scrutiny, the Government have been disappointingly reluctant to accept those bigger recommendations. In fact, they are going further in the wrong direction. As the Bill progresses through the House, we will work closely with Ministers to improve and strengthen it, to ensure that it truly becomes a piece of world-leading legislation.
Several hon. Members rose—
Madam Deputy Speaker (Dame Eleanor Laing)
We will begin with a time limit of five minutes, but that is likely to reduce.
Julian Knight (Solihull) (Con)
Some colleagues have been in touch with me to ask my view on one overriding matter relating to this Bill: does it impinge on our civil liberties and our freedom of speech? I say to colleagues that it does neither, and I will explain how I have come to that conclusion.
In the mid-1990s, when social media and the internet were in their infancy, the forerunners of the likes of Google scored a major win in the United States. Effectively, they got the US Congress to agree to the greatest “get out of jail free” card in history: namely, to agree that social media platforms are not publishers and are not responsible for the content they carry. That has led to a huge flowering of debate, knowledge sharing and connections between people, the likes of which humanity has never seen before. We should never lose sight of that in our drive to fairly regulate this space. However, those platforms have also been used to cause great harm in our society, and because of their “get out of jail free” card, the platforms have not been accountable to society for the wrongs that are committed through them.
That is quite simplistic. I emphasise that as time has gone by, social media platforms have to some degree recognised that they have responsibilities, and that the content they carry is not without impact on society—the very society that they make their profits from, and that nurtured them into existence. Content moderation has sprung up, but it has been a slow process. It is only a few years ago that Google, a company whose turnover is higher than the entire economy of the Netherlands, was spending more on free staff lunches than on content moderation.
Content moderation is decided by algorithms, based on terms and conditions drawn up by the social media companies without any real public input. That is an inadequate state of affairs. Furthermore, where platforms have decided to act, there has been little accountability, and there can be unnecessary takedowns, as well as harmful content being carried. Is that democratic? Is it transparent? Is it right?
These masters of the online universe have a huge amount of power—more than any industrialist in our history—without facing any form of public scrutiny, legal framework or, in the case of unwarranted takedowns, appeal. I am pleased that the Government have listened in part to the recommendations published by the Digital, Culture, Media and Sport Committee, in particular on Parliament’s being given control through secondary legislation over legal but harmful content and its definition—an important safeguard for this legislation. However, the Committee and I still have queries about some of the Bill’s content. Specifically, we are concerned about the risks of cross-platform grooming and bread- crumbing—perpetrators using seemingly innocuous content to trap a child into a sequence of abuse. We also think that it is a mistake to focus on category 1 platforms, rather than extending the provisions to other platforms such as Telegram, which is a major carrier of disinformation. We need to recalibrate to a more risk-based approach, rather than just going by the numbers. These concerns are shared by charities such as the National Society for the Prevention of Cruelty to Children, as the hon. Member for Manchester Central (Lucy Powell) said.
On a systemic level, consideration should be given to allowing organisations such as the Internet Watch Foundation to identify where companies are failing to meet their duty of care, in order to prevent Ofcom from being influenced and captured by the heavy lobbying of the tech industry. There has been reference to the lawyers that the tech industry will deploy. If we look at any newspaper or LinkedIn, we see that right now, companies are recruiting, at speed, individuals who can potentially outgun regulation. It would therefore be sensible to bring in outside elements to provide scrutiny, and to review matters as we go forward.
On the culture of Ofcom, there needs to be greater flexibility. Simply reacting to a large number of complaints will not suffice. There needs to be direction and purpose, particularly with regard to the protection of children. We should allow for some forms of user advocacy at a systemic level, and potentially at an individual level, where there is extreme online harm.
On holding the tech companies to account, I welcome the sanctions regime and having named individuals at companies who are responsible. However, this Bill gives us an opportunity to bring about real culture change, as has happened in financial services over the past two decades. During Committee, the Government should actively consider the suggestion put forward by my Committee—namely, the introduction of compliance officers to drive safety by design in these companies.
Finally, I have concerns about the definition of “news publishers”. We do not want Ofcom to be effectively a regulator or a licensing body for the free press. However, I do not want in any way to do down this important and improved Bill. I will support it. It is essential. We must have this regulation in place.
John Nicolson (Ochil and South Perthshire) (SNP)
Thank you, Madam Deputy Speaker, but I was under the impression that I was to wind up for my party, rather than speaking at this juncture.
Madam Deputy Speaker
If the hon. Gentleman would prefer to save his slot until later—
John Nicolson
I would, Madam Deputy Speaker, if that is all right with you.
Madam Deputy Speaker
Then we shall come to that arrangement. I call Dame Margaret Hodge.
Dame Margaret Hodge (Barking) (Lab)
Thank you, Madam Deputy Speaker. I hope that I will take only three minutes.
The human cost of abuse on the internet is unquantifiable—from self-harm to suicide, grooming to child abuse, and racism to misogyny. A space we thought gave the unheard a legitimate voice has become a space where too many feel forced to stay offline. As a Jewish female politician online, I have seen my identities perversely tied together to discredit my character and therefore silence my voice. I am regularly accused of being a “Zionist hag”, a “paedophile” and a “Nazi”. But this is not just about politicians. We all remember the tsunami of racism following the Euros, and we know women are targeted more online than men. Social media firms will not tackle this because their business model encourages harmful content. Nasty content attracts more traffic; more traffic brings more advertising revenue; and more revenue means bigger profits. Legislation is necessary to make the social media firms act. However, this Bill will simply gather dust if Ofcom and the police remain underfunded. The “polluter pays” principle—that is, securing funding through a levy on the platforms—would be much fairer than taxpayers picking up the bill for corporate failures.
I cherish anonymity for whistleblowers and domestic violence victims—it is vital—but when it is used as a cloak to harm others, it should be challenged. The Government’s halfway measure allows users to choose to block anonymous posts by verifying their own identity. That ignores police advice not to block abusive accounts, as those accounts help to identify genuine threats to individuals, and it ignores the danger of giving platforms the power to verify identities. We should think about the Cambridge Analytica scandal. Surely a third party with experience in unique identification should carry out checks on users. Then we all remain anonymous to platforms, but can be traced by law enforcement if found guilty of harmful abuse. We can then name and shame offenders.
On director liability, fines against platforms become a business cost and will not change behaviour, so personal liability is a powerful deterrent. However, enforcing this liability only when a platform fails to supply information to Ofcom is feeble. Directors must be made liable for breaching safety duties.
Finally, as others have said, most regulations apply only to category 1 platforms. Search engines fall through the cracks; BitChute, Gab, 4chan—all escape, but as we saw in the attacks on Pittsburgh’s synagogue and Christchurch’s mosque, all these platforms helped to foster those events. Regulation must be based on risk, not size. Safety should be embedded in any innovative products, so concern about over-regulating innovation is misplaced. This is the beginning of a generational change. I am grateful to Ministers, because I do think they have listened. If they continue to listen, we can make Britain the safest place online.
Mr John Whittingdale (Maldon) (Con)
This Bill is a groundbreaking piece of legislation, and we are one of the first countries to attempt to bring in controls over content online. I therefore share the view of the hon. Member for Manchester Central (Lucy Powell) that it is a great pity that its Second Reading was scheduled for a day when there is so much other business.
The Bill has been a long time in the preparation. I can remember chairing an inquiry of the Culture, Media and Sport Committee in 2008 on the subject of harmful content online. Since then, we have had a Green Paper, a White Paper, a consultation, a draft Bill, a Joint Committee, and several more Select Committee inquiries. It is important that we get this right, and the Bill has grown steadily, as the Secretary of State outlined. I do not need to add to the reasons why it is important that we control content and protect vulnerable people from online content that is harmful to them.
There are two areas where I want to express a word of caution. First, as the Under-Secretary, my hon. Friend the Member for Croydon South (Chris Philp), is very much aware, the Government have an ambition to make the United Kingdom the tech capital of the world. We have been incredibly successful in attracting investment. He will know better than I that the tech industry in Britain is now worth over $1 trillion, and that we have over 100 unicorns, but the Bill creates uncertainty, mainly because so much is subject to secondary legislation and not spelled out in detail in the Bill. This will stifle innovation and growth.
It is fairly obvious which are the main companies that will fall into the category 1 definition. We are told that there may be some 15 to 20. Some of them are certainly obvious. However, I share the view that this needs to be determined more by risk than by reach. A company does not necessarily pose a significant risk simply because it is large. Companies such as Tripadvisor, eBay and Airbnb, which, on the size criteria, might fall within scope of category 1, should not do so. I hope that the Secretary of State and the Minister can say more about the precise definitions that will determine categories. This is more serious for the category 2 companies; it is estimated that some 25,000 may fall within scope. It is not clear precisely what the obligations on them will be, and that too is causing a degree of uncertainty. It is also unclear whether some parts of a large company with several businesses, such as Amazon, would be in category 1 or category 2, or what would happen if companies grow. Could they, for instance, be re-categorised from 1 to 2? These concerns are being raised by the tech industry, and I hope that my hon. Friend the Minister will continue to talk to techUK, to allay those fears.
The second issue, as has been rightly identified, is the effect on freedom of speech. As has been described, tech platforms already exercise censorship. At the moment, they exercise their own judgment as to what is permissible and what is not, and we have had examples such as YouTube taking down the talkRadio channel. I spent a great deal of time talking to the press and media about the special protections that journalism needs, and I welcome the progress that has been made in the Bill. It is excellent that journalistic content will be put in a special category. I repeat the question asked by my right hon. Friend the Member for Ashford (Damian Green). The Secretary of State made some very welcome comments on, I think, “This Morning” about the introduction of an additional protection so that, if a journalist’s shared content were removed from an online platform, they would need to be informed and able to appeal. That may require additional amendments to the Bill, so perhaps the Minister could say when we are likely to see those.
There is also the concern raised by the periodical publishers that specialist magazines appear to be outside the protection of journalistic content. I hope that that can be addressed, because there are publications that deserve the same level of protection.
There is a wider concern about freedom of speech. The definition “legal but harmful” raises real concerns, particularly given that it is left open to subsequent secondary legislation to set out exactly what the categories will be. There are also widespread concerns that we need to avoid, at all costs, setting a precedent that may be used by others who are more keen to censor discussion online. In particular, clause 103(2)(b) relates to messaging services and can require Ofcom to use accredited technology to identify CSEA material. The Minister will be aware that that matter is also causing concern.
Darren Jones (Bristol North West) (Lab)
In the interest of time, I will just pose a number of questions, which I hope the Minister might address in summing up. The first is about the scope of the Bill. The Joint Committee of which I was a member recommended that the age-appropriate design code, which is very effectively used by the Information Commissioner, be used as a benchmark in the Bill, so that any services accessed or likely to be accessed by children are regulated for safety. I do not understand why the Government rejected that suggestion, and I would be pleased to hear from the Minister why they did so.
Secondly, the Bill delegates lots of detail to statutory instruments, codes of practice from the regulator, or later decisions by the Secretary of State. Parliament must see that detail before the Bill becomes an Act. Will the Minister commit to those delegated decisions being published before the Bill becomes an Act? Could he explain why the codes of practice are not being set as mandatory? I do not understand why codes of practice, much of the detail of which the regulator is being asked to set, will not be made mandatory for businesses. How can minimum standards for age or identity verification be imposed if those codes of practice are not made mandatory? Perhaps the Minister could explain.
Many users across the country will want to ensure that their complaints are dealt with effectively. We recommended an ombudsman service that dealt with complaints that were exhausted through a complaints system at the regulated companies, but the Government rejected it. Please could the Minister explain why?
I was pleased that the Government accepted the concept of the ability for a super-complaint to be brought on behalf of groups of users, but the decision as to who will be able a bring a super-complaint has been deferred, subject to a decision by the Secretary of State. Why, and when will that decision be taken? If the Minister could allude to who they might be, I am sure that would be welcome.
Lastly, there is a number of exemptions and more work to be done, which leaves significant holes in the legislation. There is much more work to be done on clauses 5, 6 and 50—on democratic importance, journalism and the definition of journalism, on the exemptions for news publishers, and on disinformation, which is mentioned only once in the entire Bill. I and many others recognise that these are not easy issues, but they should be considered fully before legislation is proposed that has gaping holes for people who want to get around it, and for those who wish to test the parameters of this law in the courts, probably for many years. All of us, on a cross-party basis in this House, support the Government’s endeavours to make it safe for children and others to be online. We want the legislation to be implemented as quickly as possible and to be as effective as possible, but there are significant concerns that it will be jammed up in the judicial system, where this House is unacceptably giving judges the job of fleshing out the definition of what many of the important exemptions will mean in practice.
The idea that the Secretary of State has the power to intervene with the independent regulator and tell it what it should or should not do obviously undermines the idea of an independent regulator. While Ministers might give assurances to this House that the power will not be abused, I believe that other countries, whether China, Russia, Turkey or anywhere else, will say, “Look at Great Britain. It thinks this is an appropriate thing to do. We’re going to follow the golden precedent set by the UK in legislating on these issues and give our Ministers the ability to decide what online content should be taken down.” That seems a dangerous precedent.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)
indicated dissent.
Darren Jones
The Minister is shaking his head, but I can tell him that the legislation does do that, because we looked at this and took evidence on it. The Secretary of State would be able to tell the regulator that content should be “legal but harmful” and therefore should be removed as part of its systems design online. We also heard that the ability to do that at speed is very restricted and therefore the power is ineffective in the first place. Therefore, the Government should evidently change their position on that. I do not understand why, in the face of evidence from pretty much every stakeholder, the Government agree that that is an appropriate use of power or why Parliament would vote that through.
I look forward to the Minister giving his answers to those questions, in the hope that, as the Bill proceeds through the House, it can be tidied up and made tighter and more effective, to protect children and adults online in this country.
Damian Collins (Folkestone and Hythe) (Con)
This is an incredibly important Bill. It has huge cross-party support and was subject to scrutiny by the Joint Committee, which produced a unanimous report, which shows the widespread feeling in both Houses and on both sides of this Chamber that we should legislate. I do feel, though, that I should respond to some of the remarks of the shadow Secretary of State, the hon. Member for Manchester Central (Lucy Powell), on the Joint Committee report.
I agree with the hon. Member that, unless this legislation covers the systems of social media companies as well as the content hosted, it will not be effective, but it is my belief that it does that. Throughout the evidence that the Committee took, including from Ofcom and not just the Government, it was stated to us very clearly that the systems of social media companies are within scope and that, in preparing the risk registers for the companies, Ofcom can look at risks. For Facebook, that could include the fact that the news feed recommends content to users, while for someone on TikTok using For You, it could be the fact that the company is selecting—algorithmically ranking—content that someone might like. That could include, for a teenage girl, content that promoted self-harm that was being actively recommended by the company’s systems, or, as Frances Haugen set out, extremist content and hate speech being actively promoted and recommended by the systems.
That would be in scope. The algorithms are within scope, and part of Parliament job’s will be to ensure on an ongoing basis that Ofcom is using its powers to audit the companies in that way, to gain access to information in that way, and to say that the active promotion of regulated content by a social media company is an offence. In passing this Bill, we expect that that will be fully in scope. If the legislation placed no obligation on a company to proactively identify any copies of content that it had judged should not be there and had taken down, we would have a very ineffective system. In effect, we would have what Facebook does to assess content today. If that was effective, we would not need this legislation, but it is woefully ineffective, so the algorithms and the systems are in scope. The Bill gives Ofcom the power to regulate on that basis, and we have to ensure that it does that in preparing the risk registers.
Following what my Joint Committee colleague, the hon. Member for Bristol North West (Darren Jones), said, the point about the codes of practice is really important. The regulator sets the codes of practice for companies to follow. The Government set out in their response to the Joint Committee report that the regulator can tell companies if their response is not adequate. If an area of risk has been identified where the company has to create policies to address that risk and the response is not good enough, the regulator can still find the company in breach. I would welcome it if the Minister wished to say more about that, either today or as the Bill goes through the House, because it is really important. The response of a company to a request from the regulator, having identified a risk on its platforms, cannot be: “Oh, sorry, we don’t have a policy on that.” It has to be able to set those policies. We have to go beyond just enforcing the terms of service that companies have created for themselves. Making sure they do what they say they are going to do is really important, as the Secretary of State said, but we should be able to push them to go further.
I agree, though, with the hon. Member for Manchester Central and other hon. Members about regulation being based on risk and not just size. In reality, Ofcom will have to make judgment calls on smaller sites that are posing a huge risk or a new risk that has been identified.
The regulator will have the power to regulate Metaverse and VR platforms. Anything that is a user-to-user service is already in scope of the legislation. The challenge for the regulator will be in moderating conversations between two people in a virtual room, which is much harder than when people are posting text-based content. The technology will have to adapt to do that, but we should start that journey based on the fact that that is already in scope.
Finally, on the much used expression “legal but harmful”, I am pleased the Government took one of our big recommendations, which is to write more offences clearly into the Bill, so it is clear what is actually being regulated—so promotion of self-harm is regulated content and hate speech is part of the regulated content. The job of the regulator then is to set the threshold where intervention should come and I think that should be based on case law. On many of these issues, such as the abuse of the England footballers after the final of the European championships, people have been sentenced in court for what they did. That creates good guidance and a good baseline for what hate speech is in that context and where we would expect intervention. I think it would be much easier for the Bill, the service users that are regulated and the people who post content, to know what the offences are and where the regulatory standard is. Rather than describing those things as “legal but harmful”, we should describe them as what they are, which is regulated offences based on existing offences in law.
The Government made an important step in responding to say that the Government, in seeking amendment to the codes of practice that bring new offences within scope of these priority areas of harm, should have to go through an affirmative process in both Houses. That is really important. Ultimately, the regulation should be based on our laws and changes should be based on decisions taken in this House.
Several hon. Members rose—
Madam Deputy Speaker (Dame Eleanor Laing)
Order. After the next speaker, the time limit will be reduced to four minutes.
Kirsty Blackman (Aberdeen North) (SNP)
Thank you, Madam Deputy Speaker.
I want to focus on how people actually use the internet, particularly how young people actually use the internet. I feel, as was suggested in one of the comments in questions earlier, that this Bill and some of the discussion around it misses some of the point and some of the actual ways in which particularly young people use the internet.
We have not mentioned, or I have not heard anyone mention, Discord. I have not heard anyone mention Twitch. I have not heard people talking about how people interact on Fortnite. A significant number of young people use Fortnite to interact with their friends. That is the way they speak to their friends. I do not know if the Minister is aware of this, but you can only change the parental controls on Fortnite to stop your children speaking to everybody; you cannot stop them speaking to everybody but their friends. There are no parental controls on a lot of these sites that parents can adequately utilise. They only have this heavy-handed business where they can ban their child entirely from doing something, or they are allowed to do everything. I think some bits are missed in this because it does not actually reflect the way young people use the internet.
In the girls’ attitude survey produced by Girlguiding, 71% of the 2,000 girls who were surveyed said that they had experienced harmful content while online. But one of the important things I also want to stress is that a quarter of LGBQ and disabled girls found online forums and spaces an important source of support. So we need to make sure that children and young people have the ability to access those sources of support. Whether that is on forums, or on Fortnite, Minecraft, Animal Crossing or whatever it is they happen to be speaking to their friends on, that is important and key in order for young people to continue to communicate. It has been especially important during the pandemic.
There is at this moment a major parenting knowledge gap. There is a generation of parents who have not grown up using the internet. I was one the first people to grow up using the internet and have kids; they are at the top end of primary school now. Once this generation of kids are adults, they will know how their children are behaving online and what the online world is like because they will have lived through it themselves. The current generation of parents has not. The current generation of parents has this knowledge gap.
I am finding that a lot of my kids’ friends have rules that I consider totally—totally—unacceptable and inappropriate because they do not match how kids actually use the internet and the interactions they are likely to have on there. I asked my kids what they thought was the most important thing, and they said the ability to choose what they see and what they do not see, and who they hear from and who they do not hear from. That was the most important thing to them.
That has been talked about in a lot of the information we have received—the requirement to look at algorithms and to opt in to being served with those algorithms, rather than having an opt-out, as we do with Facebook. Facebook says, “Are you sure you don’t want to see this content any more?” Well, yes, I have clicked that I do not want to see it—of course I do not want to see it any more. Of course I would like to see the things my hon. Friend the Member for Ochil and South Perthshire (John Nicolson) posts and all of the replies he sends to people—I want that to pop up with my notifications—but I should have to choose to do that.
Kids feel like that as well—my kids, and kids up and down the country—because, as has been talked about, once you get into these cycles of seeing inappropriate, harmful, damaging content, you are more likely to be served with more and more of that content. At the very first moment people should be able to say, “Hang on, I don’t want to see any of this”, and when they sign up to a site they should immediately be able to say, “No, I don’t want to see any of this. All I want to do is speak to the people I know or have sent a friend request to and accepted a send request from.” We need to ensure that there are enough safeguards like that in place for children and young people and their parents to be able to make those choices in the knowledge and understanding of how these services will actually be used, rather than MPs who do not necessarily use these services making these decisions. We need to have that flexibility.
My final point is that the internet is moving and changing. Twenty years ago I was going to LAN parties and meeting people I knew from online games. That is still happening today and we are only now getting the legislation here and catching up. It has taken that long for us to get here so this legislation must be fit for the future. It must be flexible enough to work with the new technologies, social media and gaming platforms that are coming through.
Andrew Percy (Brigg and Goole) (Con)
I, too, regret the short time we have to debate this important Bill this evening. This is much-needed legislation and I agree with many of the comments already made.
These platforms have been warned over the years to take action yet have failed to do so. Their online platforms have remained a safe space for racism, holocaust denial, homophobia, conspiracy theories and general bullying. One of the best things I ever did for my mental health was to leave Twitter, but for many young people that is not an option as it cuts them off from access to their friends and much of what is their society. So I am proud that the Government are taking action on this but, as the Minister knows from my meetings with him alongside the Antisemitism Policy Trust, there are ways in which I think the Bill can be improved.
First, on small, high-harm platforms, I pay tribute to the Antisemitism Policy Trust, which has been leading the charge. As the hon. Member for Aberdeen North (Kirsty Blackman) said, everybody knows Facebook, Twitter and YouTube but few people are aware of a lot of the smaller platforms such as BitChute, 8kun—previously 8chan—or Minds. These small platforms are a haven for white supremacists, incels, conspiracy theorists and antisemites; it is where they gather, converse and share and spew their hate.
An example of that is a post from the so-called anti-Jewish meme repository on the platform Gab which showed a picture of goblins, in this instance the usual grotesque representation of those age-old Jewish physical stereotypes, alongside the phrase, “Are you ready to die in another Jewish war, Goyim?” That is the sort of stuff that is on these small platforms, and it is not rare; we see it all over. Indeed, many of these small platforms exist purely to spew such hate, but at present, despite the many measures in the Bill that I support, these sites will be sifted by Ofcom into two major categories based on their size and functionality. I met the Minister to discuss this point recently.
The Government have not so far been enthusiastic about risk being a determinant factor for fear that too many of the small platforms would be drawn into scope. That is why I hope that as this Bill progresses the Minister will consider a small amendment to enable Ofcom to have powers to draw the small but high-harm platforms, based on its assessments—the so-called super-complaints that we have heard about or other means— into the category 1 status. That would add a regulatory oversight and burden on those platforms. This is all about putting pressure on them—requiring them to go through more hurdles to frustrate their business model of hate, and making it as uncomfortable as possible for them. I hope the Minister will look at that as the Bill progresses.
I am very short of time but I also want to raise the issue of search, which the Minister knows I have raised previously. We in the all-party group against antisemitism found examples in Alexa and other voice-activated search platforms where the responses that come back are deeply offensive and racist. I understand that the relationship with the user in entering into a search is different from having an account with a particular social media platform, but these search engines are providing access to all sorts of grotesque racist and misogynistic content and I hope we can look at that as the Bill progresses.
Luke Pollard (Plymouth, Sutton and Devonport) (Lab/Co-op)
I welcome the Bill. It is an important step forward, and it is because I welcome it that I want to see it strengthened. It seems to be an opportunity for us to get this right and in particular to learn lessons from where we have got it wrong in the past. I want to raise two different types of culture. The first is incel culture, and I would like to relate that to the experience that we had in Keyham, with the massing shooting in Plymouth last year, and the second is the consequences of being Instafamous.
It is just over six months since the tragic shooting in Keyham in which we lost five members of our community. The community feels incredibly strongly that we want to learn the lessons, no matter how painful or difficult they are, to ensure that something like this never happens again. We are making progress, working with the Home Office on gun law changes, in particular on linking medical records and gun certificates. One part is incredibly difficult, and that is addressing incel culture, which has been mentioned from the Front Bench by my hon. Friend the Member for Pontypridd (Alex Davies-Jones) and by the hon. Member for Brigg and Goole (Andrew Percy). It sits in the toxic underbelly of our internet and in many cases, it sits on those smaller platforms to which this Bill will not extend the full obligations. I mention that because it results in real-world experiences.
I cannot allocate responsibility for what happened in the Keyham shooting because the inquest is still under way and the police investigations are ongoing, but it is clear that online radicalisation contributed to it, and many of the sites that are referenced as smaller sites that will not be covered by the legislation contributed perhaps in part to the online radicalisation.
When incel culture leads to violence it is not domestic terrorism; it falls between the stools. It must not fall between the stools of this legislation, so I would be grateful if the Minister agreed to meet me and members of the Keyham community to understand how his proposals relate to the learnings that we are coming out with in Keyham to make sure that nothing like this can ever happen again. With the online radicalisation of our young men in particular, it is really important that we understand where the rescue routes are. This is not just about the legislation; it needs to be about how we rescue people from the routes that they are going down. I would like to understand from the Minister how we can ensure that there are rescue routes; that schools, social services and mental health providers can understand how to rescue people from incel culture and the online radicalisation of incel culture as well as US gun culture—the glorification of guns and the misogynistic culture that exists in this space.
The second point about culture is an important one about how we learn from young people. Plymouth is a brilliant place. It is home to both GOD TV—a global evangelical broadcaster—and to many porn production companies. It is quite an eclectic, creative setting. We need to look at how we can learn from the culture of being Instafamous. Instafamous is something that many of our young people look at from an early age. They look at Body Beautifuls, Perfect Smiles—an existence that is out of reach for many people. In many cases they are viewing the creation of online pornography via sites such as OnlyFans as a natural and logical extension to being Instafamous. It is something that, sadly, can attract a huge amount of income. So young people taking their kit off at an early age, especially in their teenage years, can produce high earnings. I want to see those big companies challenged not to serve links on Instagram profiles to OnlyFans content for under-18s. That sits in a grey area of the Bill. I would be grateful if the Minister looked at how we can have that as a serious setting so that we can challenge that culture and help build understanding about how Instafamous must mean consent and protection.
Adam Afriyie (Windsor) (Con)
Overall, I very much welcome the Bill. It has been a long time coming, but none of us here would disagree that we need to protect our children, certainly from pornography and all sorts of harassment and awful things that are on the internet and online communications platforms. There is no argument or pushback there at all. I welcome the age verification side of things. We all welcome that.
The repeal of the Malicious Communications Act 1988 is a good move. The adjustment of a couple of sections of the Communications Act 2003 is also a really good, positive step, and I am glad that the Bill is before us now. I think pretty much everyone here would agree with the principles of the Bill, and I thank the Government for getting there eventually and introducing it. However, as chair of the freedom of speech all-party parliamentary group I need to say a few words and express a few concerns about some of the detail and some of the areas where the Bill could perhaps be improved still further.
The first point relates to the requirement that social media have regard to freedom of speech. It is very easy, with all the concerns we have—I have them too—to push too hard and say that social media companies should clamp down immediately on anything that could be even slightly harmful, even if it is uncertain what “harmful” actually means. We must not to give them the powers or the incentive through financial penalties to shut down freedom of speech just in case something is seen to be harmful by somebody. As the Bill progresses, therefore, it would be interesting to look at whether there is an area where we can tighten up rights and powers on freedom of speech.
Secondly, there is the huge issue—one or two other Members have raised it—of definitions. Clearly, if we say that something that is illegal should not be there and should disappear, of course we would all agree with that. If we say that something that is harmful should not be there, should not be transmitted and should not be amplified, we start to get into difficult territory, because what is harmful for one person may not be harmful for another. So, again, we need to take a little more of a look at what we are talking about there. I am often called “Tory scum” online. I am thick-skinned; I can handle it. It sometimes happens in the Chamber here—[Laughter.]—but I am thick-skinned and I can handle it. So, what if there was an option online for me to say, “You know what? I am relaxed about seeing some content that might be a bit distasteful for others. I am okay seeing it and hearing it.”? In academic discourse in particular, it is really important to hear the other side of the argument, the other side of a discussion, the other side of a debate. Out of context, one phrase or argument might be seen to be really harmful to a certain group within society. I will just flag the trans debate. Even the mention of the word trans or the words male and female can really ignite, hurt and harm. We could even argue that it is severe harm. Therefore, we need to be very careful about the definitions we are working towards.
Finally, the key principle is that we should ensure that adults who have agency can make decisions for themselves. I hope social media companies can choose not to remove content entirely or amplify content, but to flag content so that grown-ups with agency like us, like a lot of the population, can choose to opt in or to opt out.
Carla Lockhart (Upper Bann) (DUP)
While long overdue, I welcome the Bill and welcome the fact that it goes some way to addressing some of the concerns previously raised in this House. I thank the Minister for his engagement and the manner in which the Government have listened, particularly on the issue of anonymity. While it is not perfect, we will continue to press for the cloak of anonymity, which allows faceless trolls to abuse and cause harm, to be removed.
In building the Bill, a logical cornerstone would be that what is illegal offline—on the street, in the workplace and in the schoolyard—is also illegal online. The level of abuse I have received at times on social media would certainly be a matter for the police if it happened in person. It is wrong that people can get away with it online. However, there are dangers to our right to free speech around regulating content that is legal but deemed harmful to adults. The Bill allows what is legal but harmful to adults to be decided by the Secretary of State. Whatever is included in that category now could be easily expanded in future by regulations, which we all know means limited parliamentary scrutiny. As responsible legislators, we must reflect on how that power could be misused in the future. It could be a tool for repressive censorship and that is surely something neither the Government nor this House would wish to see in a land where freedom of speech is such a fundamental part of what and who we are. Without robust free speech protections, all the weight of the duties on content that is legal but harmful to adults will be pushing in one direction, and sadly, that is censorship. I urge the Government to address that in the Bill.
We also need to look at the weakness of the Bill in relation to the protection, particularly for children and young people, from pornography. It is welcome that since the publication of the draft Bill, the Government have listened to concerns by introducing part 5. In eight days, it will be the fifth anniversary of the Digital Economy Act 2017 receiving Royal Assent. This Government took the decision not to implement part 3 of that Act. Those of us in the House who support age verification restrictions being placed on pornographic content are justifiably hesitant, wondering whether the Government will let children down again.
It could be 2025 before children are protected through age verification. Even if the Bill becomes law, there is still no certainty that the Government will commence the provisions. It simply cannot be left to the Secretary of State in 2025 to move secondary legislation to give effect to age verification. A commencement clause needs to be placed in the Bill. Children deserve the right to know that this Government will act for them this time.
Furthermore, the Bill needs to be consistent in how it deals with pornography across parts 3 and 5. Age verification is a simple concept. If a website, part of a website or social media platform hosts or provides pornographic content, a person’s age should be verified before access. If a child went into a newsagents to attempt to buy a pornographic magazine, they would be challenged by the shopkeeper. This goes back to the cornerstone of this issue: illegal offline should mean illegal online. The concept may be simple but the Bill, as drafted, adds unnecessary complexities. I ask the Minister to act and make parts 3 and 5 similar. We should also give Ofcom more power when it is implementing the Bill.
Dean Russell (Watford) (Con)
I had the great privilege of sitting on the Joint Committee on the draft Bill before Christmas and working with the Chair, my hon. Friend the Member for Folkestone and Hythe (Damian Collins), fantastic Members from across both Houses and amazing witnesses.
We heard repeated stories of platforms profiting from pain and prejudice. One story that really affected me was that of Zach Eagling, a heroic young boy who has cerebral palsy and epilepsy and who was targeted with flashing images by cruel trolls to trigger seizures. Those seizures have been triggered for other people with epilepsy, affecting their lives and risking not just harm, but potentially death, depending on their situation. That is why I and my hon. Friend the Member for Stourbridge (Suzanne Webb)—and all members of the Joint Committee, actually, because this was in our report—backed Zach’s law.
Kim Leadbeater (Batley and Spen) (Lab)
Ten-year-old Zach is a child in my constituency who has, as the hon. Member said, cerebral palsy and epilepsy, and he has been subjected to horrendous online abuse. I hope that the Minister can provide clarity tonight and confirm that Zach’s law—which shows that not just psychological harm and distress, but physical harm can be created as a result of online abuse and trolling—will be covered in the Bill.
Dean Russell
My understanding—hopefully this will be confirmed from the Dispatch Box—is that Zach’s law will be covered by clause 150 in part 10, on communications offences, but I urge the Ministry of Justice to firm that up further.
One thing that really came through for me was the role of algorithms. The only analogy that I can find in the real world for the danger of algorithms is narcotics. This is about organisations that focused on and targeted harmful content to people to get them to be more addicted to harm and to harmful content. By doing that, they numbed the senses of people who were using technology and social media, so that they engaged in practices that did them harm, turning them against not only others, but themselves. We heard awful stories about people doing such things as barcoding—about young girls cutting themselves—which was the most vile thing to hear, especially as a parent myself. There was also the idea that it was okay to be abusive to other people and the fact that it became normalised to hurt oneself, including in ways that can be undoable in future.
That leads on to a point about numbing the senses. I am really pleased that in debating the Bill today we have talked about the metaverse, because the metaverse is not just some random technology that we might talk about; it is about numbing the senses. It is about people putting on virtual reality headsets and living in a world that is not reality, even if it is for a matter of minutes or hours. As we look at these technologies and at virtual reality, my concern is that children and young people will be encouraged to spend more time in worlds that are not real and that could include more harmful content. Such worlds are increasingly accurate in their reality, in the impact that they can have and in their capability for user-to-user engagement.
I therefore think that although at the moment the Bill includes Meta and the metaverse, we need to look at it almost as a tech platform in its own right. We will not get everything right at first; I fully support the Bill as it stands, but as we move forward we will need to continue to improve it, test it and adapt it as new technologies come out. That is why I very much support the idea of a continuing Joint Committee specifically on online safety, so that as time goes by the issues can be scrutinised and we can look at whether Ofcom is delivering in its role. Ultimately, we need to use the Bill as a starting point to prevent harm now and for decades to come.
Liz Twist (Blaydon) (Lab)
I welcome the Bill, which is necessary and overdue, but I would like to raise two issues: how the Bill can tackle suicide and self-harm prevention, and mental health around body image for young people.
First, all suicide and self-harm content should be addressed across all platforms, regardless of size: it is not just the larger platforms that should be considered. The requirement imposed on category 1 platforms relating to legal but harmful suicide and self-harm content should be extended to all platforms, as many colleagues have said. There is a real concern that users will turn from the larger to the smaller platforms, so the issue needs to be addressed. Will the Minister confirm that even smaller platforms will be asked at the start to do an assessment of the risk they pose?
Secondly, the Secretary of State referred to secondary legislation, which will be necessary to identify legal but harmful suicide and self-harm content as a real priority for action. It would be really helpful if we could see that before the legislation is finally passed: it is a key issue and must be an urgent area of work.
Thirdly, I wonder whether the Government will look again at the Law Commission’s proposal that a new offence of encouraging or assisting serious self-harm be created, and that the Bill should make assisting self-harm a priority issue with respect to illegal content. Will the Minister look again at that proposal as the Bill progresses?
I also want to speak about damage to body image, particularly in relation to young people. All of us want to look our best on social media. Young people in particular face a real barrage of digitally enhanced and in many cases unrealistic images that can have a negative effect on body image. Research by the Mental Health Foundation shows that harmful material that damages body image can have a real negative effect on young people’s mental health. As other hon. Members have said, and as most of us know from our own experience, many of the images that we see on social media are driven by algorithms that can amplify the harm to young people. That is particularly concerning as an issue associated with the possible development of eating disorders and mental health conditions.
The Bill does include some provision on algorithms, but more needs to be done to protect our young people from that damage. I encourage the Government to consider amendments that would give more control over new algorithmic content and ensure that the safest settings are the default settings. Users should be given more control over the kind of advertising that they see and receive, to avoid excessive advertising showing perfect bodies. The Government should commit themselves to recognising material that damages body image as a serious form of harm.
There are many more detailed issues that I would have liked to raise tonight, but let me end by saying that we need to give serious consideration to ways of reducing the incidence of suicides and self-harm.
Several hon. Members rose—
Madam Deputy Speaker (Dame Eleanor Laing)
Order. I am reluctant to reduce the time limit, but I am receiving appeals for me to try to get more people in, so I will reduce it to three minutes. However, not everyone will have a chance to speak this evening.
Dame Caroline Dinenage (Gosport) (Con)
I congratulate the ministerial team and the army of fantastic officials who have brought this enormous and groundbreaking Bill to its current stage. It is one of the most important pieces of legislation that we will be dealing with. No country has attempted to regulate the internet so comprehensively as we have, and I welcome all the improvements that have been made to bring the Bill to this point. Those people have been extremely brave, and they have listened. There are widely competing interests at stake here, and the navigation of the Bill to a position where it has already achieved a degree of consensus is quite remarkable.
The pressure is on now, not least because we have all got into the habit of describing the Bill as the cavalry coming over the hill to solve all the ills of the online world. It is worth acknowledging from the outset that it will not be the silver bullet or the panacea for all the challenges that we face online. The point is, however, that it needs to be the best possible starting point, the groundworks to face down both the current threats and, more important, the likely challenges of the future. We all have a huge responsibility to work collaboratively, and not to let this process be derailed by side issues or clouded by party politics. Never has the phrase “not letting the perfect be the enemy of the good” been more appropriate. So much will be at risk if we do not seize the opportunity to make progress.
As the Secretary of State pointed out, the irony is that this vast and complex legislation is completely unnecessary. Search engines and social media platforms already have the ability to reduce the risks of the online world if they want to, and we have seen examples of that. However, while the bottom line remains their priority—while these precious algorithms remain so protected—the harms that are caused will never be tackled. With that in mind, I am more convinced than ever of the need for platforms to be held to account and for Ofcom to be given the powers to ensure that they are.
Inevitably, we will need to spend the next few weeks and months debating the various facets of this issue, but today I want to underline the bigger picture. It has always been an overarching theme that protecting children must be a top priority. One of the toughest meetings that I had as Digital Minister was with Ian Russell, whose 14-year-old daughter Molly took her own life after reading material promoting suicide and self-harm on Instagram. That is a conversation that brings a chill to the heart of any parent. Children are so often the victims of online harms. During lockdown, 47% of children said they had seen content that they wished they had not seen. Over a month-long period, the Internet Watch Foundation blocked at least 8.8 million attempts by UK internet users to access videos and images of children suffering sexual abuse.
There is so much at stake here, and we need to work together to ensure that the Bill is the very best that it can possibly be.
Jamie Stone (Caithness, Sutherland and Easter Ross) (LD)
Obviously I, and my party, support the thrust of the Bill. The Government have been talking about this since 2018, so clearly time is of the essence.
Members have referred repeatedly to the slight vagueness of the definitions currently in the Bill—words such as “harms”, for instance—so I wanted to examine this from a “first principles” point of view. In another place, and almost in another life, and for four long years—perhaps as a punishment brief—I was made the Chairman of Subordinate Legislation Committee in the Scottish Parliament, so without bragging terribly much, I can say that there is nothing I do not know about affirmative and negative resolutions and everything to do with statutory instruments. You could call me a statutory instrument wonk. What I do know, and I do not think it is very different from discussion here, is that instruments come and go; they are not on the face of a Bill, because they are secondary legislation; and, by and large, ordinary, run-of-the-mill Members of Parliament do not take a huge amount of interest in them. The fact is, however, that the powers that will be granted to the Secretary of State to deliver definitions by means of subordinate legislation—statutory instruments—concern me slightly.
Reference has been made to how unfortunate it would be if the Secretary of State could tell the regulator what the regulator was or was not to do, and to the fact that other countries will look at what we do and, hopefully, see it as an example of how things should be done on a worldwide basis. Rightly or wrongly, we give ourselves the name of the mother of Parliaments. The concept of freedom of speech is incredibly important to the way we do things in this place and as a country. When it comes to the definition of what is bad, what is good, what should be online and what should not, I would feel happier if I could see that all 650 Members of Parliament actually understood and owned those definitions, because that is fundamental to the concept of freedom of speech. I look forward to seeing what comes back, and I have no reason to think that the Government are unsympathetic to the points that I am making. This is about getting the balance right.
Finally, in the short time available, I want to make two last points. My party is very keen on end-to-end encryption, and I need reassurance that that remains a possibility. Secondly, on the rules governing what is right and what is wrong for the press, the seven criteria would, as I read them, still allow a channel that I am not keen on, the Russian propaganda channel Russia Today, to broadcast, and allow my former colleague, the former First Minister of Scotland—this is no reflection on the Scottish National party—to broadcast his nonsense. That has now been banned, but the rules, as I see them, would allow Russia Today to broadcast.
Saqib Bhatti (Meriden) (Con)
I am a great believer in the good that social media has done over the last few decades. It has transformed the way we interact, share ideas and stay connected. Social media has allowed a global conversation about global challenges such as climate change, poverty and even the conflict that we are witnessing in Ukraine. However, there is a dark side to social media, and I would be surprised if there were any Member of this House who had not experienced some form of it. The online world has become like the wild west: anything goes. Indeed, it was just last year when the whole country was gripped by the success of our football team in the Euros, and as I sadly watched us lose another penalty shoot-out, I turned to my wife and said, “You know what’s going to happen now, don’t you?” And it did. The three players who missed penalties, all young black men, were subjected to disgusting racist abuse. Monkey emojis were used to taunt them, and were not taken down because the Instagram algorithm did not deem that to be racism. Abuse on Twitter was rife, and the scale of it was so large that it restarted a national conversation, which I am sad to say we have had many times before.
On the back of that, I, along with 50 of my colleagues, wrote to the major social media companies: Reddit, Facebook, Twitter, Snapchat and TikTok. We asked for three things: that all accounts be verified; that the algorithm be adjusted with human interaction to account for differences in languages; and that there be a “three strikes and you’re out” policy for serial offenders, so that they knew that they would not be allowed to get away with abuse. Unfortunately, not all the companies responded, which shows how much respect they have for our democratic processes and for the moral duty to do the right thing. Those that did respond took long enough to do so, and took the view that they were already doing enough. Clearly, anyone can go on social media today and see that that is not true. It is not that the companies are burying their head in the sand; it is just not very profitable for them to make a change. If they had the will to do so, they certainly have the skill, innovative ability and resources to make it happen.
I fully accept that, in this legislation, the Government have taken a different approach, and there are clearly different ways to skin this cat. The 10% of turnover for fines, the clarity on what is allowed in companies’ terms and conditions, and effective enforcement may well draw a clear line in the sand. I call on the social media companies to heed the message sent by 50 of my colleagues, and to once again recognise their moral duty to be positive and good players in society. We have an opportunity today to set a standard, so that when an aspiring young boy or girl wants to be in the public eye, whether as an athlete, a media star or a politician, they will no longer think that being abused online is an inevitable consequence of that choice.
Mrs Sharon Hodgson (Washington and Sunderland West) (Lab)
I speak in this debate as chair of the all-party parliamentary group on ticket abuse, which I set up over 10 years ago. The APPG shines a light on ticket abuse and campaigns to protect fans who are purchasing event tickets from being scammed and ripped off, often by the large-scale ticket touts that dominate resale sites such as Viagogo and StubHub. The APPG works with experts in the field such as FanFair Alliance, a music industry campaign, and the Iridium Consultancy to tackle industrial-scale ticket touting. I hope that when this legislation is reviewed in Committee, those organisations will be called on to share their expertise in this area.
Sadly, online ticket fraud is absolutely rife. Despite some regulatory and legislative improvements, not least in the Consumer Rights Act 2015, too many fans are still being scammed on a regular basis. The Bill, as it stands, includes a major loophole that means people will not be properly protected from online fraud. Search engines such as Google are not currently covered by the requirements on fraudulent advertising. A key issue in the ticketing market is how websites that allow fraudulent tickets to be sold often take out paid ads with Google that appear at the top of the search results. This gives the false impression to consumers that these sites are official ticket outlets. People mistakenly believe that only authorised ticket outlets can advertise on Google—people trust Google—and they are scammed as a result.
The Times reported last year that Google was taking advertising money from scam websites selling Premier League football tickets, even though the matches were taking place behind closed doors during lockdown—you couldn’t make it up. The Online Safety Bill needs to ensure that consumers are provided with much greater protection and that Google is forced to take greater responsibility for who it allows to advertise. If the Bill took action, online ticket fraud would be drastically reduced. With £2.3 billion lost to online fraud in the UK last year, it is very much needed.
It is also important to remember the human side of online fraud. Victims go through intense stress, as they are not only scammed out of their money but feel duped, stupid and humiliated. There cannot be a Member of this House who has not had to support a constituent devastated by online fraud. I have come across many stories, including one of an elderly couple who bought two tickets to see their favourite artist to celebrate their 70th wedding anniversary. When they arrived at the venue, they were turned away and told that they had been sold fake tickets. I have a lot more to say, Madam Deputy Speaker, but I think you get the drift.
Mrs Maria Miller (Basingstoke) (Con)
For too long, the tech giants have been able to dismiss the harms they create for the people we represent because they do not take seriously their responsibility for how their products are designed and used, which is why this legislation is vital.
The Bill will start to change the destructive culture in the tech industry. We live simultaneously in online and offline worlds, and we expect the rules and the culture to be the same in both, but at the moment, they are not. When I visited the big tech companies in Silicon Valley as Secretary of State in 2014 to talk about online moderation, which was almost completely absent at that stage, and child abuse images, which were not regularly removed, I rapidly concluded that the only way to solve the problem and the cultural deficit I encountered would be to regulate. I think this Bill has its roots in those meetings, so I welcome it and the Government’s approach.
I am pleased to see that measures on many of the issues on which I have been campaigning in the years since 2014 have come to fruition in this Bill, but there is still room for improvement. I welcome the criminalisation of cyber-flashing, and I pay tribute to Grazia, Clare McGlynn and Bumble for all their work with me and many colleagues in this place.
Wera Hobhouse
Scotland banned cyber-flashing in 2010, but that ban includes a motivation test, rather than just a consent test, so a staggering 95% of cyber-flashing goes unpunished. Does the right hon. Lady agree that we should not make the same mistake?
Mrs Miller
I will come on to that shortly, and the hon. Lady knows I agree with her. This is something the Government need to take seriously.
The second thing I support in this Bill is limiting anonymous online abuse. Again, I pay tribute to the Football Association, with which I have worked closely, Glitch, the Centenary Action Group, Compassion in Politics, Hope not Hate and Kick It Out. They have all done a tremendous job, working with many of us in this place, to get to this point.
Finally, I support preventing children from accessing pornography, although I echo what we heard earlier about it being three years too late. It is shameful that this measure was not enacted earlier.
The Minister knows that three demands are coming his way from me. We need to future-proof our approach to the law in this area. Tech moves quickly—quicker than the Government’s approach to legislation, which leaves us playing whack-a-mole. The devious methods of causing harm change rapidly, as do the motivations of perpetrators, to answer the point raised by the hon. Member for Bath (Wera Hobhouse). What stays the same is the lack of consent from victims, so will the Government please look at that as a way of future-proofing our law? A worrying example of that is deepfake technology that creates pornographic images of women. That is currently totally lawful. Nudification software is commercially available and uses images—only of women —to create nude images. I have already stated publicly that that should be banned. It has been in South Korea and Taiwan, yet our law is playing catch-up.
The second issue that the Government need to address is the fact that they are creating many more victims as a result of this Bill. We need to make sure that victim support is in place to augment the amazing work of organisations such as the Revenge Porn Helpline. Finally, to echo the point made by my hon. Friend the Member for Watford (Dean Russell), let me say that this is a complex area, as we are proving with every speech in this debate. I pay tribute to the Select Committee Chair, who is no longer in his place, and the Joint Committee Chair, but I believe that we need a joint standing committee to scrutinise the implementation of this Bill when it is enacted. This is a world-class piece of legislation to change culture, but we also need other countries to adopt a similar approach. A global approach is needed if this is to work to end the wild west.
Gavin Robinson (Belfast East) (DUP)
It is a pleasure to follow the right hon. Member for Basingstoke (Mrs Miller), and a number of contributions this evening chime with my view. My hon. Friend the Member for Upper Bann (Carla Lockhart) outlined our party’s broad support for the Bill; however, she and the hon. Members for Windsor (Adam Afriyie) and for Bristol North West (Darren Jones) all raised concerns that can be ironed out and worked upon as the Bill progresses, but that are worthy of reflection, from a principle perspective, at this stage. My hon. Friend rightly said that we should not ban online that which is legal offline. That issue is causing consternation and concern, and it needs to be reflected on and thought through.
There was a chink of light in the exchange between the Minister and the Chair of the Joint Committee, the hon. Member for Folkestone and Hythe (Damian Collins), who said that we want to, and should, be talking about regulating in the online domain those things that are offences offline. That is what we should be doing, not engaging in discussions about ill-defined or non-defined “legal but harmful” content. We do not know what that is. In this Bill, we are conferring significant power on the Secretary of State, not to decide that, but to bring that proposal forward through a mechanism that does not afford the greatest level of parliamentary scrutiny, as we know. This debate has been curtailed to two and a half hours, and a debate on a statutory instrument on what is legal but harmful will be 90 minutes long, and there will be no ability to amend that instrument.
There has been discussion about journalists. It is right that there should be protections for them, for democratic content and for politicians. However, article 10 of the Human Rights Act does not distinguish between the average Joe and somebody who is providing academic or journalistic content, so should we? Is that the right step? It is right that we provide protection for those individuals, but what about anyone else who wishes to enjoy freedom of expression in the online domain? It has been said that there is a right of appeal, and yes, there is—to an offshored company that marks its own homework and is satisfied with the action it has taken. But it will have removed the journalist or individual’s content, and they will have suffered the consequence, with no recourse. They cannot take a judicial review against such a company, and an individual will not be able to go to Ofcom either; it will not be interested unless a super entity or a super-class complaint is involved. There is no recourse here. Those are the sorts of issues we will have to grapple with. There are fines for the companies here, but what about recourse for the individual?
Robert Jenrick (Newark) (Con)
In the one minute you have given me to speak in this debate, let me make three brief points, Madam Deputy Speaker. First, I come to this Bill with concerns about its impact on freedom of speech. I am grateful for the reassurances I have received already, and will be following how we manage journalistic content, in particular, in order to protect that in the Bill.
Secondly, I am concerned about the Bill’s impact on the ability of us all to tackle the abuse of the power that social media companies have more broadly. The Bill does not contain measures to increase competition, to enable small businesses in this country to prosper and to ensure that the social media platforms do not crowd out existing businesses. I have been assured that a second Bill will follow this one and will tackle that issue, but in recent days I have heard reports in the press that that Bill will not go forward because of a lack parliamentary time. I would be grateful if the Minister could say when he responds to the debate that that Bill will proceed, because it is an extremely important issue.
John Nicolson (Ochil and South Perthshire) (SNP)
Everyone wants to be safe online and everyone wants to keep their children safe online but, from grooming to religious radicalisation and from disinformation to cruel attacks on the vulnerable, the online world is far from safe. That is why we all agree that we need better controls while we preserve all that is good about the online world, including free speech.
This Bill is an example of how legislation can benefit from a collegiate, cross-party approach. I know because I have served on the Select Committee and the Joint Committee, both of which produced reports on the Bill. The Bill is ambitious and much of it is good, but there are some holes in the legislation and we must make important improvements before it is passed.
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
Does the hon. Gentleman, with whom I served on the Joint Committee on the draft Bill, agree, having listened to the evidence of the whistleblower Frances Haugen about how disinformation was used in the US Capitol insurrection, that it is completely inadequate that there is only one clause on the subject in the Bill?
John Nicolson
Yes, and I shall return to that point later in my speech.
The Secretary of State’s powers in the Bill need to be addressed. From interested charities to the chief executive of Ofcom, there is consensus that the powers of the Secretary of State in the legislation are too wide. Child safety campaigners, human rights groups, women and girls’ charities, sports groups and democracy reform campaigners all agree that the Secretary of State’s powers threaten the independence of the regulator. That is why both the Joint Committee and the Select Committee have, unanimously and across party lines, recommended reducing the proposed powers.
We should be clear about what exactly the proposed powers will do. Under clause 40, the Secretary of State will be able to modify the draft codes of practice, thus allowing the UK Government a huge amount of power over the independent communications regulator, Ofcom. The Government have attempted to play down the powers, saying that they would be used only in “exceptional circumstances”, but the word “exceptional” is nebulous. How frequent is exceptional? All we are told is that the exceptional circumstances could reflect changing Government “public policy”. That is far too vague, so perhaps the Secretary of State will clarify the difference between public policy and Government policy and give us some further definition of “exceptional”.
While of course I am sure Members feel certain that the current Secretary of State would exercise her powers in a calm and level-headed way, imagine if somebody intemperate held her post or—heaven forfend—a woke, left-wing snowflake from the Labour Benches did. The Secretary of State should listen to her own MPs and reduce her powers in the Bill.
Let me turn to misinformation and disinformation. The Bill aims not only to reduce abuse online but to reduce harm more generally. That cannot be done without including in the Bill stronger provisions on disinformation. As a gay man, I have been on the receiving end of abuse for my sexuality, and I have seen the devasting effect that misinformation and disinformation have had on my community. Disinformation has always been weaponised to spread hate; however, the pervasive reach of social media makes disinformation even more dangerous.
The latest battle ground for LGBT rights has seen an onslaught against trans people. Lies about them and their demand for enhanced civil rights have swirled uncontrollably. Indeed, a correspondent of mine recently lamented “trans funding” in the north-east of Scotland, misreading and misunderstanding and believing it to involve the compulsory regendering of retiring oil workers in receipt of transitional funding from the Scottish Government. That is absurd, of course, but it says something about the frenzied atmosphere stirred up by online transphobes.
The brutal Russian invasion of Ukraine, with lies spewed by the Russian Government and their media apologists, has, like the covid pandemic, illustrated some of the other real-world harms arising from disinformation. It is now a weapon of war, with serious national security implications, yet the UK Government still do not seem to be taking it seriously enough. Full Fact, the independent fact-checking service, said that there is currently no credible plan to tackle disinformation. The Government may well argue that disinformation will fall under the false communications provision in clause 151, but in practice it sets what will likely be an unmeetable bar for services. As such, most disinformation will be dealt with as harmful content.
We welcome the Government’s inclusion of functionality in the risk assessments, which will look not just at content but how it spreads. Evidence from the two Committees shows that the dissemination of harm is as important as the content itself, but the Government should be more explicit in favouring content-neutral modes for reducing disinformation, as this will have less of an impact on freedom of speech. That was recommended by the Facebook whistleblowers Sophie Zhang and Frances Haugen.
Deidre Brock (Edinburgh North and Leith) (SNP)
Will my hon. Friend give way?
John Nicolson
No, I will make some progress, if I may.
A vital tool in countering disinformation is education, and Estonia—an early and frequent victim of Russian disinformation—is a remarkable case study. That is why the Government’s decision to drop Ofcom’s clause 104 media duties is perplexing. Media literacy should be a shared responsibility for schools, Government, and wider society. Spreading and enhancing media literacy should be up to not just Ofcom, but the larger platforms too. Ofcom should also be allowed to break platform terms and conditions for the purposes of investigation. For example, it would currently be unable to create fake profiles to analyse various companies’ behaviour, such as their response to abuse. It would empower the regulator.
Various issues arise when trying to legislate for harm that is not currently illegal. This is challenging for us as legislators since we do not know exactly what priority harms will be covered by secondary legislation, but we would like assurances from the Government that Zach’s law, as it has come to be known, will become a standalone offence. Vicious cowards who send seizure-inducing flashing images to people with epilepsy to trigger seizures must face criminal consequences. The Minister told me in a previous debate that this wicked behaviour will now be covered by the harmful communications offence under clause 150, but until a specific law is on the statute book, he will, I imagine, understand families’ desire for certainty.
Finally, I turn to cross-platform abuse. There has been a terrifying increase in online child abuse over the past three years. Grooming offences have increased by 70% in that period. The Select Committee and the Joint Committee received a host of recommendations which, disappointingly, seem to have been somewhat ignored by the Government. On both Committees, we have been anxious to reduce “digital breadcrumbing”, which is where paedophiles post images of children which may look benign and will not, therefore, be picked up by scanners. However, the aim is to induce children, or to encourage other paedophiles, to leave the regulated site and move to unregulated sites where they can be abused with impunity. I urge the Secretary of State to heed the advice of the National Society for the Prevention of Cruelty to Children. Without enacting the measures it recommends, children are at ever greater risk of harm.
The House will have noted that those on the SNP Benches have engaged with the Government throughout this process. Indeed, I am the only Member to have sat on both the Joint Committee and the Select Committee as this Bill has been considered and our reports written. It has been a privilege to hear from an incredible range of witnesses, some of whom have displayed enormous bravery in giving their testimony.
We want to see this legislation succeed. That there is a need for it is recognised across the House—but across the House, including on the Tory Benches, there is also recognition that the legislation can and must be improved. It is our intention to help to improve the legislation without seeking party advantage. I hope the Secretary of State will engage in the same constructive manner.
Alex Davies-Jones (Pontypridd) (Lab)
It is an honour to close this debate on behalf of the Opposition. Sadly, there is so little time for the debate that there is much that we will not even get to probe, including any mention of the Government’s underfunded and ill-thought-through online media strategy.
However, we all know that change and regulation of the online space are much needed, so Labour welcomes this legislation even in its delayed form. The current model, which sees social media platforms and tech giants making decisions about what content is hosted and shared online, is simply failing. It is about time that that model of self-regulation, which gives too much control to Silicon Valley, was challenged.
Therefore, as my hon. Friend the Member for Manchester Central (Lucy Powell) said, Labour broadly supports the principles of the Bill and welcomes some aspects of the Government’s approach, including the duty of care frameworks and the introduction of an independent regulator, Ofcom. It cannot and should not be a matter for the Government of the time to control what people across the UK are able to access online. Labour will continue to work hard to ensure that Ofcom remains truly independent of political influence.
We must also acknowledge, however, that after significant delays this Bill is no longer world leading. The Government first announced their intention to regulate online spaces all the way back in 2018. Since then, the online space has remained unregulated and, in many cases, has perpetuated dangerous and harmful misinformation with real-world consequences. Colleagues will be aware of the sheer amount of coronavirus vaccine disinformation so easily accessed by millions online at the height of the pandemic. Indeed, in many respects, it was hard to avoid.
More recently, the devastating impact of state disinformation at the hands of Putin’s regime has been clearer than ever, almost two years after Parliament’s own Intelligence and Security Committee called Russian influence in the UK “the new normal”.
Deidre Brock
Does the hon. Lady share my disappointment and concern that the Bill does nothing to address misinformation and disinformation in political advertising? A rash of very aggressive campaign groups emerged before the last Scottish Parliament elections, for example; they spent heavily on online political advertising, but were not required to reveal their political ties or funding sources. That is surely not right.
Alex Davies-Jones
I share the hon. Lady’s concern. There is so much more that is simply missing from this Bill, which is why it is just not good enough. We have heard in this debate about a range of omissions from the Bill and the loopholes that, despite the years of delay, have still not been addressed by the Government. I thank hon. Members on both sides of the House for pointing those out. It is a shame that we are not able to address them individually here, but we will probe those valued contributions further in the Bill Committee.
Despite huge public interest and a lengthy prelegislative scrutiny process, the Government continue to ignore many key recommendations, particularly around defining and regulating both illegal and legal but harmful content online. The very nature of the Bill and its heavy reliance on secondary legislation to truly flesh out the detail leaves much to be desired. We need to see action now if we are truly to keep people safe online.
Most importantly, this Bill is an opportunity, and an important one at that, to decide the kind of online world our children grow up in. I know from many across the House that growing up online as children do now is completely unimaginable. When I was young, we played Snake on a Nokia 3310, and had to wait for the dial-up and for people to get off the phone in order to go online and access MSN, but for people today access to the internet, social media and everything that brings is a fundamental part of their lives.
Once again, however, far too much detail, and the specifics of how this legislation will fundamentally change the user experience, is simply missing from the Bill. When it comes to harmful content that is not illegal, the Government have provided no detail. Despite the Bill’s being years in the making, we are no closer to understanding the impact it will have on users.
The Bill in its current draft has a huge focus on the tools for removing and moderating harmful content, rather than ensuring that design features are in place to make services systematically safer for all of us. The Government are thus at real risk of excluding children from being able to participate in the digital world freely and safely. The Bill must not lock children out of services they are entitled to use; instead, it must focus on making those services safe by design.
I will push the Minister on this particular point. We are all eager to hear what exact harms platforms will have to take steps to address and mitigate. Will it be self-harm? Will it perhaps be content promoting eating disorders, racism, homophobia, antisemitism and misogyny? One of the key problems with the Bill is the failure to make sure that the definitions of “legal but harmful” content are laid out within it. Will the Minister therefore commit to amending the Bill to address this and to allow for proper scrutiny? As we have heard, the Government have also completely failed to address what stakeholders term the problem of breadcrumbing. I would be grateful if the Minister outlined what steps the Government will be taking to address this issue, as there is clearly a loophole in the Bill that would allow this harmful practice to continue.
As we have heard, the gaps in the Bill, sadly, do not end there. Women and girls are disproportionately likely to be affected by online abuse and harassment. Online violence against women and girls is defined as including but not limited to
“intimate image abuse, online harassment, the sending of unsolicited explicit images, coercive ‘sexting’, and the creation and sharing of ‘deepfake’ pornography.”
This Bill is an important step forward but it will need significant strengthening to make online spaces safe for women and girls. While we welcome the steps by the Government to include cyber-flashing in the Bill, it must go further in other areas. Misogyny should be included as a harm to adults that online platforms have a duty to prevent from appearing on them. As colleagues will be aware, Instagram has been completely failing to tackle misogynistic abuse sent via direct message. The Centre for Countering Digital Hate has exposed what it terms an “epidemic of misogynistic abuse”, 90% of which has been completely and utterly ignored by Instagram, even when it has been reported to moderators. The Government must see sense and put violence against women and girls into the Bill, and it must also form a central pillar of regulation around legal but harmful content. Will the Minister therefore commit to at least outlining the definitions of “legal but harmful” content, both for adults and children, in the Bill?
Another major omission from the Bill in as currently drafted is its rather arbitrary categorisation of platforms based on size versus harm. As mentioned by many hon. Members, the categorisation system as it currently stands will completely fail to address some of the most extreme harms on the internet. Thanks to the fantastic work of organisations such as Hope not Hate and the Antisemitism Policy Trust, we know that smaller platforms such as 4chan and BitChute have significant numbers of users who are highly motivated to promote extremely dangerous content. The Minister must accept that his Department has been completely tone-deaf on this particular point, and—he must listen to what hon. Members have said today—its decision making utterly inexplicable. Rather than an arbitrary size cut-off, the regulator must instead use risk levels to determine which category a platform should fall into so that harmful and dangerous content does not slip through the net. Exactly when will the Minister’s Department publish more information on the detail around this categorisation system? Exactly what does he have to say to those people, including many Members here today, who have found themselves the victim of abusive content that has originated on these hate-driven smaller platforms? How will this Bill change their experience of being online? I will save him the energy, because we all know the real answer: it will do little to change the situation.
This Bill was once considered a once-in-a-generation opportunity to improve internet safety for good, and Labour wants to work with the Government to get this right. Part of our frustration is due to the way in which the Government have failed to factor technological change and advancement—which, as we all know, and as we have heard today, can be extremely rapid—into the workings of this Bill. While the Minister and I disagree on many things, I am sure that we are united in saying that no one can predict the future, and that is not where my frustrations lie. Instead, I feel that the Bill has failed to address issues that are developing right now—from developments in online gaming to the expansion of the metaverse. These are complicated concepts but they are also a reality that we as legislators must not shy away from.
The Government have repeatedly said that the Bill’s main objective is to protect children online, and of course it goes without saying that Labour supports that. Yet with the Bill being so restricted to user-to-user services, there are simply too many missed opportunities to deal with areas where children, and often adults, are likely to be at risk of harm. Online gaming is a space that is rightly innovative and fast-changing, but the rigid nature of how services have been categorised will soon mean that the Bill is outdated long before it has had a chance to have a positive impact. The same goes for the metaverse.
While of course Labour welcomes the Government’s commitment to prevent under-18s from accessing pornography online, the Minister must be realistic. A regime that seeks to ban rather than prevent is unlikely to ever be able to keep up with the creative, advanced nature of the tech industry. For that reason, I must press the Minister on exactly how this Bill will be sufficiently flexible and future-proofed to avoid a situation whereby it is outdated by the time it finally receives Royal Assent. We must make sure that we get this right, and the Government know that they could and can do more. I therefore look forward to the challenge and to working with colleagues across the House to strengthen this Bill throughout its passage.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)
The piece of legislation before the House this evening is truly groundbreaking, because no other jurisdiction anywhere in the world has attempted to legislate as comprehensively as we are beginning to legislate here. For too long, big tech companies have exposed children to risk and harm, as evidenced by the tragic suicide of Molly Russell, who was exposed to appalling content on Instagram, which encouraged her, tragically, to take her own life. For too long, large social media firms have allowed illegal content to go unchecked online.
Richard Burgon (Leeds East) (Lab)
I have spoken before about dangerous suicide-related content online. The Minister mentions larger platforms. Will the Government go away and bring back two amendments based on points made by the Samaritans? One would bring smaller platforms within the scope of sanctions, and the second would make the protective aspects of the Bill cover people who are over 18, not just those who are under 18. If the Government do that, I am sure that it will be cause for celebration and that Members on both sides of the House will give their support.
Chris Philp
It is very important to emphasise that, regardless of size, all platforms in the scope of the Bill are covered if there are risks to children.
A number of Members, including the right hon. Member for Barking (Dame Margaret Hodge) and my hon. Friend the Member for Brigg and Goole (Andrew Percy), have raised the issue of small platforms that are potentially harmful. I will give some thought to how the question of small but high-risk platforms can be covered. However, all platforms, regardless of size, are in scope with regard to content that is illegal and to content that is harmful to children.
For too long, social media firms have also arbitrarily censored content just because they do not like it. With the passage of this Bill, all those things will be no more, because it creates parliamentary sovereignty over how the internet operates, and I am glad that the principles in the Bill command widespread cross-party support.
The pre-legislative scrutiny that we have gone through has been incredibly intensive. I thank and pay tribute to the DCMS Committee and the Joint Committee for their work. We have adopted 66 of the Joint Committee’s recommendations. The Bill has been a long time in preparation. We have been thoughtful, and the Government have listened and responded. That is why the Bill is in good condition.
Chris Philp
I must make some progress, because I am almost out of time and there are lots of things to reply to.
I particularly thank previous Ministers, who have done so much fantastic work on the Bill. With us this evening are my hon. Friend the Member for Gosport (Dame Caroline Dinenage) and my right hon. Friends the Members for Maldon (Mr Whittingdale) and for Basingstoke (Mrs Miller), but not with us this evening are my right hon. and learned Friend the Member for Kenilworth and Southam (Jeremy Wright), who I think is in America, and my right hon. Friends the Members for Hertsmere (Oliver Dowden) and for Staffordshire Moorlands (Karen Bradley), all of whom showed fantastic leadership in getting the Bill to where it is today. It is a Bill that will stop illegal content circulating online, protect children from harm and make social media firms be consistent in the way they handle legal but harmful content, instead of being arbitrary and inconsistent, as they are at the moment.
Chris Philp
I have so many points to reply to that I have to make some progress.
The Bill also enshrines, for the first time, free speech—something that we all feel very strongly about—but it goes beyond that. As well as enshrining free speech in clause 19, it gives special protection, in clauses 15 and 16, for content of journalistic and democratic importance. As my right hon. Friend the Secretary of State indicated in opening the debate, we intend to table a Government amendment—a point that my right hon. Friends the Members for Maldon and for Ashford (Damian Green) asked me to confirm—to make sure that journalistic content cannot be removed until a proper right of appeal has taken place. I am pleased to confirm that now.
We have made many changes to the Bill. Online fraudulent advertisers are now banned. Senior manager liability will commence immediately. Online porn of all kinds, including commercial porn, is now in scope. The Law Commission communication offences are in the Bill. The offence of cyber-flashing is in the Bill. The priority offences are on the face of the Bill, in schedule 7. Control over anonymity and user choice, which was proposed by my hon. Friend the Member for Stroud (Siobhan Baillie) in her ten-minute rule Bill, is in the Bill. All those changes have been made because this Government have listened.
Let me turn to some of the points made from the Opposition Front Bench. I am grateful for the in-principle support that the Opposition have given. I have enjoyed working with the shadow Minister and the shadow Secretary of State, and I look forward to continuing to do so during the many weeks in Committee ahead of us, but there were one or two points made in the opening speech that were not quite right. This Bill does deal with systems and processes, not simply with content. There are risk assessment duties. There are safety duties. There are duties to prevent harm. All those speak to systems and processes, not simply content. I am grateful to the Chairman of the Joint Committee, my hon. Friend the Member for Folkestone and Hythe (Damian Collins), for confirming that in his excellent speech.
If anyone in this House wants confirmation of where we are on protecting children, the Children’s Commissioner wrote a joint article with the Secretary of State in the Telegraph—I think it was this morning—confirming her support for the measures in the Bill.
When it comes to disinformation, I would make three quick points. First, we have a counter-disinformation unit, which is battling Russian disinformation night and day. Secondly, any disinformation that is illegal, that poses harm to children or that comes under the definition of “legal but harmful” in the Bill will be covered. And if that is not enough, the Minister for Security and Borders, who is sitting here next to me, intends to bring forward legislation at the earliest opportunity to cover counter-hostile state threats more generally. This matter will be addressed in the Bill that he will prepare and bring forward.
I have only four minutes left and there are so many points to reply to. If I do not cover them all, I am very happy to speak to Members individually, because so many important points were made. The right hon. Member for Barking asked who was going to pay for all the Ofcom enforcement. The taxpayer will pay for the first two years while we get ready—£88 million over two years—but after that Ofcom will levy fees on these social media firms, so they will pay for regulating their activities. I have already replied to the point she rightly raised about smaller but very harmful platforms.
My hon. Friend the Member for Meriden (Saqib Bhatti) has been campaigning tirelessly on the question of combating racism. This Bill will deliver what he is asking for.
The hon. Member for Batley and Spen (Kim Leadbeater) and my hon. Friend the Member for Watford (Dean Russell) asked about Zach’s law. Let me take this opportunity to confirm explicitly that clause 150—the harmful communication clause, for where a communication is intended to cause psychological distress—will cover epilepsy trolling. What happened to Zach will be prevented by this Bill. In addition, the Ministry of Justice and the Law Commission are looking at whether we can also have a standalone provision, but let me assure them that clause 150 will protect Zach.
My right hon. Friend the Member for Maldon asked a number of questions about definitions. Companies can move between category 1 and category 2, and different parts of a large conglomerate can be regulated differently depending on their activities. Let me make one point very clear—the hon. Member for Bristol North West (Darren Jones) also raised this point. When it comes to the provisions on “legal but harmful”, neither the Government nor Parliament are saying that those things have to be taken down. We are not censoring in that sense. We are not compelling social media firms to remove content. All we are saying is that they must do a risk assessment, have transparent terms and conditions, and apply those terms and conditions consistently. We are not compelling, we are not censoring; we are just asking for transparency and accountability, which is sorely missing at the moment. No longer will those in Silicon Valley be able to behave in an arbitrary, censorious way, as they do at the moment—something that Members of this House have suffered from, but from which they will no longer suffer once this Bill passes.
The hon. Member for Bristol North West, who I see is not here, asked a number of questions, one of which was about—[Interruption.] He is here; I do apologise. He has moved—I see he has popped up at the back of the Chamber. He asked about codes of practice not being mandatory. That is because the safety duties are mandatory. The codes of practice simply illustrate ways in which those duties can be met. Social media firms can meet them in other ways, but if they fail to meet those duties, Ofcom will enforce. There is no loophole here.
When it comes to the ombudsman, we are creating an internal right of appeal for the first time, so that people can appeal to the social media firms themselves. There will have to be a proper right of appeal, and if there is not, they will be enforced against. We do not think it appropriate for Ofcom to consider every individual complaint, because it will simply be overwhelmed, by probably tens of thousands of complaints, but Ofcom will be able to enforce where there are systemic failures. We feel that is the right approach.
I say to the hon. Member for Plymouth, Sutton and Devonport (Luke Pollard) that my right hon. Friend the Minister for Security and Borders will meet him about the terrible Keyham shooting.
The hon. Member for Washington and Sunderland West (Mrs Hodgson) raised a question about online fraud in the context of search. That is addressed by clause 35, but we do intend to make drafting improvements to the Bill, and I am happy to work with her on those drafting improvements.
I have been speaking as quickly as I can, which is quite fast, but I think time has got away from me. This Bill is groundbreaking. It will protect our citizens, it will protect our children—[Hon. Members: “Sit down!”]—and I commend it to the House.
Question put and agreed to.
Bill accordingly read a Second time.
Madam Deputy Speaker (Dame Eleanor Laing)
The Minister just made it. I have rarely seen a Minister come so close to talking out his own Bill.
Online Safety Bill (Programme)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Online Safety Bill:
Committal
(1) The Bill shall be committed to a Public Bill Committee.
Proceedings in Public Bill Committee
(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Thursday 30 June 2022.
(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
Consideration and Third Reading
(4) Proceedings on Consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.
(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and Third Reading.
Other proceedings
(7) Any other proceedings on the Bill may be programmed.—(Michael Tomlinson.)
Question agreed to.
Online Safety Bill (Money)
Queen’s recommendation signified.
Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),
That, for the purposes of any Act resulting from the Online Safety Bill, it is expedient to authorise the payment out of money provided by Parliament of:
(1) any expenditure incurred under or by virtue of the Act by the Secretary of State, and
(2) any increase attributable to the Act in the sums payable under any other Act out of money so provided.—(Michael Tomlinson.)
Question agreed to.
Online Safety Bill (Ways and Means)
Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),
That, for the purposes of any Act resulting from the Online Safety Bill, it is expedient to authorise:
(1) the charging of fees under the Act, and
(2) the payment of sums into the Consolidated Fund.—(Michael Tomlinson.)
Question agreed to.
Deferred Divisions
Motion made, and Question put forthwith (Standing Order No. 41A(3)),
That at this day’s sitting, Standing Order 41A (Deferred divisions) shall not apply to the Motion in the name of Secretary Nadine Dorries relating to Online Safety Bill: Carry-over.—(Michael Tomlinson.)
Question agreed to.
Madam Deputy Speaker (Dame Eleanor Laing)
Order. Really, people just ought to have more courtesy than to get up and, when there is still business going on in this House, to behave as if it is not sitting because it is after 10 o’clock. We really have to observe courtesy at all times in here.
Online Safety Bill (Carry-Over)
Motion made, and Question put forthwith (Standing Order No. 80A(1)(a)),
That if, at the conclusion of this Session of Parliament, proceedings on the Online Safety Bill have not been completed, they shall be resumed in the next Session.—(Michael Tomlinson.)
Question agreed to.
Online Safety Bill (First sitting)
Tuesday 24th May 2022
(3 years, 8 months ago)
Public Bill CommitteesOnline Safety Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 24 May 2022 - (24 May 2022)
The Chair
We are now sitting in public and the proceedings are being broadcast. Before we begin, I have a few announcements. Hansard colleagues would be grateful if Members could email their speaking notes to hansardnotes@parliament.uk. Please switch electronic devices to silent. Tea, coffee, and other drinks, apart from the water provided, are not allowed during sittings. Date Time Witness Tuesday 24 May Until no later than 10.05 am Ofcom Tuesday 24 May Until no later than 10.50 am Dame Rachel de Souza, Children’s Commissioner for England; Barnado’s; National Society for the Prevention of Cruelty to Children (NSPCC) Tuesday 24 May Until no later than 11.25 am TikTok; Twitter Tuesday 24 May Until no later than 2.45 pm Meta; Microsoft; Google Tuesday 24 May Until no later than 3.30 pm Professor Clare McGlynn, Professor of Law, Durham University; Refuge; End Violence Against Women Tuesday 24 May Until no later than 4.15 pm techUK; Online Safety Tech Industry Association (OSTIA); Crisp Tuesday 24 May Until no later than 5.00 pm Match Group; Bumble; TrustElevate Tuesday 24 May Until no later than 5.30 pm Marie Collins Foundation; Internet Watch Foundation (IWF) Tuesday 24 May Until no later than 6.00 pm Demos; FairVote Thursday 26 May Until no later than 12.15 pm Catch22; Full Fact; Carnegie UK Trust Thursday 26 May Until no later than 1.00 pm Antisemitism Policy Trust; Clean up the Internet; HOPE not hate Thursday 26 May Until no later than 2.25 pm Information Commissioner’s Office Thursday 26 May Until no later than 2.55 pm Kick It Out; The Football Association Thursday 26 May Until no later than 3.25 pm Center for Countering Digital Hate; Reset Thursday 26 May Until no later than 3.55 pm News Media Association; Guardian Media Group Thursday 26 May Until no later than 4.40 pm Personal Investment Management & Financial Advice Association (PIMFA); Which?; Money Saving Expert Thursday 26 May Until no later than 5.05 pm Frances Haugen
Today, we will first consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication, and a motion to allow us to deliberate in private about our questions before the oral evidence session. In view of the timetable available, I hope that we can take these matters formally without debate. I first call the Minister to move the programme motion standing in his name, which was discussed on Thursday by the Programming Sub-Committee for this Bill.
Ordered,
That—
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 24 May) meet—
(a) at 2.00 pm on Tuesday 24 May;
(b) at 11.30 am and 2.00 pm on Thursday 26 May;
(c) at 9.25 am and 2.00 pm on Tuesday 7 June;
(d) at 11.30 am and 2.00 pm on Thursday 9 June;
(e) at 9.25 am and 2.00 pm on Tuesday 14 June;
(f) at 11.30 am and 2.00 pm on Thursday 16 June;
(g) at 9.25 am and 2.00 pm on Tuesday 21 June;
(h) at 11.30 am and 2.00 pm on Thursday 23 June;
(i) at 9.25 am and 2.00 pm on Tuesday 28 June;
(j) at 11.30 am and 2.00 pm on Thursday 30 June;
(2) the Committee shall hear oral evidence in accordance with the following Table:
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 3; Schedules 1 and 2; Clauses 4 to 32; Schedule 3; Clauses 33 to 38; Schedule 4; Clauses 39 to 52; Schedules 5 to 7; Clauses 53 to 64; Schedule 8; Clauses 65 to 67; Schedule 9; Clauses 68 to 80; Schedule 10; Clauses 81 to 91; Schedule 11; Clauses 92 to 122; Schedule 12; Clauses 123 to 158; Schedule 13; Clauses 159 to 161; Schedule 14; Clauses 162 to 194; new Clauses; new Schedules; remaining proceedings on the Bill;
(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 30 June.—(Chris Philp.)
The Chair
The Committee will therefore proceed to line-by-line consideration of the Bill on Tuesday 7 June at 9.25 am. I call the Minister to move the motion about written evidence.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Chris Philp.)
The Chair
Copies of written evidence to the Committee will be made available in the Committee room each day and will be circulated to Members by email. I call the Minister to move the motion about deliberating in private.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Chris Philp.)
The Chair
We are now sitting in public again, and the proceedings are being broadcast. Before we start hearing from the witnesses, do any Members wish to make declarations of interest in connection with the Bill?
Alex Davies-Jones (Pontypridd) (Lab)
The witness on Thursday’s sitting, Danny Stone from the Antisemitism Policy Trust, is an informal secretariat in a personal capacity to the all-party parliamentary group on wrestling, which I co-chair.
Dean Russell (Watford) (Con)
I refer Members to my entry in the Register of Members’ Financial Interests regarding work I did six months ago for a business called DMA.
The Chair
We will now hear oral evidence from Kevin Bakhurst, group director of broadcasting and online content at Ofcom, and Richard Wronka, director of Ofcom’s online harms policy. Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters within the scope of the Bill, and we must stick to the timings in the programme motion that the Committee has agreed. For this witness panel, we have until 10.05 am. Could the witnesses please introduce themselves for the record?
Kevin Bakhurst: Good morning. I am Kevin Bakhurst, group director at Ofcom for broadcasting and online content.
Richard Wronka: I am Richard Wronka, a director in Ofcom’s online safety policy team.
Alex Davies-Jones
Q
Kevin Bakhurst: We should say that we feel the Bill has given us a very good framework to regulate online safety. We have been working closely with the Department for Digital, Culture, Media and Sport to make sure that the Bill gives us a practical, deliverable framework. There is no doubt that it is a challenge. As you rightly say, there will be potentially 25,000 platforms in scope, but we feel that the Bill sets out a series of priorities really clearly in terms of categories.
It is also for us to set out—we will be saying more about this in the next couple of months—how we will approach this, and how we will prioritise certain platforms and types of risk. It is important to say that the only way of achieving online safety is through what the Bill sets out, which is to look at the systems in place at the platforms, and not the individual pieces of content on them, which would be unmanageable.
Alex Davies-Jones
Q
Richard Wronka: We completely recognise the concerns that have been raised by stakeholders, and we have been speaking to many of them ourselves, so we have first-hand experience. I think my starting point is that the Bill captures those high-risk services, which is a really important feature of it. In particular, responsibilities around the legal content apply across all services in scope. That means that, in practice, when we are regulating, we will take a risk-based approach to whom we choose to engage with, and to where we focus our effort and attention.
We recognise that some of the debate has been about the categorisation process, which is intended to pick up high-risk and high-reach services. We understand the logic behind that. Indeed, I think we would have some concerns about the workability of an approach that was purely risk-based in its categorisation. We need an approach that we can put into operation. Currently, the Bill focuses on the reach of services and their functionality. We would have some concerns about a purely risk-based approach in terms of whether it was something that we could put into practice, given the number of services in scope.
Alex Davies-Jones
Q
Richard Wronka: At the moment, the category 2B service would have transparency reporting requirements. That would be helpful, because it would be one way that the nature of harmful content on that platform could be brought to our attention, and to the public’s attention. We would also be looking at approaches that we could use to monitor the whole scope of the services, to ensure that we had a good grip of who was growing quickest and where the areas of risk were. Some of that is through engaging with the platforms themselves and a whole range of stakeholders, and some of it is through more advanced data and analytical techniques—“supervision technology”, as it is known in the regulatory jargon.
On the specifics of your question, if a company was growing very quickly, the Bill gives us the ability to look at that company again, to ask it for information to support a categorisation decision, and to recategorise it if that is the right approach and if it has met the thresholds set out by the Secretary of State. One of the thresholds regards the number of users, so if a company has moved over that threshold, we look to act as quickly as possible while running a robust regulatory process.
Alex Davies-Jones
Q
Kevin Bakhurst: May I answer this? We have some experience of this already in the video-sharing platform regime, which is much more limited in scope, and we are already regulating a number of platforms, ranging from some very big ones such as Twitch, TikTok and Snap, down to some much smaller platforms that have caused us some concerns. We think we have the tools, but part of our approach will also be to focus on high-risk and high-impact content, even if it comes through small platforms. That is what we have already done with the video-sharing platform regime. We have to be agile enough to capture that and to move resources to it. We are doing that already with the video-sharing platform regime, even though we have only been regulating it for less than a year.
The Chair
Maria Miller has indicated that she would like to ask a question, so if I may, I will bring her in.
Alex Davies-Jones
Q
I am just trying to get to the intricacies of this, and of what would happen during the time that it would take for you to recategorise. This platform, which is disseminating harm to both children and adults, would be allowed to carry on while the recategorisation process is under way. There is no mechanism in the Bill to stop that from happening.
Richard Wronka: A really important point here is that we will be regulating that platform from the outset for illegal content and, potentially, for how it protects children on its platform, irrespective of the categorisation approach. That is really important. We will be able to take action, and take action quickly, irrespective of how the platform is categorised. Categorisation really determines whether the adult “legal but harmful” provisions apply. That is the bit that really matters in this context.
It is worth reminding ourselves what those provisions mean: they are more a transparency and accountability measure. Those categorised category 1 platforms will need to have clear terms and conditions applied to adult “legal but harmful” content, and they will need to implement those consistently. We would expect the really serious and egregious concerns to be picked up by the “illegal” part of the regime, and the protection-of-children part of the regime. The categorisation process may go on. It may take a little time, but we will have tools to act in those situations.
Alex Davies-Jones
Q
Kevin Bakhurst: We do have some experience across the various sectors that we regulate, but being directed by the Secretary of State does not happen very often. Specifically on the Bill, our strong feeling is that we think it entirely appropriate, and that the Secretary of State should be able to direct us on matters of national security and terrorist content. However, we have some concerns about the wider direction powers of the Secretary of State, and particularly the grounds on which the Secretary of State can direct public policy, and we have expressed those concerns previously.
We feel it is important that the independence of a regulator can be seen to be there and is there in practice. Legally, we feel it important that there is accountability. We have some experience of being taken to judicial review, and there must be accountability for the codes of practice that we put in place. We must be able to show why and how we have created those codes of practice, so that we can be accountable and there is absolute clarity between regulator and Government.
Mrs Miller
Q
Kevin Bakhurst: Richard has been leading this process, so he can give more detail on it, but suffice to say, we have been engaging closely with DCMS over the last year or so, and we appreciate the fact that it has taken on board a number of our concerns. What we felt we needed from the Bill was clarity as far as possible, and a balance between clarity and flexibility for this regime, which is a very fast-moving field. We feel, by and large, that the Bill has achieved that.
We still have concerns about one or two areas, to pick up on your question. We feel it is really important—hopefully this is something the Committee can contribute to—that the definition of “illegal content” is really clear for platforms, and particularly the area of intent of illegality, which at the moment might be quite tricky for the platforms to pick up on.
Richard Wronka: I completely agree with Kevin that the Bill as it stands gives us a good framework. I think the pre-legislative scrutiny process has been really helpful in getting us there, and I point out that it is already quite a broad and complex regime. We welcome the introduction of issues such as fraudulent advertising and the regulation of commercial pornographic providers, but I think there is a point about ensuring that the Bill does not expand too much further, because that might raise some practical and operational issues for us.
I completely agree with Kevin that clarity in the Bill regarding illegal content and what constitutes that is really important. An additional area that requires clarity is around some of the complex definitions in the Bill, such as journalistic content and democratically important content. Those are inherently tricky issues, but any extra clarity that Parliament can provide in those areas would be welcome.
Mrs Miller
Q
Richard Wronka: I would start by saying that this is a fluid area. We have had a number of conversations with the Law Commission in particular and with other stakeholders, which has been really helpful. We recognise that the Bill includes four new offences, so there is already some fluidity in this space. We are aware that there are other Law Commission proposals that the Government are considering. Incitement to self-harm and flashing imagery that might trigger epilepsy are a couple of issues that come to mind there. Ultimately, where the criminal law sits is a matter for Parliament. We are a regulator: our role here is to make sure that the criminal law is reflected in the regulatory regime properly, rather than to determine or offer a view on where the criminal law should sit. Linking back to our point just a minute ago, we think it is really important that there is as much clarity as possible about how platforms can take some of those potentially quite tricky decisions about whether content meets the criminal threshold.
Mrs Miller
Q
Kevin Bakhurst: One area that is very important and which is in the Bill and one of our responsibilities is to make sure there is a sufficiently robust and reactive complaints process from the platforms—one that people feel they can complain to and be heard—and an appeals process. We feel that that is in the Bill. We already receive complaints at Ofcom from people who have issues about platforms and who have gone to the platforms but do not feel their complaints have been properly dealt with or recognised. That is within the video-sharing platform regime. Those individual complaints, although we are not going to be very specific in looking at individual pieces of material per se, are very useful to alert us where there are issues around particular types of offence or harm that the platforms are not seen to be dealing with properly. It will be a really important part of the regime to make sure that platforms provide a complaints process that is easy to navigate and that people can use quite quickly and accessibly.
Richard Wronka: An additional point I would make, building on that, is that this is a really complex ecosystem. We understand that and have spent a lot of the last two or three years trying to get to grips with that complex ecosystem and building relationships with other participants in the ecosystem. It brings in law enforcement, other regulators, and organisations that support victims of crime or online abuse. We will need to find effective ways to work with those organisations. Ultimately, we are a regulator, so there is a limit to what we can do. It is important that those other organisations are able to operate effectively, but that is perhaps slightly outside our role.
Barbara Keeley (Worsley and Eccles South) (Lab)
Q
Richard Wronka: I think our starting point here is that we think transparency is a really important principle within the regime—a fundamental principle. There are specific provisions in the Bill that speak to that, but more generally we are looking for this regime to usher in a new era of transparency across the tech sector, so that users and other participants in this process can be clearer about what platforms are doing at the moment, how effective that is and what more might be done in the future. That is something that will be a guiding principle for us as we pick up regulation.
Specifically, the Bill provides for transparency reports. Not all services in scope will need to provide transparency reports, but category 1 and 2 services will be required to produce annual transparency reports. We think that is really important. At the moment, risk assessments are not intended to be published—that is not provided for in the Bill—but the transparency reports will show the effectiveness of the systems and processes that those platforms have put in place.
Barbara Keeley
Q
Richard Wronka: I think what is important for us as a regulator is that we are able to access those risk assessments; and for the biggest services, the category 1 services, we would be expecting to do that routinely through a supervisory approach. We might even do that proactively, or where services have come to us for dialogue around those—
Barbara Keeley
Q
Richard Wronka: Some services may wish to publish the risk assessments. There is nothing in the Bill or in our regulated approach that would prevent that. At the moment, I do not see a requirement in the Bill to do that. Some services may have concerns about the level of confidential information in there. The important point for us is that we have access to those risk assessments.
Kevin Bakhurst: Picking up on the risk assessments, it is a tricky question because we would expect those assessments to be very comprehensive and to deal with issues such as how algorithms function, and so on. There is a balance between transparency, which, as Richard says, we will drive across the regime—to address information that can harm, or people who are trying to behave badly online or to game the system—and what the regulator needs in practical terms. I am sure the platforms will be able to talk to you more about that.
Barbara Keeley
Q
There is also a question of timing. The reports suggested that the new hub and jobs will come into play in 2025. I am sure that everyone here wants to see the Bill taking effect sooner. Ofcom will need to do a lot of reviews and reporting in the first year after the Bill receives Royal Assent. How will that be possible if people are not in post until 2025?
Kevin Bakhurst: They are both big questions. I will take the first part and maybe Richard can take the second one about the timing. On the resourcing, it is important to say publicly that we feel strongly that, very unusually, we have had funding from Government to prepare for this regime. I know how unusual that is; I was at a meeting with the European regulators last week, and we are almost unique in that we have had funding and in the level of funding that we have had.
The funding has meant that we are already well advanced in our preparations. We have a team of around 150 people working on online safety across the organisation. A number are in Manchester, but some are in London or in our other offices around the UK. It is important to say that that funding has helped us to get off to a really strong start in recruiting people across the piece—not just policy people. Importantly, we have set up a new digital function within Ofcom and recruited a new chief technology officer, who came from Amazon Alexa, to head up that function.
The funding has allowed us to really push hard into this space, which is not easy, and to recruit some of the skills we feel we need to deliver this regime as effectively and rapidly as possible. I know that resourcing is not a matter within the Bill; it is a separate Treasury matter. Going forward though, we feel that, in the plans, we have sufficient resourcing to deliver what we are being asked to deliver. The team will probably double in size by the time we actually go live with the regime. It is a significant number of people.
Some significant new duties have been added in, such as fraudulent advertising, which we need to think carefully about. That is an important priority for us. It requires a different skillset. It was not in the original funding plan. If there are significant changes to the Bill, it is important that we remain alive to having the right people and the right number of people in place while trying to deliver with maximum efficiency. Do you want to talk about timing, Richard?
Richard Wronka: All I would add to that, Kevin, is that we are looking to front-load our recruitment so that we are ready to deliver on the Bill’s requirements as quickly as possible once it receives Royal Assent and our powers commence. That is the driving motivation for us. In many cases, that means recruiting people right now, in addition to the people we have already recruited to help with this.
Clearly there is a bit of a gating process for the Bill, so we will need a settled legislative framework and settled priority areas before we can get on with the consultation process. We will look to run that consultation process as swiftly as possible once we have those powers in place. We know that some stakeholders are very keen to see the Bill in place and others are less enthusiastic, so we need to run a robust process that will stand the test of time.
The Bill itself points us towards a phased process. We think that illegal content, thanks to the introduction of priority illegal content in the Bill, with those priority areas, is the area on which we can make the quickest progress as soon as the Bill achieved Royal Assent.
The Chair
Thank you. I intend to bring in the Minister at about 10 o’clock. Kirsty Blackman, Kim Leadbeater and Dean Russell have indicated that they wish to ask questions, so let us try to keep to time.
Kirsty Blackman (Aberdeen North) (SNP)
Q
Kevin Bakhurst: There is a particular area on reasons of public policy for the Secretary of State to direct us on codes that we have some concern about. It is more on practicality than independence, but clearly for the platforms, and we have had a lot of discussions with them, the independence of a regulator—that is, a regulatory regime that is essentially about content—is absolutely critical, and it is a priority for us to show that we are independent.
Kirsty Blackman
Q
Richard Wronka: Yes, we fully anticipate that gaming services, and particularly the messaging functionality that is often integrated into those services, will be captured within the scope of the regime. We do think that the Bill, on the whole, gives us the right tools to regulate those services.
Kirsty Blackman
Q
Kevin Bakhurst: Overall, we feel that it is. By and large, the balance between certainty and flexibility in the Bill is probably about right and will allow some flexibility in future, but it is very hard to predict what other harms may emerge. We will remain as flexible as possible.
Richard Wronka: There are some really important updating tools in the Bill. The ability for the Secretary of State to introduce new priority harms or offences—with the approval of Parliament, of course—is really important.
Kim Leadbeater (Batley and Spen) (Lab)
Q
Richard Wronka: I will cover the codes first. You are absolutely right that the Bill requires Ofcom to publish codes of practice, particularly on CSEA and on terror, as well as on fraudulent advertising and other areas. We are doing the work right now so that we are ready to progress with that process as soon as we get powers and duties, because it is really important that we are ready to move as quickly as possible. We will set out further detail on exactly how we plan to do that in a roadmap document that we are looking to publish before the summer break, so that will provide some of the detail.
A really important point here is that the Bill quite rightly covers a wide set of harms. We are mindful of the fact that the temptation of having a code that covers every single harm could be counterproductive and confusing for platforms, even for those that want to comply and do the right thing. One of the balancing acts for us as we produce that code framework will be to get the right coverage for all the issues that everyone is rightly concerned about, but doing that in a way that is streamlined and efficient, so that services can apply the provisions of those codes.
Richard Wronka: Shall I pick up on the second bit very quickly? I think you are right; this is one of our central concerns about the definitions. As far as possible, this should be a matter for Parliament. It is really important that to know Parliament has a view on this. Ultimately, the regulator will take a view based on what Parliament says. We have some experience in this area, but as Richard said, we recognise the challenge—it is extremely complex. We can see the policy intent of doing it, quite rightly, and the importance of enshrining freedom of expression as far as possible, but Parliament can help to add clarity and, as you rightly say, be aware of some of the potential loopholes. At the moment, someone could describe themselves as a citizen journalist; where does that leave us? I am not quite sure. Parliament could help to clarify that, and we would be grateful.
Dean Russell
Q
Richard Wronka: This picks up the point we discussed earlier, which is that I understand that the Government are considering proposals from the Law Commission to criminalise the sending of those kinds of images. It would not be covered by the illegal content duties as things stand, but if the Government conclude that it is right to criminalise those issues, it would automatically be picked up by the Bill.
Even so, the regime is not, on the whole, going to be able to pick up every instance of harm. It is about making sure that platforms have the right systems and processes. Where there is clear harm to individuals, we would expect those processes to be robust. We know there is work going on in the industry on that particular issue to try and drive forward those processes.
Dean Russell
Q
Kevin Bakhurst: This is a really important point, which Richard just tried to make. The Bill gives us a great range of tools to try and prevent harm as far as possible; I just think we need to get expectations right here. Unfortunately, this Bill will not result in no harm of any type, just because of the nature of the internet and the task that we face. We are ambitious about driving constant improvement and stopping and addressing the main harms, but it is not going to stop any particular harm. We will absolutely focus on the ones that have a significant impact, but unfortunately that is the nature of the web.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)
Q
“psychological harm amounting to serious distress”?
Therefore, sending somebody a flashing image with the intention of inducing an epileptic fit would be likely caught under this new harmful communications offence in clause 150, even before a separate future offence that may be introduced.
Richard Wronka: I think we can certainly understand the argument. I think it is important that the Bill is as clear as possible. Ultimately, it is for the courts to decide whether that offence would pick up these kinds of issues that we are talking about around flashing imagery.
Chris Philp
Q
You mentioned that you met recently with European regulators. Briefly, because we are short of time, were there any particular messages, lessons or insights you picked up in those meetings that might be of interest to the Committee?
Kevin Bakhurst: Yes, there were a number, and liaising with European regulators and other global regulators in this space is a really important strand of our work. It often said that this regime is a first globally. I think that is true. This is the most comprehensive regime, and it is therefore potentially quite challenging for the regulator. That is widely recognised.
The second thing I would say is that there was absolute recognition of how advanced we are in terms of the recruitment of teams, which I touched on before, because we have had the funding available to do it. There are many countries around Europe that have recruited between zero and 10 and are imminently going to take on some of these responsibilities under the Digital Services Act, so I think they are quite jealous.
The last thing is that we see continued collaboration with other regulators around the world as a really important strand, and we welcome the information-sharing powers that are in the Bill. There are some parallels, and we want to take similar approaches on areas such as transparency, where we can collaborate and work together. I think it is important—
The Chair
Order. I am afraid we have come to the end of the allotted time for questions. On behalf of the Committee, I thank our witnesses for their evidence.
Examination of Witnesses
Dame Rachel de Souza, Lynn Perry MBE and Andy Burrows gave evidence.
The Chair
We will now hear from the Children’s Commissioner, Dame Rachel de Souza; Lynn Perry, chief executive officer of Barnardo’s, who will be appearing via Zoom; and Andy Burrows, head of child safety at the National Society for the Prevention of Cruelty to Children. Could the new witnesses take their places, please?
We have until 10.50 am for this panel. Could the witnesses please introduce themselves for the record? We will take the witnesses in the room first.
Andy Burrows: I am Andy Burrows, the head of online safety policy at the NSPCC.
Dame Rachel de Souza: I am Rachel de Souza, Children’s Commissioner for England.
The Chair
And on the screen—[Interruption.] Uh-oh, it has frozen. We will have to come back to that. We will take evidence from the witnesses in the room until we have sorted out the problem with the screen.
Barbara Keeley
Q
Andy Burrows: Thank you for the question. We think that more could be built into the Bill to ensure that children’s needs and voices can be fed into the regime.
One of the things that the NSPCC would particularly like to see is provision for statutory user advocacy arrangements, drawing on the examples that we see in multiple other regulated sectors, where we have a model by which the levy on the firms that will cover the costs of the direct regulation also provides for funded user advocacy arrangements that can serve as a source of expertise, setting out children’s needs and experiences.
A comparison here would be the role that Citizens Advice plays in the energy and postal markets as the user voice and champion. We think that would be really important in bolstering the regulatory settlement. That can also help to provide an early warning function—particularly in a sector that is characterised by very rapid technological and market change—to identify new and emerging harms, and bolster and support the regulator in that activity. That, for us, feels like a crucial part of this jigsaw.
Given the very welcome systemic approach of the regime, that early warning function is particularly important, because there is the potential that if harms cannot be identified quickly, we will see a lag where whole regulatory cycles are missed. User advocacy can help to plug that gap, meaning that harms are identified at an earlier stage, and then the positive design of the process, with the risk profiles and company risk assessments, means that those harms can be built into that particular cycle.
Dame Rachel de Souza: I was very pleased when the Government asked me, when I came into the role, to look at what more could be done to keep children safe online and to make sure that their voices went right through the passage of the Bill. I am committed to doing that. Obviously, as Children’s Commissioner, my role is to elevate children’s voices. I was really pleased to convene a large number of charities, internet safety organisations and violence against women and girls experts in a joint briefing to MPs to try to get children’s voices over.
I worry that the Bill does not do enough to respond to individual cases of abuse and that it needs to do more to understand issues and concerns directly from children. Children should not have to exhaust the platforms’ ineffective complaints routes, which can take days, weeks or even months. I have just conducted a survey of 2,000 children and asked them about their experiences in the past month. Of those 2,000 children, 50% had seen harmful content and 40% had tried to get content about themselves removed and had not succeeded. For me, there is something really important about listening to children and talking their complaints into account. I know you have a busy day, but that is the key point that I want to get across.
The Chair
Lynn Perry is back on the screen—welcome. Would you like to introduce yourself for the record and then answer the question? [Interruption.] Oh, she has gone again. Apparently the problem is at Lynn’s end, so we will just have to live with it; there is nothing we can do on this side.
Barbara Keeley
Q
Andy Burrows: The systemic regime is important. That will help to ensure that the regime can be future-proofed; clearly, it is important that we are not introducing a set of proposals and then casting them in aspic. But there are ways that the Bill could be more strongly future-proofed, and that links to ensuring that the regime can effectively map on to the dynamics of the child sexual abuse problem in particular.
Let me give a couple of examples of where we think the Bill could be bolstered. One is around placing a duty on companies to consider the cross-platform nature of harm when performing their risk assessment functions, and having a broad, overarching duty to ask companies to work together to tackle the child sexual abuse threat. That is very important in terms of the current dynamics of the problem. We see, for example, very well-established grooming pathways, where abusers will look to exploit the design features of open social networks, such as on Instagram or Snapchat, before moving children and abuse on to perhaps live-streaming sites or encrypted messaging sites.
The cross-platform nature of the threat is only going to intensify in the years ahead as we start to look towards the metaverse, for example. It is clear that the metaverse will be built on the basis of being cross-platform and interdependent in nature. We can also see the potential for unintended consequences from other regulatory regimes. For example, the Digital Markets Act recently passed by the EU has provisions for interoperability. That effectively means that if I wanted to send you a message on platform A, you could receive it on platform B. There is a potential unintended consequence there that needs to be mitigated; we need to ensure that there is a responsibility to address the harm potential that could come from more interoperable services.
This is a significant area where the Bill really can be bolstered to address the current dynamics of the problem and ensure that legislation is as effective as it possibly can be. Looking to the medium to long term, it is crucial to ensure that we have arrangements that are commensurate to the changing nature of technology and the threats that will emerge from that.
Dame Rachel de Souza: A simple answer from me: of course we cannot future-proof it completely, because of the changing nature of online harms and technology. I talked to a large number of 16 to 21-year-olds about what they wished their parents had known about technology and what they had needed to keep them safe, and they listed a range of things. No. 1 was age assurance—they absolutely wanted good age assurance.
However, the list of harms and things they were coming across—cyber-flashing and all this—is very much set in time. It is really important that we deal with those things, but they are going to evolve and change. That is why we have to build in really good cross-platform work, which we have been talking about. We need these tech companies to work together to be able to stay live to the issues. We also need to make sure that we build in proper advocacy and listen to children and deal with the issues that come up, and that the Bill is flexible enough to be able to grow in that way. Any list is going to get timed out. We need to recognise that these harms are there and that they will change.
The Chair
I will bring in Kim Leadbeater and then Maria Miller and Kirsty Blackman, but I will definitely bring in the Minister at 10.45 am.
Kim Leadbeater
Q
Dame Rachel de Souza: I have argued hard to get pornographic sites brought into the Bill. That is something very positive about the Bill, and I was really pleased to see that. Why? I have surveyed more than half a million children in my Big Ask survey and spoken recently to 2,000 children specifically about this issue. They are seeing pornography, mainly on social media sites—Twitter and other sites. We know the negative effects of that, and it is a major concern.
I am pleased to see that age assurance is in the Bill. We need to challenge the social media companies—I pull them together and meet them every six months—on getting this stuff off their sites and making sure that under-age children are not on their sites seeing some of these things. You cannot go hard enough in challenging the social media companies to get pornography off their sites and away from children.
Andy Burrows: Just to add to that, I would absolutely echo that we are delighted that part 5 of the Bill, with measures around commercial pornography, has been introduced. One of our outstanding areas of concern, which applies to pornography but also more broadly, is around clause 26, the children’s access assessment, where the child safety duties will apply not to all services but to services where there is a significant number of child users or children comprise a significant part of the user base. That would seem to open the door to some small and also problematic services being out of scope. We have expressed concerns previously about whether OnlyFans, for example, which is a very significant problem as a user-generated site with adult content, could be out of scope. Those are concerns that I know the Digital, Culture, Media and Sport Committee has recognised as well. We would very much like to see clause 26 removed from the Bill, which would ensure that we have a really comprehensive package in this legislation that tackles both commercial pornography and user-generated material.
The Chair
I think Lynn Perry is back. Are you with us, Lynn? [Interruption.] No—okay. We will move on to Maria Miller.
Mrs Miller
Q
Dame Rachel de Souza: I absolutely think that we need to look at independent advocacy and go further. I do not think the Bill does enough to respond to individual cases of abuse and to understand issues and concerns directly from children. Children should not have to exhaust platforms’ ineffective complaints routes. It can take days, weeks, months. Even a few minutes or hours of a nude image being shared online can be enormously traumatising for children.
That should inform Ofcom’s policies and regulation. As we know, the risks and harms of the online world are changing constantly. It serves a useful purpose as an early warning mechanism within online safety regulation. I would like to see independent advocacy that allows a proper representation service for children. We need to hear from children directly, and I would like to see the Bill go further on this.
Mrs Miller
Q
Dame Rachel de Souza: I think we need to make capacity. There is some—the NSPCC has its Childline and, as Children’s Commissioner, I have my own advocacy service for children in care. I think this should function in that way, with direct access. So I think that we can create it.
Andy Burrows: May I come in briefly? Our proposals for user advocacy reflect the clear “polluter pays” principle that we think should apply here, to help build and scale up that capacity, but the levy that is covering the direct cost of regulation should also provide really effective user advocacy. That is really important not only to help to give victims what they need in frontline services, but in ensuring that there is a strong counterbalance to some of the largest companies in the world for our sector, which has clear ambition but self-evident constraints.
Dame Rachel de Souza: One of the concerns that has come to me from children—I am talking about hundreds of thousands of children—over the past year is that there is not strong enough advocacy for them and that their complaints are not being met. Girls in particular, following the Everyone’s Invited concerns, have tried so hard to get images down. There is this almost medieval bait-out practice of girls’ images being shared right across platforms. It is horrendous, and the tech firms are not acting quickly enough to get those down. We need proper advocacy and support for children, and I think that they would expect that of us in this groundbreaking Bill.
Kirsty Blackman
Q
Dame Rachel de Souza: Good question. I applaud the Bill for what it does cover. We are looking at a Bill that, for the first time, is going to start protecting children’s rights online, so I am really pleased to see that. We have looked a bit at gaming in the past. In terms of harms, obviously the Bill does not cover gaming in full, but it does cover the safety aspects of children’s experience.
It is always good for us to be looking further. Gaming, we know, has some extremely harmful and individualistic issues with it, particularly around money and the profile of potential grooming and safety. In terms of communications, one of the reasons that I am so concerned about encryption and communications online is that it happens through gaming. We need to make sure that those elements are really firm.
Andy Burrows: It is vitally important that the gaming sector is in scope. We know that there are high-risk gaming sites—for example, Twitch—and gaming-adjacent services such as Discord. To go back to my earlier point about the need for cross-platform provisions to apply here, in gaming we can see grooming pathways that can take on a different character from those on social networks, for example, where we might see abuse pathways where that grooming is taking place at the same time, rather than sequentially from a gaming streaming service, say, to a gaming-adjacent platform such as Discord. I think it is very important that a regulator is equipped to understand the dynamics of the harms and how they will perhaps apply differently on gaming services. That is a very strong and important argument for use advocacy.
I would say a couple of things on oral communications. One-to-one oral communication are excluded from the Bill’s scope—legitimately—but we should recognise that there is a grooming risk there, particularly when that communication is embedded in a platform of wider functionality. There is an argument for a platform to consider all aspects of its functionality within the risk assessment process. Proactive scanning is a different issue.
There is a broader challenge for the Bill, and this takes us back to the fundamental objectives and the very welcome design based around systemic risk identification and mitigation. We know that right now, in respect of oral communications and livestream communications, the industry response is not as developed in terms of detecting and disrupting harm as it is for, say, text-based chat. In keeping with the risk assessment process, it should be clear that if platforms want to offer that functionality, they should have to demonstrate through the risk assessment process that they have high-quality, effective arrangements in place to detect and disrupt harm, and that should be the price of admission. If companies cannot demonstrate that, they should not be offering their services, because there is a high risk to children.
Kirsty Blackman
Q
Andy Burrows: I think that aspect is certainly worthy of consideration, because the key objective is that platforms should be incentivised to deliver safety by design initiatives. One area in the Bill that we would like to be amended is the user empowerment mechanism. That gives adults the ability to screen out anonymous accounts, for example, but those provisions do not apply to children. Some of those design features that introduce friction to the user experience are really important to help children, and indeed parents, have greater ownership of their experience.
Kirsty Blackman
Q
Andy Burrows: Child abuse breadcrumbing is a major area of concern for us. The term captures a range of techniques whereby abusers are able to use social networks to facilitate the discovery and the dissemination of child sexual abuse. The activity does not meet the criminal threshold in and of itself, but it effectively enables abusers to use online services as a shop window to advertise their sexual interest in children.
I will give a couple of fairly chilling examples of what I mean by that. There is a phenomenon called “tribute sites”. Abusers open social media accounts in the guise of well-known survivors of child sexual abuse. To all of us in this room, that would look perfectly innocuous, but if you are an abuser, the purpose of those accounts is very clear. In the first quarter of last year, those types of accounts received 6 million interactions.
Another example is Facebook groups. We have seen evidence of Facebook refusing to take down groups that have a common interest in, for example, children celebrating their 8th, 9th and 10th birthdays. That is barely disguised at all; we can all see what the purpose is. Indeed, Facebook’s algorithms can see the purpose there, because research has shown that, within a couple of hours of use of the service, the algorithms identify the common characteristic of interest, which is child sexual abuse, and then start recommending accounts in multiple other languages.
We are talking about a significant way in which abusers are able to organise abuse and migrate it to encrypted chat platforms, to the dark web, and to offender fora, where it is, by definition, much harder to catch that activity, which happens after harm has occurred—after child abuse images have been circulated. We really want breadcrumbing to be brought unambiguously into the scope of the Bill. That would close off tens of millions of interactions with accounts that go on to enable abusers to discover and disseminate material and to form offender networks.
We have had some good, constructive relationships with the Home Office in recent weeks. I know that the Home Office is keen to explore how this area can be addressed, and it is vital that it is addressed. If we are going to see the Bill deliver the objective of securing a really effective upstream response, which I think is the clear legislative ambition, this is an area where we really need to see the Bill be amended.
Kirsty Blackman
Q
Andy Burrows: Those provisions should apply broadly, but it is a problem that we see particularly on those large sites because of the scale and the potential for algorithmic amplification.
Barbara Keeley
Q
Dame Rachel de Souza: Baroness Kidron has done some fantastic work on this, and I really support her work. I want to tell you why. I am a former headteacher—I worked for 30 years in schools as a teacher and headteacher. Only in the last five or six years did I start seeing suicides of children and teenagers; I did not see them before. In the year just before I came to be Children’s Commissioner, there was a case of a year 11 girl from a vulnerable family who had a relationship with a boy, and it went all over the social media sites. She looked up self-harm material, went out to the woods and killed herself. She left a note that basically said, “So there. Look what you’ve done.”
It was just horrendous, having to pick up the family and the community of children around her, and seeing the long-term effects of it on her siblings. We did not see things like that before. I am fully supportive of Baroness Kidron and 5Rights campaigning on this issue. It is shocking to read about the enormous waiting and wrangling that parents must go through just to get their children’s information. It is absolutely shocking. I think that is enough from me.
Andy Burrows: I absolutely agree. One of the things we see at the NSPCC is the impact on parents and families in these situations. I think of Ian Russell, whose daughter Molly took her own life, and the extraordinarily protracted process it has taken to get companies to hand over her information. I think of the anguish and heartbreak that comes with this process. The Bill is a fantastic mechanism to be able to redress the balance in terms of children and families, and we would strongly support the amendments around giving parents access to that data, to ensure that this is not the protracted process that it currently all too often is.
Barbara Keeley
Just quickly, do coroners have sufficient powers? Should they have more powers to access digital data after the death of a child?
Andy Burrows: We can see what a protracted process it has been. There have been improvements to the process. It is currently a very lengthy process because of the mutual legal assistance treaty arrangements—MLAT, as they are known—by which injunctions have to be sought to get data from US companies. It has taken determination from some coroners to pursue cases, very often going up against challenges. It is an area where we think the arrangements could certainly be streamlined and simplified. The balance here should shift toward giving parents and families access to the data, so that the process can be gone through quickly and everything can be done to ease the heartbreak for families having to go through those incredibly traumatic situations.
Alex Davies-Jones
Q
Dame Rachel de Souza: There is no silver bullet. This is now a huge societal issue and I think that some of the things that I would want to say would be about ensuring that we have in our educational arsenal, if you like, a curriculum that has a really strong digital media literacy element. To that end, the Secretary of State for Education has just asked me to review how online harms and digital literacy are taught in schools—reviewing not the curriculum, but how good the teaching is and what children think about how the subject has been taught, and obviously what parents think, too.
I would absolutely like to see the tech companies putting some significant funding into supporting education of this kind; it is exactly the kind of thing that they should be working together to provide. So we need to look at this issue from many aspects, not least education.
Obviously, in a dream world I would like really good and strong digital media literacy in the Bill, but actually it is all our responsibility. I know from my conversations with Nadhim Zahawi that he is very keen that this subject is taught through the national curriculum, and very strongly.
Kirsty Blackman
Q
Dame Rachel de Souza: It is a massive concern to parents. Parents talk to me all the time about their worries: “Do we know enough?” They have that anxiety, especially as their children turn nine or 10; they are thinking, “I don’t even know what this world out there is.” I think that our conversations with 16 to 21-year-olds were really reassuring, and we have produced a pamphlet for parents. It has had a massive number of downloads, because parents absolutely want to be educated in this subject.
What did young people tell us? They told us, “Use the age controls; talk to us about how much time we are spending online; keep communication open; and talk to us.” Talk to children when they’re young, particularly boys, who are likely to be shown pornography for the first time, even if there are parental controls, around the age of nine or 10. So have age-appropriate conversations. There was some very good advice about online experiences, such as, “Don’t worry; you’re not an expert but you can talk to us.” I mean, I did not grow up with the internet, but I managed parenting relatively well—my son is 27 now. I think this is a constant concern for parents.
I do think that the tech companies could be doing so much more to assist parents in digital media literacy, and in supporting them in how to keep their child safe. We are doing it as the Office of the Children’s Commissioner. I know that we are all trying to do it, but we want to see everyone step up on this, particularly the tech companies, to support parents on this issue.
Chris Philp
Q
Could you outline for the Committee the areas where you think the Bill, as currently drafted, contains the most important provisions to protect children?
Dame Rachel de Souza: I was really glad to see, in the rewrite of the Online Safety Bill, a specific reference to the role of age assurance to prevent children from accessing harmful content. That has come across strongly from children and young people, so I was very pleased to see that. It is not a silver bullet, but for too long children have been using entirely inappropriate services. The No. 1 recommendation from the 16 to 21-year-olds, when asked what they wish their parents had known and what we should do, was age assurance, if you are trying to protect a younger sibling or are looking at children, so I was pleased to see that. Companies cannot hope to protect children if they do not know who the children are on their platforms, so I was extremely pleased to see that.
Chris Philp
Q
Dame Rachel de Souza: Absolutely. I have called together the tech companies. I have met the porn companies, and they reassured me that as long as they were all brought into the scope of this Bill, they would be quite happy as this is obviously a good thing. I brought the tech companies together to challenge them on their use of age assurance. With their artificial intelligence and technology, they know the age of children online, so they need to get those children offline. This Bill is a really good step in that direction; it will hold them to account and ensure they get children offline. That was a critically important one for me.
I was also pleased to see the holding to account of companies, which is very important. On full coverage of pornography, I was pleased to see the offence of cyber-flashing in the Bill. Again, it is particularly about age assurance.
What I would say is that nudge is not working, is it? We need this in the Bill now, and we need to get it there. In my bit of work with those 2,000 young people, we asked what they had seen in the last month, and 40% of them have not had bad images taken down. Those aspects of the Bill are key.
Andy Burrows: This is a landmark Bill, so we thank you and the Government for introducing it. We should not lose sight of the fact that, although this Bill is doing many things, first and foremost it will become a crucial part of the child protection system for decades to come, so it is a hugely important and welcome intervention in that respect.
What is so important about this Bill is that it adopts a systemic approach. It places clear duties on platforms to go through the process of identifying the reasonably foreseeable harms and requiring that reasonable steps be taken to mitigate them. That is hugely important from the point of view of ensuring that this legislation is future-proofed. I know that many companies have argued for a prescriptive checklist, and then it is job done—a simple compliance job—but a systemic approach is hugely important because it is the basis upon which companies have very clear obligations. Our engagement is very much about saying, “How can we make sure this Bill is the best it can possibly be?” But that is on the bedrock of that systemic approach, which is fundamental if we are to see a culture shift in these companies and an emphasis on safety by design—designing out problems that do not have to happen.
I have engaged with companies where child safety considerations are just not there. One company told me that grooming data is a bad headline today and tomorrow’s chip shop wrapper. A systemic approach is the key to ensuring that we start to address that balance.
Chris Philp
Q
I would like to turn to a one or two points that came up in questioning, and then I would like to probe a couple of points that did not. Dame Rachel mentioned advocacy and ensuring that the voice of particular groups—in this context, particularly that of children—is heard. In that context, I would like to have a look at clause 140, which relates to super-complaints. Subsection (4) says that the Secretary of State can, by regulations, nominate which organisations are able to bring super-complaints. These are complaints whereby you go to Ofcom and say that there is a particular company that is failing in its systemic duties.
Subsection (4) makes it clear that the entities nominated to be an authorised super-complainant would include
“a body representing the interests of users of regulated services”,
which would obviously include children. If an organisation such as the Office of the Children’s Commissioner or the NSPCC—I am obviously not prejudicing the future process—were designated as a super-complainant that was able to bring super-complaints to Ofcom, would that address your point about the need for proper advocacy for children?
Dame Rachel de Souza: Absolutely. I stumbled over that a bit when Maria asked me the question, but we absolutely need people who work with children, who know children and are trusted by children, and who can do that nationally in order to be the super-complainants. That is exactly how I would envisage it working.
Andy Burrows: The super-complaint mechanism is part of the well-established arrangements that we see in other sectors, so we are very pleased to see that that is included in the Bill. I think there is scope to go further and look at how the Bill could mirror the arrangements that we see in other sectors—I mentioned the energy, postal and water sectors earlier as examples—so that the statutory user advocacy arrangements for inherently vulnerable children, including children at risk of sexual abuse, mirror the arrangements that we see in those other sectors. That is hugely important as a point of principle, but it is really helpful and appropriate for ensuring that the legislation can unlock the positive regulatory outcomes that we all want to see, so I think it contributes towards really effective regulatory design.
Chris Philp
Q
Dame Rachel de Souza: Yes, and I was so pleased to see that. The regulator needs to have teeth for it to have any effect—I think that is what we are saying. I want named senior managers to be held accountable for breaches of their safety duties to children, and I think that senior leaders should be liable to criminal sanctions when they do not uphold their duty of care to children.
Chris Philp
Q
I will put my last two questions together. Are you concerned about the possibility that encryption in messaging services might impede the automatic scanning for child exploitation and abuse images that takes place, and would you agree that we cannot see encryption happen at the expense of child safety? Secondly, in the context of the Molly Russell reference earlier, are you concerned about the way that algorithms can promote and essentially force-feed children very harmful content? Those are two enormous questions, and you have only two minutes to answer them, so I apologise.
Dame Rachel de Souza: I am going to say yes and yes.
Andy Burrows: I will say yes and yes as well. The point about end-to-end encryption is hugely important. Let us be clear: we are not against end-to-end encryption. Where we have concerns is about the risk profile that end-to-end encryption introduces, and that risk profile, when we are talking about it being introduced into social networking services and bundled with other sector functionality, is very high and needs to be mitigated.
About 70% of child abuse reports that could be lost with Meta going ahead. That is 28 million reports in the past six months, so it is very important that the Bill can require companies to demonstrate that if they are running services, they can acquit themselves in terms of the risk assessment processes. We really welcome the simplified child sexual exploitation warning notices in the Bill that will give Ofcom the power to intervene when companies have not demonstrated that they have been able to introduce end-to-end encryption in a safe and effective way.
One area in which we would like to see the Bill—
The Chair
Order. I am afraid that brings us to the end of the time allotted for the Committee to ask questions of this panel. On behalf of the Committee, I thank our witnesses for their evidence, and I am really sorry that we could not get Lynn Perry online. Could we move on to the last panel? Thank you very much.
Examination of Witnesses
Ben Bradley and Katy Minshall gave evidence.
The Chair
We will now hear from Ben Bradley, government relations and public policy manager at TikTok, and Katy Minshall, head of UK public policy at Twitter. We have until 11.25 for this panel of witnesses. Could the witnesses please introduce themselves for the record?
Ben Bradley: I am Ben Bradley. I am a public policy manager at TikTok, leading on the Bill from TikTok.
Katy Minshall: I am Katy Minshall. I am head of UK public policy for Twitter.
Alex Davies-Jones
Q
Katy Minshall: Thank you for inviting me here to talk about the Online Safety Bill. On whether the Bill is workable in its current form, on the one hand, we have long been supportive of an approach that looks at overall systems and processes, which I think would capture some of the emerging technologies that you are talking about. However, we certainly have questions about how are aspects of the Bill would work in practice. To give you an example, one of the late additions to the Bill was about user verification requirements, which as I understand it means that all category 1 platforms will need to offer users the opportunity to verify themselves and, in turn, those verified users have the ability to turn off interaction from unverified users. Now, while we share the Government’s policy objective of giving users more control, we certainly have some workability questions.
Just to give you one example, let’s say this existed today, and Boris Johnson turned on the feature. In practice, that would mean one of two things. Either the feature is only applicable to users in the UK, meaning that people around the world—in France, Australia, Germany or wherever it may be—are unable to interact with Boris Johnson, and only people who are verified in the UK can reply to him, tweet at him and so on, or it means the opposite and anyone anywhere can interact with Boris Johnson except those people who have chosen not to verify their identity, perhaps even in his own constituency, who are therefore are at a disadvantage in being able to engage with the Prime Minister. That is just one illustration of the sorts of workability questions we have about the Bill at present.
Alex Davies-Jones
Q
Katy Minshall: I am sorry, do you mean—
Alex Davies-Jones
Q
Katy Minshall: At present, what would be expected of companies in that scenario is not entirely clear in the Bill. There are certainly examples of content we have removed over the years for abuse and hateful conduct where the account owner that we suspended would have grounds to say, “Actually, this is content of democratic importance.” At the very least, it is worth pointing out that, in practice, it is likely to slow down our systems because we would have to build in extra steps to understand if a tweet or an account could be considered content of democratic importance, and we would therefore treat it differently.
Alex Davies-Jones
Q
Katy Minshall: That is a really important question. At present, the Bill envisages that we would treat journalistic content differently from other types of content. I think the definition in the Bill—correct me if I get this wrong—is content for the purposes of journalism that is UK linked. That could cover huge swathes of the conversation on Twitter—links to blog posts, citizen journalists posting, front pages of news articles. The Bill envisages our having a system to separate that content from other content, and then treating that content differently. I struggle to understand how that would work in practice, especially when you layer on top the fact that so much of our enforcement is assisted by technology and algorithms. Most of the abusive content we take down is detected using algorithms; we suspend millions of spam accounts every day using automated systems. When you propose to layer something so ambiguous and complicated on top of that, it is worth considering how that might impact on the speed of enforcement across all of our platform.
Alex Davies-Jones
Q
Katy Minshall: At present, we label a number of accounts as Government actors or state-affiliated media and we take action on those accounts. We take down their tweets and in some cases we do not amplify their content because we have seen in current situations that some Governments are sharing harmful content. Again, I question the ambiguity in the Bill and how it would interact with our existing systems that are designed to ensure safety on Twitter.
Alex Davies-Jones
Q
Katy Minshall: Until we see the full extent of the definitions and requirements, it is difficult to say exactly what approach we would take under the Bill. Regarding adult content, Twitter is not a service targeting a youth audience, and as you illustrate, we endeavour to give people the ability to express themselves as they see fit. That has to be balanced with the objective of preventing young people from inadvertently stumbling on such content.
Alex Davies-Jones
Q
Katy Minshall: We find that, in practice, the overwhelming majority of our user base are over the age of 18; both internal and external data show that. Of course young people can access Twitter. I think we have to be very careful that the Bill does not inadvertently lock children out of services they are entitled to use. I am sure we can all think of examples of people under the age of 18 who have used Twitter to campaign, for activism and to organise; there are examples of under-18s using Twitter to that effect. But as I say, predominantly we are not a service targeting a youth audience.
Dean Russell
Q
Ben Bradley: Speaking for TikTok, we view ourselves as a second-generation platform. We launched in 2018, and at that time when you launched a product you had to make sure that safety was at the heart of it. I think the Secretary of State herself has said that the Bill process actually predates the launch of TikTok in the UK.
We view ourselves as an entertainment platform and to express yourself, enjoy yourself and be entertained you have to feel safe, so I do not think we would be seen as kicking and screaming under this regime. It is something that we have supported for a long time and we are regulated by Ofcom under the video-sharing platform, or VSP, regime. What the Bill will achieve is to raise the floor of industry standards, a bit like GDPR did for data, so that for all the companies in the future—to Alex’s point, this is about the next five and 10 years—there will be a baseline of standards that everyone must comply with and expectations that you will be regulated. Also, it takes a lot of these difficult decisions about the balance between safety and expression, privacy and security out of the hands of tech companies and into the hands of a regulator that, of course, will have democratic oversight.
Katy Minshall: I do not have very much more to add. We already engage positively with Ofcom. I remember appearing before a Select Committee back in 2018 or 2019 and at that point saying that we were absolutely supportive of Ofcom taking in this role and regulation potentially being a game changer. We are supportive of the systems and processes approach and look forward to engaging constructively in the regulation.
Dean Russell
Q
Katy Minshall: I am glad you asked that question. The problem with the Bill is it depends on so many things that do not exist yet. We are looking at the Bill and thinking how we can prepare and start thinking about what is necessary, but in practice, content that is harmful to adults and harmful to children has not been set out yet. So much of the Bill depends on secondary legislation and codes of practice, and as I described earlier in the question from Alex Davies-Jones, there are such real workability questions around exemptions and ID verification that I worry there would be the risk of substantial delays at the other end, which I do not think anyone wants to see.
Ben Bradley: It is the same from our perspective. We have our community guidelines and we are committed to enforcing those at the moment. A lot of the detail of the Bill will be produced in Ofcom’s codes of practice but I think it is important we think about operationalising the process, what it looks like in practice and whether it is workable.
Something like Katy mentioned in terms of the user empowerment duties, how prescriptive those would be and how those would work, not just from the platforms of today but for the future, is really important. For TikTok, to use a similar example on the user empowerment duties, the intent is to discover content from all over the world. When you open the app, you are recommended content from all sorts of users and there is no expectation that those would be verified. If you have opted into this proposed user empowerment duty, there is a concern that it could exacerbate the risk of filter bubbles, because you would only be receiving content from users within the UK who have verified themselves, and we work very hard to make sure there is a diverse range of recommendations in that. I think it is a fairly easy fix. Much like elsewhere in the Bill, where Ofcom has flexibility about whether to require specific recommendations, they could have that flexibility in this case as well, considering whether this type of power works for these types of platforms.
To use the example of the metaverse, how would it work once the metaverse is up and running? The whole purpose of the metaverse is a shared environment in which users interact, and because the Bill is so prescriptive at the minute about how this user empowerment duty needs to be achieved, it is not clear, if you were verified and I were unverified and you had opted not to see my content but I moved something in the shared environment, like this glass, whether that would move for everyone. It is a small point, but it just goes to the prescriptiveness of how it is currently drafted and the importance of giving Ofcom the flexibility that it has elsewhere in the Bill, but in this section as well.
Kirsty Blackman
Q
Katy Minshall: At present, we follow the industry standard of age self-declaration. How you manage and verify identity—whether using a real-name system or emerging technologies like blockchain or documentation—is at the heart of a range of industries, not just ours.
Technology will change and new products that we cannot even envisage today will come on to the market. In terms of what we would do in relation to the Bill, as I said, until we see the full extent of the definitions and requirements, we cannot really say what exact approach we would take.
Kirsty Blackman
Q
Katy Minshall: My understanding of the Bill is that if there is a chance a young person could access your service, you would be expected to undertake the child safety duties, so my understanding is that that would be the case.
Kirsty Blackman
Q
Ben Bradley: We are a strictly 13-plus platform. There are basically two approaches to preventing under-age access to our platform. The first is preventing them from signing up. We are 12+ rated in the app stores, so if you have parental controls on those app stores, you cannot download the app. We also have a neutral age gate, which I think is similar to Twitter’s. We do not ask people to confirm whether they are over 13—we do not ask them to tick a box; instead we ask them to enter their date of birth. If they enter a date of birth that is under 13, they are blocked from re-entering date of birth, so they cannot just keep trying. We do not say that it is because they are under age; we just say, “TikTok isn’t right for you right now.” That is the first step.
Secondly, we proactively surface and remove under-age users. Whenever a piece of content is reported on TikTok, for whatever reason, the moderator will look at two things: the reason why it was reported and also whether the user is under 13. They can look at a range of signals to do that. Are they wearing a school uniform? Is there a birthday cake in their biography? Do they say that they are in a certain year of school? They can use those signals.
We actually publish every quarter how many suspected under-13s we remove from our platform. I think we are currently the only company to publish that on a quarterly basis, but we think it is important to be transparent about how we are approaching this, to give a sense of the efficacy of our interventions.
On what specifically might change, that is not clear; obviously, we have to wait for further guidance from Ofcom. However, we did carry out research last year with parents and young people in five countries across Europe, including the UK, where we tested different ideas of age assurance and verification, trying to understand what they would like to see. There was not really a single answer that everyone could get behind, but there were concerns raised around data protection and privacy if you were handing over this type of information to the 50 or 60 apps that might be on your phone.
One idea, which people generally thought was a good one, was that when you first get a device and first sign into the app store, you would verify your age there, and then that app store on that device could then pass an additional token to all the apps on your phone suggesting that you are of a certain age, so that we could apply an age-appropriate experience. Obviously that would not stop us doing everything that we currently do, but I think that would be a strong signal. If that were to move forward, we would be happy to explore that.
Kirsty Blackman
Q
Ben Bradley: TikTok does not take a filter bubble approach. When you first open the app, you express areas of content that you are interested in and then we recommend content. Because it is short-form, the key to TikTok’s success is sending you diverse content, which allows you to discover things that you might never have previously expressed interest in. I use the example of Nathan Evans, a postman who went on to have a No. 1 song with “Wellerman”, or even Eurovision, for example. These are things that you would not necessarily express interest in, but when they are recommended to you, you are engaged. Because it is short-form content, we cannot show you the same type of material over and over again—you would not be interested in seeing 10 30-second videos on football, for example. We intentionally try to diversify the feed to express those different types of interests.
Katy Minshall: Our algorithms down-rank harmful content. If you want to see an example live on Twitter, if you send a tweet and get loads of replies, there is a chunk that are automatically hidden at the bottom in a “view more replies” section. Our algorithm works in other ways as well to down-rank content that could be violating our rules. We endeavour to amplify credible content as well. In the explore tab, which is the magnifying glass, we will typically be directing you to credible sources of information—news websites and so on.
In terms of how the Bill would affect that, my main hope is that codes of practice go beyond a leave up or take down binary and beyond content moderation and think about the role of algorithms. At present on Twitter, you can turn the algorithm off in the top right-hand corner of the app, on the sparkle icon. In the long term, I think what we will be aiming for is a choice in the range of algorithms that you could use on services like Twitter. I would hope that the code of practice enables that and does not preclude is as a solution to some of the legal but harmful content we may have in mind.
Kirsty Blackman
Q
Katy Minshall: That is absolutely the case and it has been documented by numerous organisations and research. Social media mirrors society and society has the problems you have just described. In terms of how we ensure intersectionality in our policies and approaches, we are guided by our trust and safety council, which is a network of dozens of organisations around the world, 10 of which are here in the UK, and which represents different communities and different online harms issues. Alongside our research and engagement, the council ensures that when it comes to specific policies, we are constantly considering a range of viewpoints as we develop our safety solutions.
Kim Leadbeater
Q
Katy Minshall: At the very least, there must be tighter definitions. I am especially concerned when it comes to the news publisher exemption. The Secretary of State has indicated an amendment that would mean that services like Twitter would have to leave such content up while an appeals process is ongoing. There is no timeline given. The definition in the Bill of a news publisher is, again, fairly vague. If Ben and I were to set up a news website, nominally have some standards and an email address where people could send complaints, that would enable it to be considered a news publisher under the Bill. If we think about some of the accounts that have been suspended from social media over the years, you can absolutely see them creating a news website and saying, “I have a case to come back on,” to Twitter or TikTok or wherever it maybe.
Ben Bradley: We share those concerns. There are already duties to protect freedom of expression in clause 19. Those are welcome. It is the breadth of the definition of journalistic and democratic content that is a concern for us, particularly when it comes to things like the expediated and dedicated appeals mechanism, which those people would be able to claim if their content was removed. We have already seen people like Tommy Robinson on the far right present themselves as journalists or citizen journalists. Giving them access to a dedicated and expediated appeals mechanism is an area of concern.
There are different ways you could address that, such as greater clarity in those definitions and removing subjective elements. At the minute, it is whether or not a user considers their content to be journalistic; that it is not an objective criterion but about their belief about their content.
Also, if you look at something like the dedicated and expediated appeals mechanism, could you hold that in reserve so that if a platform were found to be failing in its duties to journalistic content or in its freedom of expression duties, Ofcom could say, like it can in other areas of the Bill, “Okay, we believe that you need to create this dedicated mechanism, because you have failed to protect those duties.”? That would, I think, minimise the risk for exploitation of that mechanism.
Mrs Miller
Q
Katy Minshall: We would certainly look to engage with Ofcom positively on the requirements it sets out. I am sorry to sound repetitive, but the challenge is that the Bill depends on so many things that do not exist yet and the definitions around what we mean by content harmful to adults or to children. In practice, that makes it challenging to say to you exactly today what approaches we would take. To be clear, we would of course look to continue working with the Government and now Ofcom with the shared objective of making the online space safer for everyone.
Mrs Miller
Q
Katy Minshall: The lesson of the past three or four years is that we cannot wait for the Bill. We at Twitter are continuing to make changes to our product and our policies to improve safety for everyone, including children.
Mrs Miller
Q
Katy Minshall: The Bill is a really important piece of regulation, which is why I was so pleased to come today and share our perspectives. We are continuing to engage positively with Ofcom. What I am trying to say is that until we see the full extent of the requirements and definitions, it is hard to set out exactly what steps we would take with regards to the Bill.
Ben Bradley: To add to that point, it is hard to be specific about some of the specific changes we would make because a lot of the detail of the Bill defers to Ofcom guidance and the codes of practice. Obviously we all have the duties around child safety and adult safety, but the Ofcom guidance will suggest specific measures that we can take to do that, some of which we may take already, and some of which may go further than what we already do. Once we see the details of the codes, we will be able to give a clearer answer.
Broadly from a TikTok perspective, through the design of the product and the way we approach safety, we are in a good place for when the new regime comes in, because we are regulated by Ofcom in the VSP regime, but we would have to wait for the full amount of detail. But outside some of the companies that you will hear from today, this will touch 20,000 companies and will raise the floor for all the companies that will be regulated under the regime.
Mrs Miller
Q
Ben Bradley: Yes, the codes of practice will recommend specific steps that we should take to achieve our duties. Until we see the detail of those codes it is hard to be specific about some of the changes that we would make.
Barbara Keeley
Q
Katy Minshall: At present, we have a range of risk assessment processes. We have a risk committee of the board. We do risk assessments when we make a change about—
Barbara Keeley
Q
Katy Minshall: At present, we do not have a specific individual designated to do the children’s risk assessment. The key question is how much does Ofcom’s guidance on risk assessments—once we see it—intersect with our current processes versus changes we would need to make to our risk assessment processes?
Barbara Keeley
Q
Katy Minshall: I would have to go away and review the Bill. I do not know whether a specific level is set out in the Bill, but we would want to engage with the regulation and requirements set for companies such as Twitter. However it would be expected that is what we would—
Barbara Keeley
Q
Katy Minshall: Already all the biggest decisions that we make as a company are signed off at the most senior level. We report to our chief executive, Parag Agrawal, and then to the board. As I say, there is a risk committee of the board, so I expect that we would continue to make those decisions at the highest level.
Ben Bradley: It is broadly the same from a TikTok perspective. Safety is a priority for every member of the team, regardless of whether they are in a specific trust and safety function. In terms of risk assessments, we will see from the detail of the Bill at what level they need to be signed off, but our CEO has been clear in interviews that trust and safety is a priority for him and everyone at TikTok, so it would be something to which we are all committed.
Barbara Keeley
Do you think you would be likely to sign it off at the board level—
Chris Philp
Q
Katy Minshall: As I say, we share your policy objective of giving users more choice. For example, at present we are testing a tool where Twitter automatically blocks abusive accounts on your behalf. We make the distinction based on an account’s behaviour and not on whether it has verified itself in some way.
Chris Philp
Q
I do not think that the concept would necessarily operate as you suggested at the beginning. You suggested that people might end up not seeing content posted by the Prime Minister or another public figure. The concept is that, assuming a public figure would choose to verify themselves, content that they posted would be visible to everybody because they had self-verified. The content in the other direction may or may not be, depending on whether the Prime Minister or the Leader of the Opposition chose to see all content or just verified content, but their content—if they verified themselves—would be universally visible, regardless of whatever choice anyone else exercised.
Katy Minshall: Yes, sorry if I was unclear. I totally accept that point, but it would mean that some people would be able to reply to Boris Johnson and others would not. I know we are short on time, but it is worth pointing out that in a YouGov poll in April, nearly 80% of people said that they would not choose to provide ID documents to access certain websites. The requirements that you describe are based on the assumption that lots of people will choose to do it, when in reality that might not be the case.
A public figure might think, “Actually, I really appreciate that I get retweets, likes and people replying to my tweets,” but if only a small number of users have taken the opportunity to verify themselves, that is potentially a disincentive even to use this system in the first place—and all the while we were creating a system, we could have been investing in or trying to develop new solutions, such as safety mode, which I described and which tries to prevent abusive users from interacting with you.
Chris Philp
Q
Ben, you talked about the age verification measures that TikTok currently takes. For people who do not come via an age-protected app store, it is basically self-declared. All somebody has to do is type in a date of birth. My nine-year-old children could just type in a date of birth that was four years earlier than their real date of birth, and off they would go on TikTok. Do you accept that that is wholly inadequate as a mechanism for policing the age limit of 13?
Ben Bradley: That is not the end of our age assurance system; it is just the very start. Those are the first two things that we have to prevent sign-up, but we are also proactive in surfacing and removing under-age accounts. As I said, we publish every quarter how many suspected under-13s get removed.
Chris Philp
Q
Ben Bradley: It is based on a range of signals that they have available to them. As I said, we publish a number every quarter. In the last quarter, we removed 14 million users across the globe who were suspected to be under the age of 13. That is evidence of how seriously we take the issue. We publish that information because we think it is important to be transparent about our efforts in this space, so that we can be judged accordingly.
Chris Philp
Q
Earlier, we debated content of democratic importance and the protections that that and free speech have in the Bill. Do you agree that a requirement to have some level of consistency in the way that that is treated is important, particularly given that there are some glaring inconsistencies in the way in which social media firms treat content at the moment? For example, Donald Trump has been banned, while flagrant disinformation by the Russian regime, lying about what they are doing in Ukraine, is allowed to propagate—including the tweets that I drew to your attention a few weeks ago, Katy.
Katy Minshall: I agree that freedom of expression should be top of mind as companies develop safety and policy solutions. Public interest should always be considered when developing policies. From the perspective of the Bill, I would focus on freedom of expression for everyone, and not limit it to content that could be related to political discussions or journalistic content. As Ben said, there are already wider freedom of expression duties in the Bill.
Chris Philp
Q
Katy Minshall: Sorry, but I do not know the Bill in those terms, so you would have to tell me the definition.
The Chair
Order. I am afraid that that brings us to the end of the time allotted for the Committee to ask questions in this morning’s sitting. On behalf of the Committee, I thank our witnesses for their evidence. We will meet again at 2 pm in this room to hear further oral evidence.
Online Safety Bill (Second sitting)
Tuesday 24th May 2022
(3 years, 8 months ago)
Public Bill CommitteesOnline Safety Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 24 May 2022 - (24 May 2022)
The Chair
Q
Richard Earley: Good afternoon. My name is Richard Earley, and I work in the public policy team at Meta, leading on content issues including the Online Safety Bill.
Becky Foreman: I am Becky Foreman; I am the corporate affairs director for Microsoft UK.
Katie O’Donovan: I am Katie O’Donovan; I am director of Government affairs and public policy for Google in the UK.
The Chair
May I just ask you, for the benefit of Hansard, to try to speak up a little? The sound system is not all that it might be in this room, and the acoustics certainly are not.
Alex Davies-Jones (Pontypridd) (Lab)
Q
The Chair
Mr Earley, I will go left to right to start with, if that is all right with you, so you have drawn the short straw.
Richard Earley: No worries, and thank you very much for giving us the opportunity to speak to you all today; I know that we do not have very much time. In short, we think this legislation is necessary because we believe that it is really important that democratically elected Members of Parliament and Government can provide input into the sorts of decisions that companies such as ours are making, every day, about how people use the internet. We do not believe that it is right for companies such as ours to be taking so many important decisions every single day.
Now, unfortunately, it is the case that social media reflects the society that we live in, so all of the problems that we see in our society also have a reflection on our services. Our priority, speaking for Meta and the services we provide—Facebook, Instagram and WhatsApp—is to do everything we can to make sure our users have as positive an experience as possible on our platform. That is why we have invested more than $13 billion over the past five years in safety and security, and have more than 40,000 people working at our company on safety and security every day.
That said, I fully recognise that we have a lot more areas to work on, and we are not waiting for this Bill to come into effect to do that. We recently launched a whole range of updated tools and technologies on Instagram, for example, to protect young people, including preventing anyone under the age of 18 from being messaged by a person they are not directly connected to. We are also using new technology to identify potentially suspicious accounts to prevent young people from appearing in any search results that those people carry out. We are trying to take steps to address these problems, but I accept there is a lot more to do.
Alex Davies-Jones
Q
You say that work is already being done to remove this content, but on Instagram, for example, which is a platform predominantly used by women, the Centre for Countering Digital Hate has exposed what they term an “epidemic of misogynistic abuse”, with 90% of misogynistic abuse being sent via direct messaging. It is being ignored by the platform even when it is being reported to the moderators. Why is that happening?
Richard Earley: First, your point about algorithms is really important, but I do not agree that they are being used to promote harmful content. In fact, in our company, we use algorithms to do the reverse of that. We try to identify content that might break our policies—the ones we write with our global network of safety experts—and then remove those posts, or if we find images or posts that we think might be close to breaking those rules, we show them lower in people’s feeds so that they have a lower likelihood of being seen. That is why, over the past two years, we have reduced the prevalence of harmful posts such as hate speech on Facebook so that now only 0.03% of views of posts on Facebook contain that kind of hate speech—we have almost halved the number. That is one type of action that we take in the public parts of social media.
When it comes to direct messages, including on Instagram, there are a range of steps that we take, including giving users additional tools to turn off any words they do not want to see in direct messages from anyone. We have recently rolled out a new feature called “restrict” which enables you to turn off any messages or comments from people who have just recently started to follow you, for example, and have just created their accounts. Those are some of the tools that we are trying to use to address that.
Alex Davies-Jones
Q
Richard Earley: No, the responsibility is absolutely shared by those of us who offer platforms, by those who are engaged in abuse in society, and by civil society and users more widely. We want to ensure we are doing everything we can to use the latest technology to stop abuse happening where we can and give people who use our services the power to control their experience and prevent themselves from encountering it.
The Chair
We must allow the other witnesses to participate.
Becky Foreman: Thank you for inviting me to give evidence to you today. Online safety is extremely important to Microsoft and sits right at the heart of everything we do. We have a “safety by design” policy, and responsibility for safety within our organisation sits right across the board, from engineers to operations and policy people. However, it is a complicated, difficult issue. We welcome and support the regulation that is being brought forward.
We have made a lot of investments in this area. For example, we introduced PhotoDNA more than 10 years ago, which is a tool that is used right across the sector and by non-governmental organisations to scan for child sexual abuse material and remove it from their platforms. More recently, we have introduced a grooming tool that automates the process of trying to establish whether there is a conversation for grooming taking place between an adult and a child. That can then be flagged for human review. We have made that available at no charge to the industry, and it has been licensed by a US NGO called Thorn. We take this really seriously, but it is a complicated issue and we really welcome the regulation and the opportunity to work with the Government and Ofcom on this.
Katie O’Donovan: Thank you so much for having me here today and asking us to give evidence. Thank you for your question. I have worked at Google and YouTube for about seven years and I am really proud of our progress on safety in those years. We think about it in three different ways. First, what products can we design and build to keep our users safer? Similar to Microsoft, we have developed technology that identifies new child sex abuse material and we have made that available across the industry. We have developed new policies and new ways of detecting content on YouTube, which means we have really strict community guidelines, we identify that content and we take it down. Those policies that underlie our products are really important. Finally, we work across education, both in secondary and primary schools, to help inform and educate children through our “Be Internet Legends” programme, which has reached about 4 million people.
There is definitely much more that we can do and I think the context of a regulatory environment is really important. We also welcome the Bill and I think it is really going to be meaningful when Ofcom audits how we are meeting the requirements in the legislation—not just how platforms like ours are meeting the requirements in the Bill, but a wide spectrum of platforms that young people and adults use. That could have a really positive additive effect to the impact.
It is worth pausing and reflecting on legislation that has passed recently, as well. The age-appropriate design code or the children’s code that the Information Commissioner’s Office now manages has also helped us determine new ways to keep our users safe. For example, where we have long had a product called SafeSearch, which you can use on search and parents can keep a lock on, we now also put that on by default where we use signals to identify people who we think are under 18.
We think that is getting the right balance between providing a safer environment but also enabling people to access information. We have not waited for this regulation. This regulation can help us do more, and it can also level the playing field and really make sure that everyone in the industry steps up and meets the best practice that can exist.
Alex Davies-Jones
Q
Richard Earley: I do not accept that figure. I believe that if you look at our quarterly transparency report, which we just released last week, you can see that we find more than 90% of all the content that we remove for breaking our policies ourselves. Whenever somebody reports something on any of our platforms, they get a response from us. I think it is really important, as we are focusing on the Bill, to understand or make the point that, for private messaging, yes, there are different harms and different risks of harm that can apply, which is why the steps that we take differ from the steps that we take in public social media.
One of the things that we have noticed in the final draft of the Bill is that the original distinction between public social media and private messaging, which was contained in the online harms White Paper and in earlier drafts of the Bill, has been lost here. Acknowledging that distinction, and helping companies recognise that there is different risk and then different steps that can be taken in private messaging to what is taken on public social media, would be a really important thing for the Committee to consider.
Alex Davies-Jones
Q
Richard Earley: We have around 40,000 people in total working on safety and security globally and, of those, around half directly review posts and content.
Alex Davies-Jones
Q
Richard Earley: I do not have that figure myself but I know it is predominantly the case that, in terms of the safety functions that we perform, it is not just looking at the pieces of content; it is also designing the technology that finds and surfaces content itself. As I said, more than 90% of the time—more than 95% in most cases—it is our technology that finds and removes content before anyone has to look at it or report it.
Alex Davies-Jones
Q
Richard Earley: That group of 40,000 people that I mentioned, they operate 24 hours, 7 days a week. They cover more than 70 languages between them, which includes the vast majority of the world’s major spoken languages. I should say that people working at Meta, working on these classifiers and reviewing content, include people with native proficiency in these languages and people who can build the technology to find and remove things too. It is not just what happens within Meta that makes a difference here, but the work we do with our external partners. We have over 850 safety partners that we work with globally, who help us understand how different terms can be used and how different issues can affect the spread of harm on our platforms. All of that goes into informing both the policies we use to protect people on our platform and the technology we build to ensure those policies are followed.
Alex Davies-Jones
Q
Richard Earley: I am sorry, could you repeat the question?
Alex Davies-Jones
The vast majority of people are third party. They are not employed directly by Meta to moderate content, so how many of the UK organisations you use have been quality assured to ensure that the training they provide in order to spot this illegal and harmful content is taken on board?
Richard Earley: I do not believe it is correct that for our company, the majority of moderators are employed by—
Alex Davies-Jones
You do not have the figures, so you cannot tell me.
Richard Earley: I haven’t, no, but I will be happy to let you know afterwards in our written submission. Everyone who is involved in reviewing content at Meta goes through an extremely lengthy training process that lasts multiple weeks, covering not just our community standards in total but also the specific area they are focusing on, such as violence and incitement. If it is hate speech, of course, there is a very important language component to that training, but in other areas—nudity or graphic violence—the language component is less important. We have published quite a lot about the work we do to make sure our moderators are as effective as possible and to continue auditing and training them. I would be really happy to share some of that information, if you want.
Alex Davies-Jones
Q
Richard Earley: I will have to get back to you to confirm that, but I think it applies to everyone who reviews content for Meta, whether they are directly employed by Meta or through one of our outsourced-in persistent partners.
The Chair
Thank you very much. Don’t worry, ladies; I am sure other colleagues will have questions that they wish to pursue. Dean Russell, please.
Dean Russell (Watford) (Con)
Q
One of the reasons why we are bringing in this Bill is that platforms such as Facebook—Meta, sorry—just have not fulfilled their moral obligations to protect children from harm. What commitment are you making within your organisation to align yourself to deliver on the requirements of the Bill?
To be frank, the track record up until now is appalling, and all I hear when in these witness sessions, including before Christmas on the Joint Committee, is that it is as though the big platforms think they are doing a good job—that they are all fine. They have spent billions of pounds and it is not going anywhere, so I want to know what practical measures you are going to be putting into place following this Bill coming into law.
Richard Earley: Of course, I do not accept that we have failed in our moral obligation to our users, particularly our younger users. That is the most important obligation that we have. I work with hundreds of people, and there are thousands of people at our company who spend every single day talking to individuals who have experienced abuse online, people who have lived experience of working with victims of abuse, and human rights defenders—including people in public life such as yourself—to understand the impact that the use of our platform can have, and work every day to make it better.
Dean Russell
Q
Richard Earley: Again, we publish this transparency report every quarter, which is our attempt to show how we are doing at enforcing our rules. We publish how many of the posts that break our rules we take down ourselves, and also our estimates of how likely you are to find a piece of harmful content on the platform—as I mentioned, it is around three in every 10,000 for hate speech right now—but we fully recognise that you will not take our word for it. We expect confidence in that work to be earned, not just assumed.
That is why last year, we commissioned EY to carry out a fully independent audit of these systems. It published that report last week when we published our most recent transparency report and, again, I am very happy to share it with you here. The reason we have been calling for many years for pieces of legislation like this Bill to come into effect is that we think having Ofcom, the regulator—as my colleagues just said—able to look in more detail at the work we are doing, assess the work we are doing, and identify areas where we could do more is a really important part of what this Bill can do.
Dean Russell
Q
Richard Earley: To start with, as I said, we are not waiting for the Bill. We are introducing new products and new changes all the time.
Dean Russell
Q
Richard Earley: Well, I just spoke about some of the changes we made regarding young people, including defaulting them into private accounts. We have launched additional tools making it possible for people to put in lists of words they do not want to see. Many of those changes are aligned with the core objectives of the Bill, which are about assessing early the risks of any new tools that we launch and looking all the time at how the use of technology changes and what new risks that might bring. It is then about taking proactive steps to try to reduce the risk of those harms.
Dean Russell
Q
Richard Earley: This is an issue we have discussed at length with DCMS, and we have consulted a number of people. It is, of course, one of the most sensitive, delicate and difficult issues we have to deal with, and we deal with those cases very regularly. In the process that exists at present, there are, of course, coronial powers. There is a process in the UK and other countries for coroners to request information.
When it comes to access for parents to individuals’ accounts, at present we have a system for legacy contacts on some of our services, where you can nominate somebody to have access to your account after you pass away. We are looking at how that can be expanded. Unfortunately, there are an awful lot of different obligations we have to consider, not least the obligations to a person who used our services and then passed away, because their privacy rights continue after they have passed away too.
Dean Russell
Okay, so there is a compassion element. I am conscious of time, so I will stop there.
The Chair
One moment, please. I am conscious of the fact that we are going to run out of time. I am not prepared to allow witnesses to leave without feeling they have had a chance to say anything. Ms Foreman, Ms O’Donovan, is there anything you want to comment on from what you have heard so far? If you are happy, that is fine, I just want to make sure you are not being short-changed.
Becky Foreman: No.
Katie O'Donovan: No, I look forward to the next question.
Kirsty Blackman (Aberdeen North) (SNP)
Q
Richard Earley: So, reducing that number—the prevalence figure, as we call it—is the goal that we set our engineers and policy teams, and it is what we are devoted to doing. On whether it is a high number, I think we are quite rare among companies of our size in providing that level of transparency about how effective our systems are, and so to compare whether the amount is high or low, you would require additional transparency from other companies. That is why we really welcome the part of the Bill that allows Ofcom to set standards for what kinds of transparency actually are meaningful for people.
We have alighted on the figure of prevalence, because we think it is the best way for you and the public to hold us to account for how we are doing. As I said, that figure of three in every 10,000 has declined from six in every 10,000 about 12 months ago. I hope the figure continues to go down, but it is not just a matter of what we do on our platform. It is about how all of us in society function and the regulations you will all be creating to help support the work we do.
Kirsty Blackman
Q
Richard Earley: I do not know the details of that methodological study. What I can tell you is that every time anyone reports something on Facebook or Instagram, they get a response into their support inbox. We do not put the response directly into your Messenger inbox or IG Direct inbox, because very often when people report something, they do not want to be reminded of what they have seen among messages from their friends and family. Unfortunately, sometimes people do not know about the support inbox and so they miss the response. That could be what happened there, but every time somebody reports something on one of our platforms, they get a response.
Kirsty Blackman
Q
Richard Earley: No. I want to be very constructive here. I should say that some of the concerns that are raised around this date from several years ago. I will accept that five or 10 years ago, the experience on our platforms was not this comprehensive, but in the last few years, we have really increased the transparency we give to people. When you submit something and report it for a particular violation, we give you a response that explains the action we took. If we removed it, we would explain what piece of our community standards it broke. It also gives you a link to see that section of our policy so you can understand it.
That is one way we have tried to increase the transparency we give to users. I think there is a lot more we could be doing. I could talk about some of the additional transparency steps we are taking around the way that our algorithms recommend content to people. Those are, again, all welcome parts of the Bill that we look forward to discussing further with Ofcom.
Kirsty Blackman
Q
Richard Earley: Yes; I think it is already working, in fact. Others on the panel mentioned a few areas in which we have been collaborating in terms of open-sourcing some of the technology we have produced. A few years ago, we produced a grooming classifier—a technology that allows people to spot potentially inappropriate interactions between adults and children—and we open-sourced that and enabled it to be used and improved on by anyone else who is building a social media network.
A number of other areas, such as PhotoDNA, have already been mentioned. An obvious one is the Global Internet Forum to Counter Terrorism, which is a forum for sharing examples of known terrorist content so that those examples can be removed from across the internet. All those areas have been priorities for us in the past. A valuable piece of the Bill is that Ofcom—from what I can see from the reports that it has been asked to make—will do a lot of work to understand where there are further opportunities for collaboration among companies. We will be very keen to continue being involved in that.
Kirsty Blackman
Q
Katie O'Donovan: We are very clear that we want the auto-suggestion, as we call it, to be a helpful tool that helps you find the information that you are looking for quicker—that is the core rationale behind the search—but we really do not want it to perpetuate hate speech or harm for protected individuals or wider groups in society. We have changed the way that we use that auto-complete, and it will not auto-complete to harmful suggestions. That is a live process that we review and keep updated. Sometimes terminology, vernacular or slang change, or there is a topical focus on a particular group of people, so we keep it under review. But by our policy and implementation, those auto-suggestions should very much not be happening on Google search.
Kirsty Blackman
Q
Katie O'Donovan: That is an excellent question on where you do not want protections and safety to minimise user or individual impact. If you wanted a protected characteristic for Jewish people, for example, we see that as really important, and we should remove the ability for hate speech. If you wanted to do that for a Jewish cookbook, Jewish culture or Jewish history, and we removed everything, you would really minimise the amount of content that people could access.
The Bill is totally vital and will be incredibly significant on UK internet access, but that is where it is really important to get the balance and nuance right. Asking an algorithm to do something quite bluntly might look at first glance like it will really improve safety, but when you dig into it, you end up with the available information being much less sophisticated, less impactful and less full, which I think nobody really wants—either for the user or for those protected groups.
Kirsty Blackman
Q
Katie O'Donovan: The way we do it at the moment is through algorithmic learning. That is the most efficient way to do it because we have millions of different search terms, a large number of which we see for the very first time every single day on Google search. We rarely define things with static terms. We use our search rater guidelines—a guide of about 200 pages—to determine how those algorithms work and make sure that we have a dynamic ability to restrict them.
That means that you do not achieve perfection, and there will be changes and new topical uses that we perhaps did not anticipate—we make sure that we have enough data incoming to adjust to that. That is the most efficient way of doing it, and making sure that it has the nuance to stop the bad autocomplete but give access to the great content that we want people to get to.
The Chair
Thank you very much. Ms Foreman, do you want to add anything to that? You do not have to.
Becky Foreman: I do not have anything to add.
Barbara Keeley (Worsley and Eccles South) (Lab)
Q
Richard Earley: There are quite a few different questions there, and I will try to address them as briefly as I can. On the point about harmful Facebook groups, if a Facebook group is dedicated to breaking any of our rules, we can remove that group, even if no harmful content has been posted in it. I understand that was raised in the context of breadcrumbing, so trying to infer harmful intent from innocuous content. We have teams trying to understand how bad actors circumvent our rules, and to prevent them from doing that. That is a core part of our work, and a core part of what the Bill needs to incentivise us to do. That is why we have rules in place to remove groups that are dedicated to breaking our rules, even if no harmful content is actually posted in them.
On the question you asked about transparency, the Bill does an admirable job of trying to balance different types of transparency. There are some kinds of transparency that we believe are meaningful and valid to give to users. I gave the example a moment ago of explaining why a piece of content was removed and which of our community standards it broke. There is other transparency that we think is best given in a more general sense. We have our transparency report, as I said, where we give the figures for how much content we remove, how much of it we find ourselves—
Barbara Keeley
Q
Richard Earley: I completely agree. Apologies for hogging more time, but I think you have hit on an important point there, which is about sharing information with researchers. Last year, we gave data to support the publishing of more than 400 independent research projects, carried out along the lines you have described here. Just yesterday, we announced an expansion of what is called our Facebook open research tool, which expands academics’ ability to access data about advertising.
Barbara Keeley
Q
Richard Earley: Going back to how the Bill works, when it comes to—
Barbara Keeley
No, I am not just asking about the Bill. Will you do that?
Richard Earley: We have not seen the Ofcom guidance on what those risk assessments should contain yet, so it is not possible to say. I think more transparency should always be the goal. If we can publish more information, we will do so.
Barbara Keeley
Q
Katie O'Donovan: To begin with, I would pick up on the importance of transparency. We at Google and YouTube publish many reports on a quarterly or annual basis to help understand the actions we are taking. That ranges from everything on YouTube, where we publish by country the content we have taken down, why we have taken it down, how it was detected and the number of appeals. That is incredibly important information. It is good for researchers and others to have access to that.
We also do things around ads that we have removed and legal requests from different foreign Governments, which again has real validity. I think it is really important that Ofcom will have access to how we work through this—
Barbara Keeley
Q
Katie O'Donovan: I do not want to gloss over the Ofcom point; I want to dwell on it for a second. In anticipation of this Bill, we were able to have conversations with Ofcom about how we work, the risks that we see and how our systems detect that. Hopefully, that is very helpful for Ofcom to understand how it will audit and regulate us, but it also informs how we need to think and improve our systems. I do think that is important.
We make a huge amount of training data available at Google. We publish a lot of shared APIs to help people understand what our data is doing. We are very open to publishing and working with academics.
It is difficult to give a broad statement without knowing the detail of what that data is. One thing I would say—it always sound a bit glib when people in my position say this—is that, in some cases, we do need to be limited in explaining exactly how our systems work to detect bad content. On YouTube, you have very clear community guidelines, which we know we have to publish, because people have a right to know what content is allowed and what is not, but we will find people who go right up to the line of that content very deliberately and carefully—they understand that, almost from a legal perspective. When it comes to fraudulent services and our ads, we have also seen people pivot the way that they attempt to defraud us. There needs to be some safe spaces to share that information. Ofcom is helpful for that too.
Kim Leadbeater (Batley and Spen) (Lab)
Q
Becky Foreman: We have a range of strategies. One thing I would point to is research that we conduct every year and have done for a number of years called the digital civility index. It is a set of research that speaks to teens and adults in a number of countries around the world to understand what harms they are concerned about online and to ascertain whether those harms are increasing or decreasing and how they vary between different geographies. That is one way in which we are trying to make more data and information available to the general public about the type of harms they might come across online and whether they are increasing or decreasing.
Richard Earley: We have a range of different organisations that we work with in the UK and internationally. One that I would like to draw attention to is the Economist Educational Foundation’s Burnet News Club. We have supported them to increase their funding to be able to aim to reach 10% of all state schools with a really incredibly immersive and impressive programme that enables young people to understand digital literacy and digital numeracy and the media. We are also members of the media literacy taskforce of the Department for Digital, Culture, Media and Sport at the moment, which has been working to build on the strategy that the Government published.
Overall, there is a really important role for us as platforms to play here. We regularly commission and start new programmes in this space. What is also really important is to have more guidance from Government and civil society organisations that we work with on what is effective, so that we can know where we can put our resources and boost the greatest work.
Katie O'Donovan: Thank you for the question. It is really important. We were disappointed to see the literacy focus lost in the Bill.
We really take the issue seriously. We know there is an absolute responsibility for us when it comes to product, and an absolute responsibility when it comes to policy. Even within the safest products and with the most impressive and on-it parents, people can be exposed in content in ways that are surprising and shocking. That is why you need this holistic approach. We have long invested in a programme that we run with the non-governmental organisation Parent Zone called “Be internet legends”. When we developed that, we did it with the PSHE Association to make sure it was totally compliant with the national curriculum. We regularly review that to check that it is actually making a difference. We did some recent research with MORI and got some really good results back.
We used to deliver that programme face to face in schools up and down the country. Obviously, the pandemic stopped that. We went online and while we did not enjoy it quite as much, we were able to reach real scale and it was really effective. Along with doing the assemblies, which are now back in person, we deliver a pack for teachers so they can also take that up at scale. We run similar programmes through YouTube with teenagers. It is absolutely incumbent on us to do more, but it must be part of the debate, because if you rely just on technological solutions, you will end up reducing access to lawful information, with some of the harms still being prevalent and people not having the skills to navigate them.
The Chair
I am sorry, but I must move on. Minister, I am afraid you only have five minutes.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)
Q
Richard Earley: What information are you referring to?
Chris Philp
Data, in particular on the operation of algorithmic promotion of particular kinds of content.
Richard Earley: We already do things like that through the direct opportunity that anyone has to see why a single post has been chosen for them in their feed. You can click on the three dots next to any post and see that. For researcher access and support, as I mentioned, we have contributed to the publishing of more than 400 reports over the last year, and we want to do more of that. In fact, the Bill requires Ofcom to conduct a report on how to unlock those sorts of barriers, which we think should be done as soon as possible. Yes, in general we support that sort of research.
I would like say one thing, though. I have worked at Facebook—now Meta—for almost five years, and nobody at Facebook has any obligation, any moral incentive, to do anything other than provide people with the best, most positive experience on our platform, because we know that if we do not give people a positive experience, through algorithms or anything else, they will leave our platform and will not use it. They tell us that and they do it, and the advertisers who pay for our services do not want to see that harmful content on our platforms either. All of our incentives are aligned with yours, which are to ensure that our users have a safe and positive experience on our platforms.
Chris Philp
Q
Richard Earley: I am afraid to say that that is not correct. We have multiple algorithms on our services. Many of them, in fact, do the opposite of what you have just described: they identify posts that might be violent, misleading or harmful and reduce the prevalence of them within our feed products, our recommendation services and other parts of the service.
We optimise the algorithm that shows people things for something called meaningful social interaction. That is not just pure engagement; in fact, its focus—we made a large change to our algorithms in 2018 to focus on this—is on the kinds of activities online that research shows are correlated with positive wellbeing outcomes. Joining a group in your local area or deciding to go to an event that was started by one of your friends—that is what our algorithms are designed to promote. In fact, when we made that switch in 2018, we saw a decrease in more than 50 million hours of Facebook use every day as a result of that change. That is not the action of a company that is just focused on maximising engagement; it is a company that is focused on giving our users a positive experience on our platform.
Chris Philp
Q
Richard Earley: No, because as I just said, when we sent the algorithm this instruction to focus on social interaction it actually decreased the amount of time people spent on our platform.
Chris Philp
Q
Richard Earley: As I said, it is about ensuring that people who spend time on our platform come away feeling that they have had a positive experience.
Chris Philp
Q
Richard Earley: I think that a really valuable part of the Bill that we are here to discuss is the fact that Ofcom will be required, and we in our risk assessments will be required, to consider the impact on the experience of our users of multiple different algorithms, of which we have hundreds. We build those algorithms to ensure that we reduce the prevalence of harmful content and give people the power to connect with those around them and build community. That is what we look forward to demonstrating to Ofcom when this legislation is in place.
Chris Philp
Q
The Chair
Q
Katie O'Donovan: I welcome the opportunity to address the Committee. It is so important that this Bill has parliamentary scrutiny. It is a Bill that the DCMS has spent a lot of time on, getting it right and looking at the systems and the frameworks. However, it will lead to a fundamentally different internet for UK users versus the rest of the world. It is one of the most complicated Bills we are seeing anywhere in the world. I realise that it is very important to have scrutiny of us as platforms to determine what we are doing, but I think it is really important to also look at the substance of the Bill. If we have time, I would welcome the chance to give a little feedback on the substance of the Bill too.
Becky Foreman: I would add that the Committee spent a lot of time talking to Meta, who are obviously a big focus for the Bill, but it is important to remember that there are numerous other networks and services that potentially will be caught by the Bill and that are very different from Meta. It is important to remember that.
Chris Philp
While the Bill is proportionate in its measures, it is not designed to impose undue burdens on companies that are not high risk. I have one more question for Richard. I think Katie was saying that she wanted to make a statement?
The Chair
We are out of time. I am sorry about this; I regard it as woefully unsatisfactory. We have got three witnesses here, a lot of questions that need to be answered, and not enough time to do it. However, we have a raft of witnesses coming in for the rest of the day, so I am going to have to draw a line under this now. I am very grateful to you for taking the trouble to come—the Committee is indebted to you. You must have the opportunity to make your case. Would you be kind enough to put any comments that you wish to make in writing so that the Committee can have them. Feel free to go as broad as you would like because I feel very strongly that you have been short-changed this afternoon. We are indebted to you. Thank you very much indeed.
Richard Earley: We will certainly do that and look forward to providing comments in writing.
Examination of Witnesses
Professor Clare McGlynn, Jessica Eagelton and Janaya Walker gave evidence.
The Chair
Good afternoon. We now hear oral evidence from Professor Clare McGlynn, professor of law at Durham University, Jessica Eagleton, policy and public affairs manager at Refuge, and Janaya Walker, public affairs manager at End Violence Against Women. Ladies, thank you very much for taking the trouble to join us this afternoon. We look forward to hearing from you.
Alex Davies-Jones
Q
Janaya Walker: Thank you for the opportunity to speak today. As you have addressed there, the real consensus among violence against women and girls organisations is for VAWG to be named in the Bill. The concern is that without that, the requirements that are placed on providers of regulated services will be very narrowly tied to the priority illegal content in schedule 7, as well as other illegal content.
We are very clear that violence against women and girls is part of a continuum in which there is a really broad manifestation of behaviour; some reaches a criminal threshold, but there is other behaviour that is important to be understood as part of the wider context. Much of the abuse that women and girls face cannot be understood by only looking through a criminal lens. We have to think about the relationship between the sender and the recipient—if it is an ex-partner, for example—the severity of the abuse they have experienced, the previous history and also the reach of the content. The worry is that the outcome of the Bill will be a missed opportunity in terms of addressing something that the Government have repeatedly committed to as a priority.
As you mentioned, we have worked with Refuge, Clare McGlynn, the NSPCC and 5Rights, bringing together our expertise to produce this full code of practice, which we think the Bill should be amended to include. The code of practice would introduce a cross-cutting duty that tries to mitigate this kind of pocketing of violence against women and girls into those three categories, to ensure that it is addressed really comprehensively.
Alex Davies-Jones
Q
Janaya Walker: I think it will be limited. For the End Violence Against Women Coalition, our priority above all else is having a systems-based approach. Prevention really needs to be at the heart of the Bill. We need to think about the choices that platforms make in the design and operation of their services in order to prevent violence against women and girls in the first instance.
Anonymity has a place in the sense of providing users with agency, particularly in a context where a person is in danger and they could take that step in order to mitigate harm. There is a worry, though, when we look at things through an intersectional lens—thinking about how violence against women and girls intersects with other forms of harm, such as racism and homophobia. Lots of marginalised and minoritised people rely very heavy on being able to participate online anonymously, so we do not want to create a two-tier system whereby some people’s safety is contingent on them being a verified user, which is one option available. We would like the focus to be much more on prevention in the first instance.
The Chair
Professor McGlynn and Ms Eagelton, you must feel free to come in if you wish to.
Alex Davies-Jones
Q
Professor Clare McGlynn: I think it is great that the Government have recognised the harms of cyber-flashing and put that into the Bill. In the last couple of weeks we have had the case of Gaia Pope, a teenager who went missing and died—an inquest is currently taking place in Dorset. The case has raised the issue of the harms of cyber-flashing, because in the days before she went missing she was sent indecent images that triggered post-traumatic stress disorder from a previous rape. On the day she went missing, her aunt was trying to report that to the police, and one of the police officers was reported as saying that she was “taking the piss”.
What I think that case highlights, interestingly, is that this girl was triggered by receiving these images, and it triggered a lot of adverse consequences. We do not know why that man sent her those images, and I guess my question would be: does it actually matter why he sent them? Unfortunately, the Bill says that why he sent them does matter, despite the harm it caused, because it would only be a criminal offence if it could be proved that he sent them with the intention of causing distress or for sexual gratification and being reckless about causing distress.
That has two main consequences. First, it is not comprehensive, so it does not cover all cases of cyber-flashing. The real risk is that a woman, having seen the headlines and heard the rhetoric about cyber-flashing being criminalised, might go to report it to the police but will then be told, “Actually, your case of cyber-flashing isn’t criminal. Sorry.” That might just undermine women’s confidence in the criminal justice system even further.
Secondly, this threshold of having to prove the intention to cause distress is an evidential threshold, so even if you think, as might well be the case, that he sent the image to cause distress, you need the evidence to prove it. We know from the offence of non-consensual sending of sexual images that it is that threshold that limits prosecutions, but we are repeating that mistake here with this offence. So I think a consent-based, comprehensive, straightforward offence would send a stronger message and be a better message from which education could then take place.
The Chair
You are nodding, Ms Eagelton.
Jessica Eagelton: I agree with Professor McGlynn. Thinking about the broader landscape and intimate image abuse as well, I think there are some significant gaps. There is quite a piecemeal approach at the moment and issues that we are seeing in terms of enforcing measures on domestic abuse as well.
Mrs Maria Miller (Basingstoke) (Con)
Q
Professor Clare McGlynn: You make a very good point about how, in essence, criminal offences are now going to play a key part in the obligations of platforms under this Bill. In general, historically, the criminal law has not been a friend to women and girls. The criminal law was not written, designed or interpreted with women’s harms in mind. That means that you have a very piecemeal, confusing, out-of-date criminal law, particularly as regards online abuse, yet that is the basis on which we have to go forward. That is an unfortunate place for us to be, but I think we can strengthen it.
We could strengthen schedule 7 by, for example, including trafficking offences. There are tens of thousands of cases of trafficking, as we know from yourselves and whistleblowers, that platforms could be doing so much more about, but that is not a priority offence. The Obscene Publications Act distribution of unlawful images offence is not included. That means that incest porn, for example, is not a priority offence; it could be if we put obscene publications in that provision. Cyber-flashing, which again companies could take a lot of steps to act against, is not listed as a priority offence. Blackmail—sexual extortion, which has risen exponentially during the pandemic—again is not listed as a priority offence.
Deepfake pornography is a rising phenomenon. It is not an offence in English law to distribute deepfake pornography at the moment. That could be a very straightforward, simple change in the Bill. Only a few words are needed. It is very straightforward to make that a criminal offence, thanks to Scots law, where it is actually an offence to distribute altered images. The way the Bill is structured means the platforms will have to go by the highest standard, so in relation to deepfake porn, it would be interpreted as a priority harm—assuming that schedule 7 is actually altered to include all the Scottish offences, and the Northern Irish ones, which are absent at the moment.
The deepfake example points to a wider problem with the criminal law on online abuse: the laws vary considerably across the jurisdictions. There are very different laws on down-blousing, deepfake porn, intimate image abuse, extreme pornography, across all the different jurisdictions, so among the hundreds of lawyers the platforms are appointing, I hope they are appointing some Scots criminal lawyers, because that is where the highest standard tends to be.
Mrs Miller
Q
Jessica Eagelton: I think something that will particularly help in this instance is having that broad code of practice; that is a really important addition that must be made to the Bill. Refuge is the largest specialist provider of gender-based violence services in the country. We have a specialist tech abuse team who specialise in technology-facilitated domestic abuse, and what they have seen is that, pretty consistently, survivors are being let down by the platforms. They wait weeks and weeks for responses—months sometimes—if they get a response at all, and the reporting systems are just not up to scratch.
I think it will help to have the broad code of practice that Janaya mentioned. We collaborated with others to produce a workable example of what that could look like, for Ofcom to hopefully take as a starting point if it is mandated in the Bill. That sets out steps to improve the victim journey through content reporting, for example. Hopefully, via the code of practice, a victim of deepfakes and other forms of intimate image abuse would be able to have a more streamlined, better response from platforms.
I would also like to say, just touching on the point about schedule 7, that from the point of view of domestic abuse, there is another significant gap in that: controlling and coercive behaviour is not listed, but it should be. Controlling and coercive behaviour is one of the most common forms of domestic abuse. It carries serious risk; it is one of the key aggravating factors for domestic homicide, and we are seeing countless examples of that online, so we think that is another gap in schedule 7.
The Chair
Ms Walker?
Janaya Walker: Some of these discussions almost reiterate what I was saying earlier about the problematic nature of this, in that so much of what companies are going to be directed to do will be tied only to the specific schedule 7 offences. There have been lots of discussions about how you respond to some harms that reach a threshold of criminality and others that do not, but that really contrasts with the best practice approach to addressing violence against women and girls, which is really trying to understand the context and all of the ways that it manifests. There is a real worry among violence against women and girls organisations about the minimal response to content that is harmful to adults and children, but will not require taking such a rigorous approach.
Having the definition of violence against women and girls on the face of the Bill allows us to retain those expectations on providers as technology changes and new forms of abuse emerge, because the definition is there. It is VAWG as a whole that we are expecting the companies to address, rather than a changing list of offences that may or may not be captured in criminal law.
Kirsty Blackman
Q
Jessica Eagelton: I can respond to that in terms of what we are seeing as a provider. Technology-facilitated domestic abuse is an increasing form of domestic abuse: technology is providing perpetrators with increasing ways to abuse and harass survivors. What we are seeing on social media is constant abuse, harassment, intimate image abuse, monitoring and hacking of accounts, but when it comes to the responses we are getting from platforms at the moment, while I acknowledge that there is some good practice, the majority experience of survivors is that platforms are not responding sufficiently to the tech abuse they are experiencing.
Our concern is that the Bill could be a really good opportunity for survivors of domestic abuse to have greater protections online that would mean that they are not forced to come offline. At the moment, some of the options being given to survivors are to block the perpetrator—which in some cases has a minimal impact when they can easily set up new fake accounts—or to come offline completely. First, that is not a solution to that person being able to maintain contact, stay online and take part in public debate. But secondly, it can actually escalate risk in some cases, because a perpetrator could resort to in-person forms of abuse. If we do not make some of these changes—I am thinking in particular about mandating a VAWG code of practice, and looking at schedule 7 and including controlling and coercive behaviour—the Bill is going to be a missed opportunity. Women and survivors have been waiting long enough, and we need to take this opportunity.
Janaya Walker: If I could add to that, as Jessica has highlighted, there is the direct harm to survivors in terms of the really distressing experience of being exposed to these forms of harm, or the harm they experience offline being exacerbated online, but this is also about indirect harm. We need to think about the ways in which the choices that companies are making are having an impact on the extent to which violence against women and girls is allowed to flourish.
As Jessica said, it impacts our ability to participate in online discourse, because we often see a mirroring online of what happens offline, in the sense that the onus is often on women to take responsibility for keeping themselves safe. That is the status quo we see offline, in terms of the decisions we make about what we are told to wear or where we should go as a response to violence against women and girls. Similarly, online, the onus is often on us to come offline or put our profiles on private, to take all those actions, or to follow up with complaints to various different companies that are not taking action. There is also something about the wider impact on society as a whole by not addressing this within the Bill.
Kirsty Blackman
Q
Janaya Walker: This is a really important question. We often highlight the fact that, as I have said, violence against women and girls often intersects with other forms of discrimination. For example, we know from research that EVAW conducted with Glitch during the pandemic that black and minoritised women and non-binary people experience a higher proportion of abuse. Similarly, research done by Amnesty International shows that black women experience harassment at a rate 84% higher than that experienced by their white counterparts. It is a real focal point. When we think about the abuse experienced, we see the ways that people’s identities are impacted and how structural discrimination emerges online.
What we have done with the code of practice is try to introduce requirements for the companies to think about things through that lens, so having an overarching human rights and equalities framework and having the Equality Act protected characteristics named as a minimum. We see in the Bill quite vague language when it comes to intersectionality; it talks about people being members of a certain group. We do not have confidence that these companies, which are not famed for their diversity, will interpret that in a way that we regard as robust—thinking very clearly about protected characteristics, human rights and equalities legislation. The vagueness in the Bill is quite concerning. The code of practice is an attempt to be more directive on what we want to see and how to think through issues in a way that considers all survivors, all women and girls.
Professor Clare McGlynn: I wholly agree. The code of practice is one way by which we can explain in detail those sorts of intersecting harms and what companies and platforms should do, but I think it is vital that we also write it into the Bill. For example, on the definitions around certain characteristics and certain groups, in previous iterations reference was made to protected characteristics. I know certain groups can go wider than that, but naming those protected characteristics is really important, so that they are front and centre and the platforms know that that is exactly what they have to cover. That will cover all the bases and ensure that that happens.
Kirsty Blackman
I have a quite specific question on something that is a bit tangential.
Kirsty Blackman
Q
Professor Clare McGlynn: That is quite challenging not only for pornography platforms but for sex workers, in that if you could participate in pornography but at any time thereafter withdraw your consent, it is difficult to understand how a pornography company and the sex worker would be able to make a significant amount of money. The company would be reluctant to invest because it might have to withdraw the material at any time. In my view, that is a quite a challenge. I would not go down that route, because what it highlights is that the industry can be exploitative and that is where the concern comes from. I think there are other ways to deal with an exploitative porn industry and other ways to ensure that the material online has the full consent of participants. You could put some of those provisions into the Bill—for example, making the porn companies verify the age and consent of those who are participating in the videos for them to be uploaded. I think that is a better way to deal with that, and it would ensure that sex workers themselves can still contract to perform in porn and sustain their way of life.
Kim Leadbeater
Q
Janaya Walker: A lot of what we have discussed in terms of naming violence against women and girls on the face of the Bill includes children. We know that four in five offences of sexual communications with a child involved girls, and a lot of child abuse material is targeted at girls specifically. The Bill as a whole takes a very gender-neutral approach, which we do not think is helpful; in fact, we think it is quite harmful to trying to reduce the harm that girls face online.
This goes against the approach taken in the Home Office violence against women and girls strategy and its domestic abuse plan, as well as the gold-standard treaties the UK has signed up to, such as the Istanbul convention, which we signed and have recently committed to ratifying. The convention states explicitly that domestic laws, including on violence against women and girls online, need to take a very gendered approach. Currently, it is almost implied, with references to specific characteristics. We think that in addressing the abuse that girls, specifically, experience, we need to name girls. To clarify, the words “women”, “girls”, “gender” and “sex” do not appear in the Bill, and that is a problem.
Jessica Eagelton: May I add a point that is slightly broader than your question? Another thing that the Bill does not do at the moment is provide for specialist victim support for girls who are experiencing online abuse. There has been some discussion about taking a “polluter pays” approach; where platforms are not compliant with the duties, for example, a percentage of the funds that go to the regulator could go towards victim support services, such as the revenge porn helpline and Refuge’s tech abuse team, that provide support to victims of abuse later on.
Professor Clare McGlynn: I can speak to pornography. Do you want to cover that separately, or shall I do that now?
Kim Leadbeater
That is fine.
Professor Clare McGlynn: I know that there was a discussion this morning about age assurance, which obviously targets children’s access to pornography. I would emphasise that age assurance is not a panacea for the problems with pornography. We are so worried about age assurance only because of the content that is available online. The pornography industry is quite happy with age verification measures. It is a win-win for them: they get public credibility by saying they will adopt it; they can monetise it, because they are going to get more data—especially if they are encouraged to develop age verification measures, which of course they have been; that really is putting the fox in charge of the henhouse—and they know that it will be easily evaded.
One of the most recent surveys of young people in the UK was of 16 and 17-year-olds: 50% of them had used a VPN, which avoids age verification controls, and 25% more knew about that, so 75% of those older children knew how to evade age assurance. This is why the companies are quite happy—they are going to make money. It will stop some people stumbling across it, but it will not stop most older children accessing pornography. We need to focus on the content, and when we do that, we have to go beyond age assurance.
You have just heard Google talking about how it takes safety very seriously. Rape porn and incest porn are one click away on Google. They are freely and easily accessible. There are swathes of that material on Google. Twitter is hiding in plain sight, too. I know that you had a discussion about Twitter this morning. I, like many, thought, “Yes, I know there is porn on Twitter,” but I must confess that until doing some prep over the last few weeks, I did not know the nature of that porn. For example, “Kidnapped in the wood”; “Daddy’s little girl comes home from school; let’s now cheer her up”; “Raped behind the bin”—this is the material that is on Twitter. We know there is a problem with Pornhub, but this is what is on Twitter as well.
As the Minister mentioned this morning, Twitter says you have to be 13, and you have to be 18 to try to access much of this content, but you just put in whatever date of birth is necessary—it is that easy—and you can get all this material. It is freely and easily accessible. Those companies are hiding in plain sight in that sense. The age verification and age assurance provisions, and the safety duties, need to be toughened up.
To an extent, I think this will come down to the regulator. Is the regulator going to accept Google’s SafeSearch as satisfying the safety duties? I am not convinced, because of the easy accessibility of the rape and incest porn I have just talked about. I emphasise that incest porn is not classed as extreme pornography, so it is not a priority offence, but there are swathes of that material on Pornhub as well. In one of the studies that I did, we found that one in eight titles on the mainstream pornography sites described sexually violent material, and the incest material was the highest category in that. There is a lot of that around.
Barbara Keeley
Q
Professor Clare McGlynn: In many ways, it is going to be up to the regulator. Is the regulator going to deem that things such as SafeSearch, or Twitter’s current rules about sensitive information—which rely on the host to identify their material as sensitive—satisfy their obligations to minimise and mitigate the risk? That is, in essence, what it will all come down to.
Are they going to take the terms and conditions of Twitter, for example, at face value? Twitter’s terms and conditions do say that they do not want sexually violent material on there, and they even say that it is because they know it glorifies violence against women and girls, but this material is there and does not appear to get swiftly and easily taken down. Even when you try to block it—I tried to block some cartoon child sexual abuse images, which are easily available on there; you do not have to search for them very hard, it literally comes up when you search for porn—it brings you up five or six other options in case you want to report them as well, so you are viewing them as well. Just on the cartoon child sexual abuse images, before anyone asks, they are very clever, because they are just under the radar of what is actually a prohibited offence.
It is not necessarily that there is more that the Bill itself could do, although the code of practice would ensure that they have to think about these things more. They have to report on their transparency and their risk assessments: for example, what type of content are they taking down? Who is making the reports, and how many are they upholding? But it is then on the regulator as to what they are going to accept as acceptable, frankly.
Barbara Keeley
Do any other panellists want to add to that?
Janaya Walker: Just to draw together the questions about pornography and the question you asked about children, I wanted to highlight one of the things that came up earlier, which was the importance of media literacy. We share the view that that has been rolled back from earlier versions of the draft Bill.
There has also been a shift, in that the emphasis of the draft Bill was also talking about the impact of harm. That is really important when we are talking about violence against women and girls, and what is happening in the context of schools and relationship and sex education. Where some of these things like non-consensual image sharing take place, the Bill as currently drafted talks about media literacy and safe use of the service, rather than the impact of such material and really trying to point to the collective responsibility that everyone has as good digital citizens—in the language of Glitch—in terms of talking about online violence against women and girls. That is an area in which the Bill could be strengthened from the way it is currently drafted.
Jessica Eagelton: I completely agree with the media literacy point. In general, we see very low awareness of what tech abuse is. We surveyed some survivors and did some research last year—a public survey—and almost half of survivors told no one about the abuse they experienced online at the hands of their partner or former partner, and many of the survivors we interviewed did not understand what it was until they had come to Refuge and we had provided them with support. There is an aspect of that to the broader media literacy point as well: increasing awareness of what is and is not unacceptable behaviour online, and encouraging members of the public to report that and call it out when they see it.
Barbara Keeley
Q
Professor Clare McGlynn: Inevitably, it would have to work from any time that that requirement was put in place, in reality. That measure is being discussed in the Canadian Parliament at the moment—you might know that Pornhub’s parent company, MindGeek, is based in Canada, which is why they are doing a lot of work in that regard. The provision was also put forward by the European Parliament in its debates on the Digital Services Act. Of course, any of these measures are possible; we could put it into the Bill that that will be a requirement.
Another way of doing it, of course, would be for the regulator to say that one of the ways in which Pornhub, for example—or XVideos or xHamster—should ensure that they are fulfilling their safety duties is by ensuring the age and consent of those for whom videos are uploaded. The flipside of that is that we could also introduce an offence for uploading a video and falsely representing that the person in the video had given their consent to that. That would mirror offences in the Fraud Act 2006.
The idea is really about introducing some element of friction so that there is a break before images are uploaded. For example, with intimate image abuse, which we have already talked about, the revenge porn helpline reports that for over half of the cases of such abuse that it deals with, the images go on to porn websites. So those aspects are really important. It is not just about all porn videos; it is also about trying to reduce the distribution of non-consensual videos.
Nick Fletcher (Don Valley) (Con)
Q
I am concerned about VPNs. Will the Bill stop anyone accessing through VPNs? Is there anything we can do about that? I googled “VPNs” to find out what they were, and apparently there is a genuine need for them when using public networks, because it is safer. Costa Coffee suggests that people do so, for example. I do not know how we could work that.
You have obviously educated me, and probably some of my colleagues, about some of the sites that are available. I do not mix in circles where I would be exposed to that, but obviously children and young people do and there is no filter. If I did know about those things, I would probably not speak to my colleagues about it, because that would probably not be a good thing to do, but younger people might think it is quite funny to talk about. Do you think there is an education piece there for schools and parents? Should these platforms be saying to them, “Look, this is out there, even though you might not have heard of it—some MPs have not heard of it.” We ought to be doing something to protect children by telling parents what to look out for. Could there be something in the Bill to force them to do that? Do you think that would be a good idea? There is an awful lot there to answer—sorry.
Professor Clare McGlynn: On VPNs, I guess it is like so much technology: obviously it can be used for good, but it can also be used to evade regulations. My understanding is that individuals will be able to use a VPN to avoid age verification. On that point, I emphasise that in recent years Pornhub, at the same time as it was talking to the Government about developing age verification, was developing its own VPN app. At the same time it was saying, “Of course we will comply with your age verification rules.”
Don’t get me wrong: the age assurance provisions are important, because they will stop people stumbling across material, which is particularly important for the very youngest. In reality, 75% know about VPNs now, but once it becomes more widely known that this is how to evade it, I expect that all younger people will know how to do so. I do not think there is anything else you can do in the Bill, because you are not going to outlaw VPNs, for the reasons you identified—they are actually really important in some ways.
That is why the focus needs to be on content, because that is what we are actually concerned about. When you talk about media literacy and understanding, you are absolutely right, because we need to do more to educate all people, including young people—it does not just stop at age 18—about the nature of the pornography and the impact it can have. I guess that goes to the point about media literacy as well. It does also go to the point about fully and expertly resourcing sex and relationships education in school. Pornhub has its own sex education arm, but it is not the sex education arm that I think many of us would want to be encouraging. We need to be doing more in that regard.
Nick Fletcher
Q
Professor Clare McGlynn: I do. We are beginning to reach the limits of my technical knowledge.
Nick Fletcher
You have gone beyond mine anyway.
Professor Clare McGlynn: You might be able to do that through regulations on your phone. If you have a phone that is age-protected, you might not be able to download a particular VPN app, perhaps. Maybe you could do that, but people would find ways to evade that requirement as well. We have to tackle the content. That is why you need to tackle Google and Twitter as well as the likes of Pornhub.
Chris Philp
Q
“only entitled to conclude that it is not possible for children to access a service…if there are systems or processes in place…that achieve the result that children are not normally able to access the service”.
Ofcom will then interpret in codes of practice what that means practically. Professor McGlynn, do you think that standard set out there—
“the result that children are not normally able to access the service or that part of it”
—is sufficiently high to address the concerns we have been discussing in the last few minutes?
Professor Clare McGlynn: At the moment, the wording with regard to age assurance in part 5—the pornography providers—is slightly different, compared with the other safety duties. That is one technicality that could be amended. As for whether the provision you just talked about is sufficient, in truth I think it comes down, in the end, to exactly what is required, and of course we do not yet know what the nature of the age verification or age assurance requirements will actually be and what that will actually mean.
I do not know what that will actually mean for something like Twitter. What will they have to do to change it? In principle, that terminology is possibly sufficient, but it kind of depends in practice what it actually means in terms of those codes of practice. We do not yet know what it means, because all we have in the Bill is about age assurance or age verification.
Chris Philp
Q
Professor Clare McGlynn: My understanding as well is that those terms are, at the moment, being interpreted slightly differently in terms of the requirements that people will be under. I am just making a point about it probably being easier to harmonise those terms.
Chris Philp
Q
Professor Clare McGlynn: I read your piece in The Times this morning, which was a robust defence of the legislation, in that it said that it is no threat to freedom of speech, but I hope you read my quote tweet, in which I emphasised that there is a strong case to be made for regulation to free the speech of many others, including women and girls and other marginalised people. For example, the current lack of regulation means that women’s freedom of speech is restricted because we fear going online because of the abuse we might encounter. Regulation frees speech, while your Bill does not unduly limit freedom of speech.
Chris Philp
Q
Professor Clare McGlynn: There are many ways in which speech is regulated. The social media companies already make choices about what speech is online and offline. There are strengths in the Bill, such as the ability to challenge when material is taken offline, because that can impact on women and girls as well. They might want to put forward a story about their experiences of abuse, for example. If that gets taken down, they will want to raise a complaint and have it swiftly dealt with, not just left in an inbox.
There are lots of ways in which speech is regulated, and the idea of having a binary choice between free speech and no free speech is inappropriate. Free speech is always regulated, and it is about how we choose to regulate it. I would keep making the point that the speech of women and girls and other marginalised people is minimised at the moment, so we need regulation to free it. The House of Lords and various other reports about free speech and regulation, for example, around extreme pornography, talk about regulation as being human-rights-enhancing. That is the approach we need to take.
The Chair
Thank you very much indeed. Once again, I am afraid I have to draw the session to a close, and once again we have probably not covered all the ground we would have liked. Professor McGlynn, Ms Walker, Ms Eagleton, thank you very much indeed. As always, if you have further thoughts or comments, please put them in writing and let us know. We are indebted to you.
Examination of Witnesses
Lulu Freemont, Ian Stevenson and Adam Hildreth gave evidence.
The Chair
We will now hear oral evidence from Lulu Freemont, head of digital regulation at techUK; Ian Stevenson, the chairman of OSTIA; and Adam Hildreth, chief executive officer of Crisp, who is appearing by Zoom—and it works. Thank you all for joining us. I will not waste further time by asking you to identify yourselves, because I have effectively done that for you. Without further ado, I call Alex Davies-Jones.
Alex Davies-Jones
Q
Lulu Freemont: Hi everybody. Thank you so much for inviting techUK to give evidence today. Just to give a small intro to techUK, so that you know the perspective I am coming from, we are the trade body for the tech sector. We have roughly 850 tech companies in our membership, the majority of which are small and medium-sized enterprises. We are really focused on how this regime will work for the 25,000 tech companies that are set to be in scope, and our approach is really on the implementation and how the Bill can deliver on the objectives.
Thank you so much for the question. There are some definite risks when we think about smaller businesses and the Online Safety Bill. Today, we have heard a lot of the names that come up with regard to tech companies; they are the larger companies. However, this will be a regime that impacts thousands of different tech companies, with different functionalities and different roles within the ecosystem, all of which contribute to the economy in their own way.
There are specific areas to be addressed in the Bill, where there are some threats to innovation and investment by smaller businesses. First, greater clarity is needed. In order for this regime to be workable for smaller businesses, they need clarity on guidelines and on definitions, and they also need to be confident that the systems and processes that they put in place will be sustainable—in other words, the right ones.
Certain parts of the regime risk not having enough clarity. The first thing that I will point to is around the definitions of harm. We would very much welcome having some definitions of harmful content, or even categories of harmful content, in primary legislation. It might then be for Ofcom to determine how those definitions are interpreted within the codes, but having things to work off and types of harmful content for smaller businesses to start thinking about would be useful; obviously, that will be towards children, given that they are likely to be category 2.
The second risk for smaller businesses is really around the powers of the Secretary of State. I think there is a real concern. The Secretary of State will have some technical powers, which are pretty much normal; they are what you would expect in any form of regulation. However, the Online Safety Bill goes a bit further than that, introducing some amendment powers. So, the Secretary of State can modify codes of practice to align with public policy. In addition to that, there are provisions to allow the Secretary of State to set thresholds between the categories of companies.
Smaller businesses want to start forming a strong relationship with Ofcom and putting systems and processes in place that they can feel confident in. If they do not have that level of confidence and if the regime could be changed at any point, they might not be able to progress with those systems and processes, and when it comes to kind of pushing them out of the market, they might not be able to keep up with some of the larger companies that have been very much referenced in every conversation.
So, we need to think about proportionality, and we need to think about Ofcom’s independence and the kind of relationship that it can form with smaller businesses. We also need to think about balance. This regime is looking to strike a balance between safety, free speech and innovation in the UK’s digital economy. Let us just ensure that we provide enough clarity for businesses so that they can get going and have confidence in what they are doing.
Alex Davies-Jones
Q
The Chair
May I just apologise before we go any further, because I got you both the wrong way round? I am sorry. It is Mr Stevenson who is online and it is Adam Hildreth who is here in body and person.
Adam Hildreth: I think we have evolved as a world actually, when it comes to online safety. I think that if you went back five or 10 years, safety would have come after your people had developed their app, their platform or whatever they were creating from a tech perspective. I think we are now in a world where safety, in various forms, has to be there by default. And moving on to your point, we have to understand what that means for different sizes of businesses. The risk assessment word or phrase for me is the critical part there, which is putting blocks in front of people who are innovating and creating entrepreneurial businesses that make the online world a better place. Putting those blocks in without them understanding whether they can compete or not in an open and fair market is where we do not want to be.
So, getting to the point where it is very easy to understand is important—a bit like where we got to in other areas, such as data protection and where we went with the GDPR. In the end, it became simplified; I will not use the word “simplified” ever again in relation to GDPR, but it did become simplified from where it started. It is really important for anyone developing any type of tech platform that the Online Safety Bill will affect that they understand exactly what they do and do not have to put in place; otherwise, they will be taken out just by not having a legal understanding of what is required.
The other point to add, though, is that there is a whole other side to online safety, which is the online safety tech industry. There are tons of companies in the UK and worldwide that are developing innovative technologies that solve these problems. So, there is a positive as well as an understanding of how the Bill needs to be created and publicised, so that people understand what the boundaries are, if you are a UK business.
The Chair
Mr Stevenson, you are nodding. Do you want to come in?
Ian Stevenson: I agree with the contributions from both Adam and Lulu. For me, one of the strengths of the Bill in terms of the opportunity for innovators is that so much is left to Ofcom to provide codes of practice and so on in the future, but simultaneously that is its weakness in the short term. In the absence of those codes of practice and definitions of exactly where the boundaries between merely undesirable and actually harmful and actionable might lie, the situation is very difficult. It is very difficult for companies like my own and the other members of the Online Safety Tech Industry Association, who are trying to produce technology to support safer experiences online, to know exactly what that technology should do until we know which harms are in scope and exactly what the thresholds are and what the definitions of those harms are. Similarly, it is very hard for anybody building a service to know what technologies, processes and procedures they will need until they have considerably more detailed information than they have at the moment.
I agree that there are certain benefits to having more of that in the Bill, especially when it comes to the harms, but in terms of the aspiration and of what I hear is the objective of the Bill—creating safer online experiences—we really need to understand when we are going to have much more clarity and detail from Ofcom and any other relevant party about exactly what is going to be seen as best practice and acceptable practice, so that people can put in place those measures on their sites and companies in the Online Safety Tech Industry Association can build the tools to help support putting those measures in place.
Alex Davies-Jones
Q
“The successful post holder will play a key role in online safety as the policy advisor on Funding for the Online Safety Regulator.”
Basically, their job is to raise money for Ofcom. Does that suggest concerns about the role of Ofcom going forward, its funding, and its resource and capacity to support those 25,000 platforms?
Lulu Freemont: It is a very interesting question. We really support Ofcom in this role. We think that it has a very good track record with other industries that are also in techUK’s membership, such as broadcasters. It has done a very good job at implementing proportionate regulation. We know that it has been increasing its capacity for some time now, and we feel confident that it is working with us as the trade and with a range of other experts to try to understand some of the detail that it will have to understand to regulate.
One of the biggest challenges—we have had this conversation with Ofcom as well—is to understand the functionalities of tech services. The same functionality might be used in a different context, and that functionality could be branded as very high risk in one context but very low risk in another. We are having those conversations now. It is very important that they are being had now, and we would very much welcome Ofcom publishing drafts. We know that is its intention, but it should bring everything forward in terms of all the gaps in this regulation that are left to Ofcom’s codes, guidance and various other documentation.
Adam Hildreth: One of the challenges that I hear a lot, and that we hear a lot at Crisp in our work, is that people think that the Bill will almost eradicate all harmful content everywhere. The challenge that we have with content is that every time we create a new technology or mechanism that defeats harmful or illegal content, the people who are creating it—they are referred to in lots of ways, but bad actors, ultimately—create another mechanism to do it. It is very unlikely that we will ever get to a situation in which it is eradicated from every platform forever—though I hope we do.
What is even harder for a regulator is to be investigating why a piece of content is on a platform. If we get to a position where people are saying, “I saw this bit of content; it was on a platform,” that will be a really dangerous place to be, because the funding requirement for any regulator will go off the charts—think about how much content we consume. I would much prefer to be in a situation where we think about the processes and procedures that a platform puts in place and making them appropriate, ensuring that if features are aimed at children, they do a risk assessment so that they understand how those features are being used and how they could affect children in particular—or they might have a much more diverse user group, whereby harm is much less likely.
So, risk assessments and, as Ian mentioned, technologies, processes and procedures—that is the bit that a regulator can do well. If your risk assessment is good and your technology, process and procedures are as good as they can be based on a risk assessment, that almost should mean that you are doing the best job you possibly can to stop that content appearing, but you are not eradicating it. It really worries me that we are in a position whereby people are going to expect that they will never see content on a platform again, even though billions of pieces of potentially harmful content could have been removed from those platforms.
Alex Davies-Jones
Q
Adam Hildreth: I helped personally in 2000 and 2001, when online grooming did not even exist as a law, so I have been involved in this an awful long time, waiting for laws to exist. I do not think we will ever be in a situation in which they are future-proofed if we keep putting every possibility into law. There needs to be some principles there. There are new features launched every day, and assessments need to be made about who they pose a risk to and the level of risk. In the same way as you would do in all kinds of industries, someone should do an assessment from a health and safety perspective. From that, you then say, “Can we even launch it at all? Is it feasible? Actually, we can, because we can take this amount of risk.” Once they understand those risk assessments, technology providers can go further and develop technology that can combat this.
If we can get to the point where it is more about process and the expectations around people who are creating any types of online environments, apps or technologies, it will be future-proofed. If we start trying to determine exact pieces of content, what will happen is that someone will work out a way around it tomorrow, and that content will not be included in the Bill, or it will take too long to get through and suddenly, the whole principle of why we are here and why we are having this discussion will go out the window. That is what we have faced every day since 1998: every time the technology works out how to combat a new risk—whether that is to children, adults, the economy or society—someone comes along and works out a way around the technology or around the rules and regulations. It needs to move quickly; that will future-proof it.
The Chair
I have four Members plus the Minister to get in, so please be brief. I call Dean Russell.
Dean Russell
Q
Lulu Freemont: On future-proofing, one of the real strengths of the Bill is the approach: it is striving to rely on systems and processes, to be flexible and to adapt to future technologies. If the Bill sticks to that approach, it will have the potential to be future-proof. Some points in the Bill raise a slight concern about the future-proofness of the regulation. There is a risk that mandating specific technologies—I know that is one of Ofcom’s powers under the Bill—would put a bit of a timestamp on the regulation, because those technologies will likely become outdated at some point. Ensuring that the regulation remains flexible enough to build on the levels of risk that individual companies have, and on the technologies that work for the development and innovation of those individual companies, will be a really important feature, so we do have some concerns around the mandating of specific technologies in the Bill.
On the point about setting up a committee, one of the things for which techUK has called for a really long time is an independent committee that could think about the current definitions of harm and keep them under review. As companies put in place systems and processes that might mitigate levels of risk of harm, will those levels of harm still be harmful? We need to constantly evolve the regime so that it is true to the harms and risks that are present today, and to evaluate it against human rights implications. Having some sort of democratically led body to think about those definitional points and evaluate them as times change and harm reduces through this regime would be very welcome.
Adam Hildreth: To add to that, are people starting to think differently? Yes, they definitely are. That ultimately, for me, is the purpose of the Bill. It is to get people to start thinking about putting safety as a core principle of what they do as an overall business—not just in the development of their products, but as the overall business. I think that will change things.
A lot of the innovation that comes means that safety is not there as the principal guiding aspect, so businesses do need some help. Once they understand how a particular feature can be exploited, or how it impacts certain demographics or particular age groups—children being one of them—they will look for solutions. A lot of the time, they have no idea before they create this amazing new metaverse, or this new metaverse game, that it could actually be a container for harmful content or new types of harm. I think this is about getting people to think. The risk assessment side is critical, for me—making sure they go through that process or can bring on experts to do that.
Ian Stevenson: I would split the future-proofing question into two parts. There is a part where this Bill will provide Ofcom with a set of powers, and the question will be: does Ofcom have the capacity and agility to keep up with the rate of change in the tech world? Assuming it does, it will be able to act fairly quickly. There is always a risk, however, that once a code of conduct gets issued, it becomes very difficult to update that code of conduct in a responsive way.
There is then a second piece, which is: are the organisations that are in scope of regulation, and the powers that Ofcom has, sufficient as things change? That is where the idea of a long-term committee to keep an eye on this is extremely helpful. That would be most successful if it did not compromise Ofcom’s independence by digging deeply into individual codes of conduct or recommendations, but rather focused on whether Ofcom has the powers and capacity that it needs to regulate as new types of company, platform and technology come along.
Kirsty Blackman
Q
Lulu Freemont: It is a great question. One of the biggest challenges is capacity. We hear quite a lot from the smaller tech businesses within our membership that they will have to divert their staff away from existing work to comply with the regime. They do not have compliance teams, and they probably do not have legal counsel. Even at this stage, to try to understand the Bill as it is currently drafted—there are lots of gaps—they are coming to us and saying, “What does this mean in practice?” They do not have the answers, or the capability to identify that. Attendant regulatory costs—thinking about the staff that you have and the cost, and making sure the regulation is proportionate to the need to divert away from business development or whatever work you might be doing in your business—are really fundamental.
Another real risk, and something in the Bill that smaller businesses are quite concerned about, is the potential proposal to extend the senior management liability provisions. We can understand them being in there to enable the regulators to do their job—information requests—but if there is any extension into individual pieces of content, coupled with a real lack of definitions, those businesses might find themselves in the position of restricting access to their services, removing too much content or feeling like they cannot comply with the regime in a proportionate way. That is obviously a very extreme case study. It will be Ofcom’s role to make sure that those businesses are being proportionate and understand the provisions, but the senior management liability does have a real, chilling impact on the smaller businesses within our membership.
Adam Hildreth: One of the challenges that we have seen over the last few years is that you can have a business that is small in revenue but has a huge global user base, with millions of users, so it is not really a small business; it just has not got to the point where it is getting advertisers and getting users to pay for it. I have a challenge on the definition of a small to medium-sized business. Absolutely, for start-ups with four people in a room—or perhaps even still just two—that do not have legal counsel or anything else, we need to make it simple for those types of businesses to ingest and understand what the principles are and what is expected of them. Hopefully they will be able to do quite a lot early on.
The real challenge comes when someone labels themselves as a small business but they have millions of users across the globe—and sometimes actually quite a lot of people working for them. Some of the biggest tech businesses in the world that we all use had tens of people working for them at one point in time, when they had millions of users. That is the challenge, because there is an expectation for the big-tier providers to be spending an awful lot of money, when the small companies are actually directly competing with them. There is a challenge to understanding the definition a small business and whether that is revenue-focused, employee-focused or about how many users it has—there may be other metrics.
Ian Stevenson: One of the key questions is how much staffing this will actually take. Every business in the UK that processes data is subject to GDPR from day one. Few of them have a dedicated data protection officer from day one; it is a role or responsibility that gets taken on by somebody within the organisation, or maybe somebody on the board who has some knowledge. That is facilitated by the fact that there are a really clear set of requirements there, and there are a lot of services you can buy and consume that help you deliver compliance. If we can get to a point where we have codes of practice that make very clear recommendations, then even small organisations that perhaps do not have that many staff to divert should be able to achieve some of the basic requirements of online safety by buying in the services and expertise that they need. We have seen with GDPR that many of those services are affordable to small business.
If we can get the clarity of what is required right, then the staff burden does not have to be that great, but we should all remember that the purpose of the Bill is to stop some of the egregiously bad things that happen to people as a result of harmful content, harmful behaviours and harmful contact online. Those things have a cost in the same way that implementing data privacy has a cost. To come back to Lulu’s point, it has to be proportionate to the business.
Mrs Miller
Q
Adam Hildreth: What we are seeing from the people that are getting really good at this and that really understand it is that they are treating this as a proper risk assessment, at a very serious level, across the globe. When we are talking about tier 1s, they are global businesses. When they do it really well, they understand risk and how they are going to roll out systems, technology, processes and people in order to address that. That can take time. Yes, they understand the risk, who it is impacting and what they are going to do about it, but they still need to train people and develop processes and maybe buy or build technology to do it.
We are starting to see that work being done really well. It is done almost in the same way that you would risk assess anything else: corporate travel, health and safety in the workplace—anything. It should really become one of those pillars. All those areas I have just gone through are regulated. Once you have regulation there, it justifies why someone is doing a risk assessment, and you will get businesses and corporates going through that risk assessment process. We are seeing others that do not do the same level of risk assessment and they do not have that same buy-in.
Mrs Miller
Q
Lulu Freemont: TechUK’s membership is really broad. We have cyber and defence companies in our membership, and large platforms and telcos. We speak on behalf of the sector. We would say that there is a real commitment to safety and security.
To bring it back to regulation, the risk-based approach is very much the right one—one that we think has the potential to really deliver—but we have to think about the tech ecosystem and its diversity. Lots of TechUK members are on the business-to-business side and are thinking about the role that they play in supporting the infrastructure for many of the platforms to operate. They are not entirely clear that they are exempt in the Bill. We understand that it is a very clear policy intention to exempt those businesses, but they do not have the level of legal clarity that they need to understand their role as access facilities within the tech.
That is just one example of a part of the sector that you would not expect to be part of this culture change or regulation but which is being caught in it slightly as an unintended consequence of legal differences or misinterpretations. Coming from that wide-sector perspective, we think that we need clarity on those issues to understand the different functionalities, and each platform and service will be different in their approach to this stuff.
Mrs Miller
Q
Ian Stevenson: I think you have to look at the change you are trying to effect. For many people in the sector, there is a lack of awareness about what happens when the need to consider safety in building features is not put first. Even when you realise how many bad things can happen online, if you do not know what to do about it, you tend not to be able to do anything about it.
If we want to change culture—it is the same for individual organisations as for the sector as a whole—we have to educate people on what the problem is and give them the tools to feel empowered to do something about it. If you educate and empower people, you remove the barrier to change. In some places, an extremely ethical people-centric and safety-focused culture very naturally emerges, but in others, less so. That is precisely where making it a first-class citizen in terms of risk assessment for boards and management becomes so important. When people see management caring about things, that gets pushed out through the organisations.
Kim Leadbeater
Q
“the safest place in the world to be online”?
Lulu Freemont: First, I want to outline that there are some strong parts in the Bill that the sector really supports. I think the majority of stakeholders would agree that the objectives are the right ones. The Bill tries to strike a balance between safety, free speech and encouraging innovation and investment in the UK’s digital economy. The approach—risk-based, systems-led and proportionate—is the right one for the 25,000 companies that are in scope. As it does not focus on individual pieces of content, it has the potential to be future-proof and to achieve longer-term outcomes.
The second area in the Bill that we think is strong is the prioritisation of illegal content. We very much welcome the clear definitions of illegal content on the face of the Bill, which are incredibly useful for businesses as they start to think about preparing for their risk assessment on illegal content. We really support Ofcom as the appropriate regulator.
There are some parts of the Bill that need specific focus and, potentially, amendments, to enable it to deliver on those objectives without unintended consequences. I have already mentioned a few of those areas. The first is defining harmful content in primary legislation. We can leave it to codes to identify the interpretations around that, but we need definitions of harmful content so that businesses can start to understand what they need to do.
Secondly, we need clarity that businesses will not be required to monitor every piece of content as a result of the Bill. General monitoring is prohibited in other regions, and we have concerns that the Online Safety Bill is drifting away from those norms. The challenges of general monitoring are well known: it encroaches on individual rights and could result in the over-removal of content. Again, we do not think that the intention is to require companies of all sizes to look at every piece of content on their site, but it might be one of the unintended consequences, so we would like an explicit prohibition of general monitoring on the face of the Bill.
We would like to remove the far-reaching amendment powers of the Secretary of State. We understand the need for technical powers, which are best practised within regulation, but taking those further so that the Secretary of State can amend the regime in such an extreme way to align with public policy is of real concern, particularly to smaller businesses looking to confidently put in place systems and processes. We would like some consideration of keeping senior management liability as it is. Extending that further is only going to increase the chilling impact that it is having and the environment it is creating within UK investment. The final area, which I have just spoken about, is clarifying the scope. The business-to-business companies in our membership need clarity that they are not in scope and for that intention to be made clear on the face of the Bill.
We really support the Bill. We think it has the potential to deliver. There are just a few key areas that need to be changed or amended slightly to provide businesses with clarity and reassurances that the policy intentions are being delivered on.
Adam Hildreth: To add to that—Lulu has covered absolutely everything, and I agree—the critical bit is not monitoring individual pieces of content. Once you have done your risk assessment and put in place your systems, processes, people and technology, that is what people are signing up for. They are not signing up for this end assessment where, because you find that one piece of harmful content exists, or maybe many, you have failed to abide by what you are really signing up to.
That is the worry from my perspective: that people do a full risk assessment, implement all the systems, put in place all the people, technology and processes that they need, do the best job they can and have understood what investment they are putting in, and someone comes along and makes a report to a regulator—Ofcom, in this sense—and says, “I found this piece of content there.” That may expose weaknesses, but the very best risk assessments are ongoing ones anyway, where you do not just put it away in a filing cabinet somewhere and say, “That’s done.” The definitions of online harms and harmful content change on a daily basis, even for the biggest social media platforms; they change all the time. There was talk earlier about child sexual abuse material that appears as cartoons, which would not necessarily be defined by certain legislation as illegal. Hopefully the legislation will catch up, but that is where that risk assessment needs to be made again, and policies may need to be changed and everything else. I just hope we do not get to the point where the individual monitoring of content, or content misses, is the goal of the Bill—that the approach taken to online safety is this overall one.
Chris Philp
Q
Adam Hildreth: I had covid at the time, yes.
Chris Philp
Covid struck. I would like to ask Adam and Ian in particular about the opportunities provided by emerging and new technology to deliver the Bill’s objectives. I would like you both to give examples of where you think new tech can help deliver these safety duties. I ask you to comment particularly on what it might do on, first, age assurance—which we debated in our last session—and secondly, scanning for child sexual abuse images in an end-to-end encrypted environment. Adam, do you want to go first?
Adam Hildreth: Well, if Ian goes first, the second question would be great for him to answer, because we worked on it together.
Chris Philp
Fair enough. Ian?
Ian Stevenson: Yes, absolutely. The key thing to recognise is that there is a huge and growing cohort of companies, around the world but especially in the UK, that are working on technologies precisely to try to support those kinds of safety measures. Some of those have been supported directly by the UK Government, through the safety tech challenge fund, to explore what can be done around end-to-end encrypted messaging. I cannot speak for all the participants, but I know that many of them are members of the safety tech industry association.
Between us, we have demonstrated a number of different approaches. My own company, Cyacomb, demonstrated technology that could block known child abuse within encrypted messaging environments without compromising the privacy of users’ messages and communications. Other companies in the UK, including DragonflAI and Yoti, demonstrated solutions based on detecting nudity and looking at the ages of the people in those images, which are again hugely valuable in this space. Until we know exactly what the regulation is going to demand, we cannot say exactly what the right technology to solve it is.
However, I think that the fact that that challenge alone produced five different solutions looking at the problem from different angles shows just how vibrant the innovation ecosystem can be. My background in technology is long and mixed, but I have seen a number of sectors emerge—including cyber-security and fintech—where, once the foundations for change have been created, the ability of innovators to come up with answers to difficult questions is enormous. The capacity to do that is enormous.
There are a couple of potential barriers to that. The strength of the regulation is that it is future proof. However, until we start answering the question, “What do we need to do and when? What will platforms need to do and when will they need to do it?” we do not really create in the commercial market the innovation drivers for the technical solutions that will deliver this. We do not create the drivers for investment. It is really important to be as specific as we can about what needs to be done and when.
The other potential barrier is regulation. We have already had a comment about how there should be a prohibition of general monitoring. We have seen what has happened in the EU recently over concerns about safety technologies that are somehow looking at traffic on services. We need to be really clear that, while safety technologies must protect privacy, there needs to be a mechanism so that companies can understand when they can deploy safety technologies. At the moment there are situations where we talk to potential customers for safety technologies and they are unclear as to whether it would be proportionate to deploy those under, for example, data protection law. There are areas, even within the safety tech challenge fund work on end-to-end encrypted messaging, where it was unclear whether some of the technologies—however brilliant they were at preventing child abuse in those encrypted environments —would be deployable under current data protection and privacy of electronic communications regulations.
There are questions there. We need to make sure that when the Online Safety Bill comes through, it makes clear what is required and how it fits together with other regulations to enable that. Innovators can do almost anything if you give them time and space. They need the certainty of knowing what is required, and an environment where solutions can be deployed and delivered.
Chris Philp
Q
Adam Hildreth: I agree with Ian that the level of innovation is amazing. If we start talking about age verification and end-to-end encryptions, for me—I am going to say that same risk assessment phrase again—it absolutely depends on the type of service, who is using the service and who is exploiting the service, as to which safety technologies should be employed. I think it is dangerous to say, “We are demanding this type of technology or this specific technology to be deployed in this type of instance,” because that removes the responsibility from the people who are creating it.
Chris Philp
Q
Adam Hildreth: Absolutely. Sorry, I was saying that I agree with how it has been worded. We know what is available, but technology changes all the time and solutions change all the time—we can do things in really innovative ways. However, the risk assessment has to bring together freedom of speech versus the types at risk of abuse. Is it children who are at risk, and if so, what are they at risk from? That changes the space massively when compared with some adult gaming communities, where what is harmful to them is very different from what harms other audiences. That should dictate for them what system and technology is deployed. Once we understand what best of breed looks like for those types of companies, we should know what good is.
Chris Philp
Q
Adam Hildreth: The technology is there. It exists and it is absolutely deployable in the environments that need it. I am sure Ian would agree; we have seen it and done a lot of testing on it. The technology exists in the environments that need it.
Chris Philp
Q
Adam Hildreth: There are ways that can work. Again, it brings in freedom of expression, global businesses and some other areas, so it is more about regulation and consumer concerns about the security of data, rather than whether technological solutions are available.
The Chair
Ms Freemont, Mr Hildreth and Mr Stevenson, thank you all very much indeed. We have run out of time. As ever, if you have any further observations that you wish to make, please put them in writing and let the Committee have them; we shall welcome them. Thank you for your time this afternoon. We are very grateful to you.
Examination of Witnesses
Jared Sine, Nima Elmi and Dr Rachel O’Connell gave evidence.
The Chair
We are now going to hear from Jared Sine, who is the chief business affairs and legal officer at Match Group, and Nima Elmi, the head of public policy in Europe at Bumble, who is appearing by Zoom. Thank you for joining us. I hope you can hear us all right. Wave if you can.
Nima Elmi indicated assent.
The Chair
We also have Dr Rachel O’Connell, who is the CEO of TrustElevate. Good afternoon.
Barbara Keeley
Q
Jared Sine: Sure—thank you for the question. Business models play a pretty distinct role in the incentives of the companies. When we talk to people about Match Group and online dating, we try to point out a couple of really important things that differentiate what we do in the dating space from what many technology companies are doing in the social media space. One of those things is how we generate our revenue. The overwhelming majority of it is subscription-based, so we are focused not on time on platform or time on device, but on whether you are having a great experience, because if you are, you are going to come back and pay again, or you are going to continue your subscription with us. That is a really big differentiator, in terms of the business model and where incentives lie, because we want to make sure they have a great experience.
Secondly, we know we are helping people meet in real life. Again, if people are to have a great experience on our platforms, they are going to have to feel safe on them, so that becomes a really big focus for us.
Finally, we are more of a one-to-one platform, so people are not generally communicating to large groups, so that protects us from a lot of the other issues you see on some of these larger platforms. Ultimately, what that means is that, for our business to be successful, we really have to focus on safety. We have to make sure users come, have a good, safe experience, and we have to have tools for them to use and put in place to empower themselves so that they can be safe and have a great experience. Otherwise, they will not come back and tell their friends.
The last thing about our platforms is that ultimately, if they are successful, our users leave them because they are engaged in a relationship, get married or just decide they are done with dating all together—that happens on occasion, too. Ultimately, our goal is to make sure that people have that experience, so safety becomes a core part of what we do. Other platforms are more focused on eyeballs, advertising sales and attention—if it bleeds, it leads—but those things are just not part of the equation for us.
Barbara Keeley
Q
Jared Sine: We are very encouraged by the Bill. We think it allows for different codes of conduct or policy, as it relates to the various different types of businesses, based on the business models. That is exciting for us because we think that ultimately those things need to be taken into account. What are the drivers and the incentives in place for those businesses? Let us make sure that we have regulations in place that address those needs, based on the approaches of the businesses.
The Chair
Nima, would you like go next?
Nima Elmi: Thank you very much for inviting me along to this discussion. Building on what Jared said, currently the Bill is not very clear in terms of references to categorisations of services. It clusters together a number of very disparate platforms that have different platform designs, business models and corporate aims. Similarly to Match Group, our platform is focused much more on one-to-one communications and subscription-based business models. There is an important need for the Bill to acknowledge these different types of platforms and how they engage with users, and to ensure appropriate guidance from Ofcom on how they should be categorised, rather than clustering together a rather significant amount of companies that have very different business aims in in this space.
The Chair
Dr O’Connell, would you like to answer?
Dr Rachel O'Connell: Absolutely. I think those are really good points that you guys have raised. I would urge a little bit of caution around that though, because I think about Yellow Tinder, which was the Tinder for teens, which has been rebranded as Yubo. It transgresses: it is a social media platform; it enables livestreaming of teens to connect with each other; it is ultimately for dating. So there is a huge amount of risk. It is not a subscription-based service.
I get the industry drive to say, “Let’s differentiate and let’s have clarity”, but in a Bill, essentially the principles are supposed to be there. Then it is for the regulator, in my view, to say, at a granular level, that when you conduct a risk impact assessment, you understand whether the company has a subscription-based business model, so the risk is lower, and also if there is age checking to make sure those users are 18-plus. However, you must also consider that there are teen dating sites, which would definitely fall under the scope of this Bill and the provisions that it is trying to make to protect kids and to reduce the risk of harm.
While I think there is a need for clarity, I would urge caution. For the Bill to have some longevity, being that specific about the categorisations will have some potential unintended consequences, particularly as it relates to children and young people.
Barbara Keeley
Q
Dr Rachel O'Connell: There is a mention of age assurance in the Bill. There is an opportunity to clarify that a little further, and also to bring age verification services under the remit of the Bill, as they are serving and making sure that they are mitigating risk. There was a very clear outline by Elizabeth Denham when we were negotiating the Digital Economy Act in relation to age verification and adult content sites; she was very specific when she came to Committee and said it should be a third party conducting the checks. If you want to preserve privacy and security, it should be a third-party provider that runs the checks, rather than companies saying, “You know what? We’ll track everybody for the purposes of age verification.”
There needs to be a clear delineation, which currently in clause 50 is not very clear. I would recommend that that be looked at again and that some digital identity experts be brought into that discussion, so that there is a full appreciation. Currently, there is a lot of latitude for companies to develop their own services in-house for age verification, without, I think, a proper risk assessment of what that might mean for end users in terms of eroding their privacy.
Barbara Keeley
Q
Dr Rachel O'Connell: That means you have to track and analyse people’s activities and you are garnering a huge amount of data. If you are then handling people under the age of 13, under the Data Protection Act, you must obtain parental consent prior to processing data. By definition, you have to gather the data from parents. I have been working in this space for 25 years. I remember, in 2008, when the Attorneys General brought all the companies together to consider age verification as part of the internet safety technical task force, the arguments of industry—I was in industry at the time—were that it would be overly burdensome and a privacy risk. Looking back through history, industry has said that it does not want to do that. Now, there is an incentive to potentially do that, because you do not have to pay for a third party to do it, but what are the consequences for the erosion of privacy and so on?
I urge people to think carefully about that, in particular when it comes to children. It would require tracking children’s activities over time. We do not want our kids growing up in a surveillance society where they are being monitored like that from the get-go. The advantage of a third-party provider is that they can have a zero data model. They can run the checks without holding the data, so you are not creating a data lake. The parent or child provides information that can be hashed on the device and checked against data sources that are hashed, which means there is no knowledge. It is a zero data model.
The information resides on the user’s device, which is pretty cool. The checks are done, but there is no exposure and no potential for man-in-the-middle checks. The company then gets a token that says “This person is over 18”, or “This person is below 12. We have verified parental responsibility and that verified parent has given consent.” You are dealing with tokens that do not contain any personal information, which is a far better approach than companies developing things in-house.
Barbara Keeley
Q
The Chair
Q
Nima Elmi: Yes, I am. I have nothing to add.
Barbara Keeley
Q
Jared Sine: Sure. I would add a couple of thoughts. We run our own age verification scans, which we do through the traditional age gate but also through a number of other scans that we run.
Again, online dating platforms are a little different. We warn our users upfront that, as they are going to be meeting people in real life, there is a fine balance between safety and privacy, and we tend to lean a little more towards safety. We announce to our users that we are going to run message scans to make sure there is no inappropriate behaviour. In fact, one of the tools we have rolled out is called “Are you sure? Does this bother you?”, through which our AI looks at the message a user is planning to send and, if it is an inappropriate message, a flag will pop up that says, “Are you sure you want to send this?” Then, if they go ahead and send it, the person receiving it at the other end will get a pop-up that says, “This may not be something you want to see. Go ahead and click here if you want to.” If they open it, they then get another pop-up that asks “Does this bother you?” and, if it does, you can report the user immediately.
We think that is an important step to keep our platform safe. We make sure our users know that it is happening, so it is not under the table. However, we think there has to be a balance between safety and privacy, especially when we have users who are meeting in person. We have actually demonstrated on our platforms that this reduces harassment and behaviour that would otherwise be untoward or that you would not want on the platform.
We think that we have to be careful not to tie the hands of industry to be able to come up with technological solutions and advances that can work side by side with third-party tools and solutions. We have third-party ID verification tools that we use. If we identify or believe a user is under the age of 18, we push them through an ID verification process.
The other thing to remember, particularly as it relates to online dating, is that companies such as ours and Bumble have done the right thing by saying “18-plus only on our platforms”. There is no law that says that an online dating platform has to be 18-plus, but we think it is right thing to do. I am a father of five kids; I would not want kids on my platform. We are very vigilant in taking steps to make sure we are using the latest and greatest tools available to try to make sure that our platforms are safe.
Mrs Miller
Q
Dr Rachel O'Connell: I am the author of the technical standard PAS 1296, an age checking code of practice, which is becoming a global standard at the moment. We worked a lot with privacy and security and identity experts. It should have taken nine months, but it took a bit longer. There was a lot of thought that went into it. Those systems were developed to, as I just described, ensure a zero data, zero knowledge kind of model. What they do is enable those verifications to take place and reduce the requirement. There is a distinction between monitoring your systems, as was said earlier, for age verification purposes and abuse management. They are very different. You have to have abuse management systems. It is like saying that if you have a nightclub, you have to have bouncers. Of course you have to check things out. You need bouncers at the door. You cannot let people go into the venue, then afterwards say that you are spotting bad behaviour. You have to check at the door that they are the appropriate age to get into the venue.
Mrs Miller
Q
Dr Rachel O'Connell: I think you guys will be aware of the DCMS programme of work about the verification of children last year. As part of that, there was a piece of research that asked children what they would think about age verification. The predominant thing that came across from young children is that they are really tired of having to deal with weirdos and pervs. It is an everyday occurrence for them.
To just deviate slightly to the business model, my PhD is in forensics and tracking paedophile activity on the internet way back in the ’90s. At that time, guys would have to look for kids. Nowadays, on TikTok and various livestream platforms, the algorithms recognise that an individual—a man, for example—is very interested in looking at content produced by kids. The algorithms see that a couple of times and go, “You don’t have to look anymore. We are going to seamlessly connect you with kids who livestream. We are also going to connect you with other men that like looking at this stuff.”
If you are on these livestream sites at 3 o’clock in the morning, you can see these kids who are having sleepovers or something. They put their phone down to record whatever the latest TikTok dance is, and they think that they are broadcasting to other kids. You would assume that, but what they then hear is the little pops of love hearts coming on to the screen and guys’ voices saying, “Hey sweetie, you look really cute. Lick your lips. Spread your legs.” You know where I am going with this.
The Online Safety Bill should look at the systems and processes that underpin these platforms, because there is gamification of kids. Kids want to become influencers—maybe become really famous. They see the views counter and think, “Wow, there are 200 people looking at us.” Those people are often men, who will co-ordinate their activities at the back. They will push the boys a little bit further, and if a girl is on her own, they will see. If the child does not respond to the request, they will drop off. The kid will think, “Oh my God. Well, maybe I should do it this one time.”
What we have seen is a quadrupling of child sexual abuse material online that has been termed “self-generated”, because the individual offender hasn’t actually produced it. From a psychological perspective, it is a really bad name, but that is a separate topic. Imagine if that was your kid who had been coerced into something that had then been labelled as “self-generated”. The businesses models that underpin those processes that happen online are certainly something that should be really within scope.
We do not spend enough time thinking about the implications of the use of recommendation engines and so on. I think the idea of the VPN is a bit of a red herring. Children want safety. They do not want to have to deal with this sort of stuff online. There are other elements. If you were a child and felt that you might be a little bit fat, you could go on YouTube and see whether you could diet or something. The algorithms will pick that up also. There is a tsunami of dieting and thinspiration stuff. There is psychological harm to children as a result of the systems and processes that these companies operate.
There was research into age verification solutions and trials run with BT. Basically, the feedback from both parents and children was, “Why doesn’t this exist already?”. If you go into your native EE app where it says, “Manage my family” and put in your first name, last name and mobile number and your child’s first name, last name and date of birth, it is then verified that you are their parent. When the child goes on Instagram or TikTok, they put in their first and last name. The only additional data point is the parent’s mobile number. The parent gets a notification and they say yes or no to access.
There are solutions out there. As others have mentioned, the young people want them and the parents want them. Will people try to work around them? That can happen, but if it is a parent-initiated process or a child-initiated process, you have the means to know the age bands of the users. From a business perspective, it makes a lot of sense because you can have a granular approach to the offerings you give to each of your customers in different age bands.
Nima Elmi: Just to add to what Rachel has said, I think she has articulated extremely well the complexities of the issues around not only age verification, but business models. Ultimately, this is such a complex matter that it requires continued consultation across industry, experts and civil society to identity pragmatic recommendations for industry when it comes to not only verifying the age of their users, but thinking about the nuanced differences between platforms, purposes, functionality and business models, and what that means.
In the context of the work we do here at Bumble, we are clear about our guidelines requiring people to be 18-plus to download our products from app stores, as well as ensuring that we have robust moderation processes to identify and remove under-18s from our platforms. There is an opportunity here for the Bill to go further in providing clarity and guidance on the issue of accessibility of children to services.
Many others have said over the course of today’s evidence that there needs to be a bit more colour put into definitions, particularly when certain sections of the Bill refer to what constitutes a “significant number of users” for determining child accessibility to platforms. Coupled with the fact that age verification or assurance is a complex area in and of itself and the nuance between how social media may engage with it versus a dating or social networking platform, I think that more guidance is very much needed and a much more nuanced approach would be welcome.
The Chair
I have three Members and the Minister to get in before 5 o’clock, so I urge brief questions and answers please.
Kirsty Blackman
Q
Dr Rachel O'Connell: Yes.
Kirsty Blackman
Q
Dr Rachel O'Connell: Yes.
Kirsty Blackman
Q
Dr Rachel O'Connell: I will give an example. If you go to an amusement park, kids who are below four feet, for example, cannot get on the adult rides, so the equivalent would be that they should not be on an 18-plus dating site. The service can create it at a granular level so the kids can interact with kids in the same age group or a little bit older, but they can also interact with family. You can create circles of trust among verified people.
Kirsty Blackman
For a game like Roblox, which is aimed at kids—it is a kids platform—if you had the age verification and if that worked, you could have a situation where a 13-year-old on Roblox could only interact with children who are between 12 and 14. Does the technology exist to make that work?
Dr Rachel O'Connell: You could do. Then if you were using it in esports or there was a competition, you could broaden it out. The service can set the parameters, and you can involve the parents in making decisions around what age bands their child can play with. Also, kids are really into esports and that is their future, so there are different circumstances and contexts that the technology could enable.
Kirsty Blackman
Q
Dr Rachel O'Connell: There is a history of parental controls, and only 36% of parents use them. Ofcom research consistently says that it is 70%, but in reality, it is lower. When using age verification, the parents are removing the ability to watch everything. It is a platform; they are providing the digital playground. In the same way, when you go on swings and slides, there is bouncy tarmac because you know the kids are going to use them. It is like creating that health and safety environment in a digital playground.
When parents receive a notification that their child wants to access something, there could be a colour-coded nutrition-style thing for social media, livestreaming and so on, and the parents could make an informed choice. It is then up to the platform to maintain that digital playground and run those kinds of detection systems to see if there are any bad actors in there. That is better than parental controls because the parent is consenting and it is the responsibility of the platform to create the safer environment. It is not the responsibility of the parent to look over the child’s shoulder 24/7 when they are online.
Kim Leadbeater
Q
Jared Sine: I do not know the specific provisions but I am familiar with the general concept of them. Any time you put something in law, it can either be criminalised or have enforcement behind it, and I think that helps. Ultimately, it will be up to the platforms to come up with innovative technologies or systems such as “Are You Sure?” and “Does This Bother You?” which say that although the law says x, we are going to go beyond that to find tools and systems that make it happen on our platform. Although I think it is clearly a benefit to have those types of provisions in law, it will really come down to the platforms taking those extra steps in the future. We work with our own advisory council, which includes the founder of the #MeToo movement, REIGN and others, who advise us on how to make platforms safer for those things. That is where the real bread gets buttered, so to speak.
Kim Leadbeater
Q
Jared Sine: We are proactive about it, and I know our colleagues and friends over at Bumble are proactive about it as well. Our heads of trust and safety both came from the same company—Uber—before coming to us, so I know that they compare notes quite regularly. Because of the way the legislation is set up, there can be codes of conduct applying specifically to online dating, and to the extent that that technology exists, you need to deploy it.
The Chair
Shall we ask our friends at Bumble if they would like to come in?
Nima Elmi: It is a great question. There are three points that I want to address, and I will try to be brief. First, Bumble is very much a uniquely female-founded and female-led tech company that adopts a safety-by-design ethos. It is baked within our DNA. The majority of our board are women, and they are public figures who, unfortunately, have to some extent experienced online harms targeting women.
We believe it is incredibly important that the Bill acknowledges that women are disproportionately impacted by online harms. Some studies have found that women are 27 times more likely than men to suffer online harassment and online harms. Currently, the Bill does not acknowledge or reference gender or women at all, so a lot more can be done, and we have submitted some recommendations.
Not every company in our industry or across the tech sector is female-founded and female-led, and they prioritise the harms that they want to tackle on their platforms very differently—that is important. Our systems-based approach, which bakes in safety-by-design principles, puts women at the centre of how our products are designed and used. We deploy corrective action and safety tools to make sure that our female members feel not only safe but empowered on our platforms. When it comes to managing risk, it is central to us to ensure that women feel safe on our products and services. We are here advocating for the fact that it should not just be our products that are safe for women—it should be the internet as a whole. In our view, the Bill does not currently go far enough to make sure that that happens.
We welcome the inclusion of the miscommunication offences in clauses 150 to 155 and also welcome the offence of cyber-flashing, the inclusion of which we have been advocating for publicly for several months. However, in both instances, and particularly with cyber-flashing, the Bill does not go far enough in acknowledging that it is an offence, as Professor McGlynn has highlighted, that should be grounded on consent rather than the motivation of the perpetrator.
Essentially, there are a number of inclusions that are a step in the right direction, but we would welcome significant changes to the Bill, predominantly through including a safety duty for women, to ensure that all platforms are consistent in their approach and prioritise how their female users engage with their services, so that they feel protected, and to ensure that determining those features is not predicated on the composition of the board or who the founder is.
The Chair
Right. For once, we seem to have run out of questions. Minister, do you wish to contribute?
Chris Philp
Everything I was going to ask has already been asked by my colleagues, so I will not duplicate that.
The Chair
Q
Jared Sine: I would just make one brief comment. I think it has been mentioned by everyone here. Everyone has a role to play. Clearly, the Government have a role in proposing and pushing forward the legislation. The platforms that have the content have an obligation and a responsibility to try to make sure that their users are safe. One of the things that Dr O’Connell mentioned is age verification and trying to make sure that we keep young kids off platforms where they should not be.
I think there is a big role to play for the big tech platforms—the Apples and Googles—who distribute our apps. Over the years, we have said again and again to both of those companies, “We have age-gated our apps at 18, yet you will allow a user you know is 15, 14, 16—whatever it is—to download that app. That person has entered that information and yet you still allow that app to be downloaded.” We have begged and pleaded with them to stop and they will not stop. I am not sure that that can be included in the Bill, but if it could be, it would be powerful.
If Apple and Google could not distribute any of our apps—Hinge, Match, Tinder—to anyone under the age of 18, that solves it right there. It is the same methodology that has been used at clubs with bouncers—you have a bouncer at the door who makes sure you are 21 before you go in and have a drink. It should be the same thing with these technology platforms. If they are going to distribute and have these app stores, the store should then have rules that show age-gated apps—“This is for 17-plus or 18-plus”—and should also enforce that. It is very unfortunate that our calls on this front have gone unanswered. If the Bill could be modified to include that, it would really help to address the issue.
Dr Rachel O'Connell: Absolutely. I 100% support that. There is a tendency for people to say, “It is very complex. We need a huge amount of further consultation.” I started my PhD in 1996. This stuff has been going on for all that time. In 2008, there was a huge push by the Attorneys General, which I mentioned already, which brought all of the industry together. That was 2008. We are in 2022 now. 2017 was the Internet Safety Strategy Green Paper. We know what the risks are. They are known; we understand what they are. We understand the systems and processes that facilitate them. We understand what needs to be done to mitigate those risks and harms. Let’s keep on the track that we are going on.
Regarding industry’s concerns, a lot of them will be ironed out when companies are required to conduct risk assessments and impact assessments. They might ask, what are the age bands of your users? What are the risks associated with the product features that you are making available? What are the behaviour modification techniques that you are using, like endless scroll and loot boxes that get kids completely addicted? Are those appropriate for those ages? Then you surface the decision making within the business that results in harms and also the mitigations.
I urge you to keep going on this; do not be deterred from it. Keep the timeframe within which it comes into law fairly tight, because there are children out there who are suffering. As for the harassment—I have experienced it myself, it is horrible.
Those would be my final words.
The Chair
Thank you. Finally, Nima Elmi, please.
Nima Elmi: Thank you again for your time. I want to re-emphasise a couple of points, since we have a few minutes.
First, on the point around gendered harms, I think it is important for the Committee to really think about whether this is an opportunity to make reference in the Bill to acknowledge that women are experiencing online harms at a significantly higher rate than men. That is meant to futureproof the Bill, as new forms of online harms are, unfortunately, usually felt by women first. I know that Maria Miller, for example, has been doing extensive work around the issue of AI nudification tools, which, in the current framing of the Bill, would not be captured.
We would certainly urge that there is a greater focus in the Bill on gendered harms, whether that is through a specific safety duty, acknowledgement as a category within risk assessment, a designated code of practice—which I know Clare McGlynn, Refuge and EVAW have also advocated for—or acknowledgement of gender-based violence in transparency reporting.
Right now, the nature of moderation of technology platforms is very much grounded in the prioritisation of issues based on the leadership and usage of certain platforms, and this is an opportunity for the Government and Parliament to provide a standard setting that ensures consistency across the board while acknowledging the nuanced differences between the platforms and their business models, and their end goals. I would really like to emphasise that point.
The second point I want to emphasise, on cyber-flashing in particular, is the fact that we have an opportunity to bake in what should be societal standards that we want to hold people accountable to, both offline and online. Offences captured by the Bill that do not create a threshold where you will see prosecutions and a change in behaviour—for example, in the current formulation of the cyber-flashing offence, which is grounded in the perpetrator’s motivation rather than in consent—will have little impact in changing the hearts and minds of individuals and stopping that behaviour, because the threshold will be so high.
We would definitely encourage the Committee to reflect on the pragmatic ways in which the Bill can be refined. In particular, I want to emphasise that it will be important to acknowledge that online harms are sadly very much experienced by women—both emerging forms and existing forms of harms. I welcome this opportunity to share this feedback with the Committee.
The Chair
Ms Elmi, Dr O’Connell and Mr Sine, thank you all very much indeed; the Committee is indebted to you. Thank you so much.
Examination of Witnesses
Rhiannon-Faye McDonald and Susie Hargreaves OBE gave evidence.
The Chair
We will now hear from Rhiannon-Faye McDonald, victim and survivor advocate at the Marie Collins Foundation, and Susie Hargreaves, chief executive at the Internet Watch Foundation. Thank you for joining us this afternoon; first question, please.
Alex Davies-Jones
Q
Susie Hargreaves: Thank you very much for inviting me today. I think the Bill is working in the right direction. Obviously, the area that we at the IWF are concerned with is child sexual abuse online, and from our point of view, the Bill does need to make a few changes in order to put those full protections in place for children.
In particular, we have drafted an amendment to put co-designation on the face of the Bill. When it comes to child sexual abuse, we do not think that contracting out is an acceptable approach, because we are talking about the most egregious form of illegal material—we are talking about children—and we need to ensure that Ofcom is not just working in a collaborative way, but is working with experts in the field. What is really important for us at the moment is that there is nothing in the Bill to ensure that the good work that has been happening over 25 years in this country, where the IWF is held up as a world leader, is recognised, and that that expertise is assured on the face of the Bill. We would like to see that amendment in particular adopted, because the Bill needs to ensure that there are systems and processes in place for dealing with illegal material. The IWF already works with internet companies to ensure they take technical services.
There needs to be a strong integration with law enforcement—again, that is already in place with the memorandum of understanding between CPS, the National Police Chiefs’ Council and the IWF. We also need clarity about the relationship with Ofcom so that child sexual abuse, which is such a terrible situation and such a terrible crime, is not just pushed into the big pot with other harms. We would like to see those specific changes.
Rhiannon-Faye McDonald: Generally, we think the Bill is providing a higher standard of care for children, but there is one thing in particular that I would like to raise. Like the IWF, the Marie Collins Foundation specialises in child sexual abuse online, specifically the recovery of people who have been affected by child sexual abuse.
The concern I would like to raise is around the contextual CSA issue. I know this has been raised before, and I am aware that the Obscene Publications Act 1959 has been brought into the list of priority offences. I am concerned that that might not cover all contextual elements of child sexual abuse: for example, where images are carefully edited and uploaded to evade content moderation, or where there are networks of offenders who are able to gain new members, share information with each other, and lead other people to third-party sites where illegal content is held. Those things might not necessarily be caught by the illegal content provisions; I understand that they will be dealt with through the “legal but harmful” measures.
My concern is that the “legal but harmful” measures do not need to be implemented by every company, only those that are likely to be accessed by children. There are companies that can legitimately say that the majority of their user base is not children, and therefore would not have to deal with that, but that provides a space for this contextual CSA to happen. While those platforms may not be accessed by children as much as other platforms, it still provides a place for this to happen—the harm can still occur, even if children do not come across it as much as they would elsewhere.
Alex Davies-Jones
Q
Susie Hargreaves: We certainly support the concept of a risk-based approach. We host very little child sexual abuse content in the UK, with the majority of the content we see being hosted on smaller platforms in the Netherlands and other countries. It is really important that we take a risk-based approach, which might be in relation to where the content is—obviously, we are dealing with illegal content—or in relation to where children are. Having a balance there is really important.
Alex Davies-Jones
Q
Susie Hargreaves: I think we probably have a slightly different line from that of some of the other charities you heard from this morning, because we think it is very tricky and nuanced. What we are trying to do at the moment is define what it actually means and how we would have to deal with it, and we are working very closely with the Home Office to go through some of those quite intense discussions. At the moment, “harmful” versus “illegal” is not clearly defined in law, and it could potentially overwhelm certain organisations if we focus on the higher-level harms and the illegal material. We think anything that protects children is essential and needs to be in the Bill, but we need to have those conversations and to do some more work on what that means in reality. We are more interested in the discussions at the moment about the nuance of the issue, which needs to be mapped out properly.
One of the things that we are very keen on in the Bill as a whole is that there should be a principles-based approach, because we are dealing with new harms all the time. For example, until 2012 we had not seen self-generated content, which now accounts for 75% of the content we remove. So we need constantly to change and adapt to new threats as they come online, and we should not make the Bill too prescriptive.
The Chair
Ms McDonald?
Rhiannon-Faye McDonald: I was just thinking of what I could add to what Susie has said. My understanding is that it is difficult to deal with cross-platform abuse because of the ability to share information between different platforms—for example, where a platform has identified an issue or offender and not shared that information with other platforms on which someone may continue the abuse. I am not an expert in tech and cannot present you with a solution to that, but I feel that sharing intelligence would be an important part of the solution.
Mrs Miller
Q
Susie Hargreaves: We are very clear that end-to-end encryption should be within scope, as you have heard from other speakers today. Obviously, the huge threat on the horizon is the end-to-end encryption on Messenger, which would result in the loss of millions of images of child sexual abuse. In common with previous speakers, we believe that the technology is there. We need not to demonise end-to-end encryption, which in itself is not bad; what we need to do is ensure that children do not suffer as a consequence. We must have mitigations and safety mechanisms in place so that we do not lose these child sexual abuse images, because that means that we will not be able to find and support those children.
Alongside all the child protection charities, we are looking to ensure that protections equivalent to the current ones are in place in the future. We do not accept that the internet industry cannot put them in place. We know from experts such as Dr Hany Farid, who created PhotoDNA, that those mechanisms and protections exist, and we need to ensure that they are put in place so that children do not suffer as a consequence of the introduction of end-to-end encryption. Rhiannon has her own experiences as a survivor, so I am sure she would agree with that.
Rhiannon-Faye McDonald: I absolutely would. I feel very strongly about this issue, which has been concerning me for quite some time. I do not want to share too much, but I am a victim of online grooming and child sex abuse. There were images and videos involved, and I do not know where they are and who has seen them. I will never know that. I will never have any control over it. It is horrifying. Even though my abuse happened 19 years ago, I still walk down the street wondering whether somebody has seen those images and recognises me from them. It has a lifelong impact on the child, and it impacts on recovery. I feel very strongly that if end-to-end encryption is implemented on platforms, there must be safeguards in place to ensure we can continue to find and remove these images, because I know how important that is to the subject of those images.
Mrs Miller
Q
Susie Hargreaves: We just want to make sure that the ability to scan in an end-to-end encrypted environment is included in the Bill in some way.
Kirsty Blackman
Q
Susie Hargreaves: I think with technology you can never stand still. We do not know what is coming down the line. We have to deal with the here and now, but we also need to be prepared to deal with whatever comes down the line. The answer, “Okay, we will just get people to report,” is not a good enough replacement for the ability to scan for images.
When the privacy directive was introduced in Europe and Facebook stopped scanning for a short period, we lost millions of images. What we know is that we must continue to have those safety mechanisms in place. We need to work collectively to do that, because it is not acceptable to lose millions of images of child sexual abuse and create a forum where people can safely share them without any repercussions, as Rhiannon says. One survivor we talked to in this space said that one of her images had been recirculated 70,000 times. The ability to have a hash of a unique image, go out and find those duplicates and make sure they are removed means that people are not re-victimised on a daily basis. That is essential.
Kirsty Blackman
Q
Rhiannon-Faye McDonald: There is one specific point that I would like to raise about this. I am concerned about private communications. We know that many offenders identify and target children on more open platforms, and then very quickly move them to more private platforms to continue the grooming and abuse. We were very pleased to see that private communications were brought in scope. However, there is a difficulty in the code of practice. When that is drafted, Ofcom is not going to be able to require proactive tools to be used to identify. That includes things like PhotoDNA and image and text-based classifiers.
So although we have tools that we can use currently, which can identify conversations where grooming is happening, we are not going to be using those immediately on private platforms, on private communications where the majority of grooming is going to happen. That means there will be a delay while Ofcom establishes that there is a significant problem with grooming on the platform, and then issues are noticed to require those tools to be used.
Kirsty Blackman
Q
Susie Hargreaves: An awful lot of work has already gone into this over the past few years. We have been working closely with Departments on the draft code of practice. We think that, as it stands, it is in pretty good shape. We need to work more closely with Ofcom as those codes are developed—us and other experts in the field. Again, it needs to be very much not too directing, in the sense that we do not want to limit people, and to be available for when technology changes in the future. It is looking in the right shape, but of course we will all be part of the consultation and of the development of those practices as they go. It requires people to scan their networks, to check for child sexual abuse and—I guess for the first time, the main thing—to report on it. It is going to be a regulated thing. In itself, that is a huge development, which we very much welcome.
Kirsty Blackman
Q
Rhiannon-Faye McDonald: It is very difficult. While I am strongly about protecting children from encountering perpetrators, I also recognise that children need to have freedoms and the ability to use the internet in the ways that they like. I think if that was implemented and it was 100% certain that no adult could pose as a 13-year-old and therefore interact with actual 13-year-olds, that would help, but I think it is tricky.
Susie Hargreaves: One of the things we need to be clear about, particularly where we see children groomed —we are seeing younger and younger children—is that we will not ever sort this just with technology; the education piece is huge. We are now seeing children as young as three in self-generated content, and we are seeing children in bedrooms and domestic settings being tricked, coerced and encouraged into engaging in very serious sexual activities, often using pornographic language. Actually, a whole education piece needs to happen. We can put filters and different technology in place, but remember that the IWF acts after the event—by the time we see this, the crime has been committed, the image has been shared and the child has already been abused. We need to bump up the education side, because parents, carers, teachers and children themselves have to be able to understand the dangers of being online and be supported to build their resilience online. They are definitely not to be blamed for things that happen online. From Rhiannon’s own story, how quickly it can happen, and how vulnerable children are at the moment—I don’t know.
Rhiannon-Faye McDonald: For those of you who don’t know, it happened very quickly to me, within the space of 24 hours, from the start of the conversation to the perpetrator coming to my bedroom and sexually assaulting me. I have heard other instances where it has happened much more quickly than that. It can escalate extremely quickly.
Just to add to Susie’s point about education, I strongly believe that education plays a huge part in this. However, we must be very careful in how we educate children, so that the focus is not on how to keep themselves safe, because puts the responsibility on them, which in turn increases the feelings of responsibility when things do go wrong. That increased feeling of responsibility makes it less likely that they will disclose that something has happened to them, because they feel that they will be blamed. It will decrease the chance that children will tell us that something has happened.
Barbara Keeley
Q
Susie Hargreaves: We already work with the internet industry. They currently take our services and we work closely with them on things such as engineering support. They also pay for our hotline, which is how we find child sexual abuse. However, the difference it would make is that we hope then to be able to undertake work where we are directly working with them to understand the level of their reports and data within their organisations.
At the moment, we do not receive that information from them. It is very much that we work on behalf of the public and they take our services. However, if we were suddenly able to work directly with them—have information about the scale of the issue within their own organisations and work more directly on that— then that would help to feed into our work. It is a very iterative process; we are constantly developing the technology to deal with the current threats.
It would also help us by giving us more intelligence and by allowing us to share that information, on an aggregated basis, more widely. It would certainly also help us to understand that they are definitely tackling the problem. We do believe that they are tackling the problem, because it is not in their business interests not to, but it just gives a level of accountability and transparency that does not exist at the moment.
Barbara Keeley
Q
Susie Hargreaves: At the moment, there is nothing on the face of the Bill on co-designation. We do think that child sexual abuse is different from other types of harm, and when you think about the huge number of harms, and the scale and complexity of the Bill, Ofcom has so much to work with.
We have been working with Ofcom for the past year to look at exactly what exactly our role would be. However, because we are the country’s experts on dealing with child sexual abuse material, because we have the relationships with the companies, and because we are an internationally renowned organisation, we are able to have that trusted relationship and then undertake a number of functions for Ofcom. We could help to undertake specific investigations, help update the code, or provide that interface between Ofcom and the companies where we undertake that work on their behalf.
We very much feel that we should be doing that. It is not about being self-serving, but about recognising the track record of the organisation and the fact that the relationships and technology are in place. We are already experts in this area, so we are able to work directly with those companies because we already work with them and they trust us. Basically, we have a memorandum of understanding with the CPS and the National Police Chiefs’ Council that protects our staff from prosecution but the companies all work with us on a voluntary basis. They already work with us, they trust our data, and we have that unique relationship with them.
We are able to provide that service to take the pressure off Ofcom because we are the experts in the field. We would like that clarified because we want this to be right for children from day one—you cannot get it wrong when dealing with child sexual abuse. We must not undo or undermine the work that has happened over the last 25 years.
Barbara Keeley
Q
Susie Hargreaves: There is uncertainty, because we do not know exactly what our relationship with Ofcom is going to be. We are having discussions and getting on very well, but we do not know anything about what the relationship will be or what the criteria and timetable for the relationship are. We have been working on this for nearly five years. We have analysts who work every single day looking at child sexual abuse; we have 70 members of staff, and about half of them look at child sexual abuse every day. They are dealing with some of the worse material imaginable, they are already in a highly stressful situation and they have clear welfare needs; uncertainty does not help. What we are looking for is certainty and clarity that child sexual abuse is so important that it is included on the face of the Bill, and that should include co-designation.
Kim Leadbeater
Q
Rhiannon-Faye McDonald: It is incredibly important that we have this education piece. Like Susie said, we cannot rely on technology or any single part of this to solve child sexual abuse, and we cannot rely on the police to arrest their way out of the problem. Education really is the key. That is education in all areas—educating the child in an appropriate way and educating parents. We hold parenting workshops. Parents are terrified; they do not know what to do, what platforms are doing what, or what to do when things go wrong. They do not even know how to talk to children about the issue; it is embarrassing for them and they cannot bring it up. Educating parents is a huge thing. Companies have a big responsibility there. They should have key strategies in place on how they are going to improve education.
Chris Philp
Q
I would like to pick up on a point that has arisen in the discussion so far—the point that Susie raised about the risks posed by Meta introducing end-to-end encryption, particularly on the Facebook Messenger service. You have referenced the fact that huge numbers of child sexual exploitation images are identified by scanning those communications, leading to the arrests of thousands of paedophiles each year. You also referenced the fact that when this was temporarily turned off in Europe owing to the privacy laws there—briefly, thankfully—there was a huge loss of information. We will come on to the Bill in a minute, but as technology stands now, if Meta did proceed with end-to-end encryption, would that scanning ability be lost?
Susie Hargreaves: Yes. It would not affect the Internet Watch Foundation, but it would affect the National Centre for Missing and Exploited Children. Facebook, as a US company, has a responsibility to do mandatory reporting to NCMEC, which will be brought in with the Bill in this country. Those millions of images would be lost, as of today, if they brought end-to-end encryption in now.
Chris Philp
Q
Susie Hargreaves: Because they are scanning Facebook—sorry, I am just trying to unpack the way it works. It will affect us, actually. Basically, when we provide our hash list to Facebook, it uses that to scan Messenger, but the actual images that are found—the matches—are not reported to us; they are reported into NCMEC. Facebook does take our hash list. For those of you who do not know about hashing, it is a list of digital fingerprints—unique images of child sexual abuse. We currently have about 1.3 million unique images of child sexual abuse. Facebook does use our hash list, so yes it does affect us, because it would still take our hash list to use on other platforms, but it would not use it on Messenger. The actual matches would go into NCMEC. We do not know how many matches it gets against our hash list, because it goes into NCMEC.
Chris Philp
Q
Susie Hargreaves: Yes, sorry—I was unclear about that. Yes, it would on Messenger.
Chris Philp
Q
Susie Hargreaves: As I said before, it is essential that we do not demonise end-to-end encryption. It is really important. There are lots of reasons why, from a security and privacy point of view, people want to be able to use end-to-end encryption.
In terms of whether the technology is there, we all know that there are things on the horizon. As Ian said in the previous session, the technology is there and is about to be tried out. I cannot give any update at this meeting, but in terms of what we would do if end-to-end encryption is introduced and there is no ability to scan, we could look at on-device scanning, which I believe you mentioned before, Minister.
Chris Philp
Yes.
Susie Hargreaves: That is an option. That could be a backstop position. I think that, at the moment, we should stand our ground on this and say, “No, we need to ensure that we have some form of scanning in place if end-to-end encryption is introduced.”
Chris Philp
Q
Susie Hargreaves: I agree 100%.
The Chair
Thank you very much indeed, Ms McDonald and Ms Hargreaves. We are most grateful to you; thank you for your help.
Examination of Witnesses
Ellen Judson and Kyle Taylor gave evidence.
The Chair
Finally this afternoon, we will hear from Ellen Judson, who is the lead researcher at the Centre for the Analysis of Social Media at Demos, and Kyle Taylor, who is the founder and director of Fair Vote. Thank you for joining us this afternoon.
Alex Davies-Jones
Q
There is a wide exemption in the Bill for the media and for journalistic content. Are you concerned that that is open to abuse?
Kyle Taylor: Oh, absolutely. There are aspects of the Bill that are extremely worrying from an online safety perspective: the media exemption, the speech of democratic importance exemption, and the fact that a majority of paid ads are out of scope. We know that a majority of harmful content originates from or is amplified by entities that meet one of those exceptions. What that means is that the objective of the Bill, which is to make the online world safer, might not actually be possible, because platforms, at least at present, are able to take some actions around these through their current terms and conditions, but this will say explicitly that they cannot act.
One real-world example is the white supremacist terror attack just last week in Buffalo, in the United States. The “great replacement” theory that inspired the terrorist was pushed by Tucker Carlson of Fox News, who would meet the media exemption; by right-wing blogs, which were set up by people who claim to be journalists and so would meet the journalistic standards exemption; by the third-ranking House Republican, who would meet the democratic importance exemption; and it was even run as paid ads by those candidates. In that one example, you would not be able to capture a majority of the way that harm spreads online.
Alex Davies-Jones
Q
Ellen Judson: I think there are several options. The primary option, as we would see it, is that the exemptions are removed altogether, on the basis that if the Bill is really promoting a systems-based approach rather than focusing on individual small categories of content, then platforms should be required to address their systems and processes whenever those lead to an increased risk of harm. If that leads to demotion of media content that meets those harmful thresholds, that would seem appropriate within that response.
If the exemptions are not to be removed, they could be improved. Certainly, with regard to the media exemption specifically, I think the thresholds for who qualifies as a recognised news publisher could be raised to make it more difficult for bad actors and extremists, as Kyle mentioned, simply to set up a website, add a complaints policy, have an editorial code of conduct and then say that they are a news publisher. That could involve linking to existing publishers that are already registered with existing regulators, but I think there are various ways that could be strengthened.
On the democratic importance and journalism exemptions, I think the issue is that the definitions are very broad and vague; they could easily be interpreted in any way. Either they could be interpreted very narrowly, in which case they might not have much of an impact on how platforms treat freedom of expression, as I think they were intended to do; or they could be interpreted very broadly, and then anyone who thinks or who can claim to think that their content is democratically important or journalistic, even if it is clearly abusive and breaches the platform’s terms and conditions, would be able to claim that.
One option put forward by the Joint Committee is to introduce a public interest exemption, so that platforms would have to think about how they are treating content that is in the public interest. That would at least remove some of the concerns. The easiest way for platforms to interpret what is democratically important speech and what is journalistic speech is based on who the user is: are they a politician or political candidate, or are they a journalist? That risks them privileging certain people’s forms of speech over that of everyday users, even if that speech is in fact politically relevant. I think that having something that moves the threshold further away from focusing on who a user is as a proxy for whether their speech is likely to deserve extra protection would be a good start.
Kyle Taylor: It is basically just saying that content can somehow become less harmful depending on who says it. A systems-based approach is user-neutral, so its only metric is: does this potentially cause harm at scale? It does not matter who is saying it; it is simply a harm-based approach and a system solution. If you have exemptions, exceptions and exclusions, a system will not function. It suggests that a normal punter with six followers saying that the election was stolen is somehow more harmful than the President of the United States saying that an election is stolen. That is just the reality of how online systems work and how privileged and powerful users are more likely to cause harm.
Alex Davies-Jones
Q
Ellen Judson: There is certainly an issue as that is often where we see a lot of abuse and harm, such that if that same content were replicated on a social media platform, it would almost certainly be within the scope of the Bill. There is a question, which is for Ofcom to consider in its risk profiles and risk registers, about where content at scale has the potential to cause the most harm. The reach of a small news outlet’s comments section would be much less than the reach of Donald Trump’s Twitter account, for instance. Certainly, if the risk assessments are done and comments sections of news websites have similar reach and scale and could cause significant harm, I think it would be reasonable for the regulator to consider that.
Kyle Taylor: It is also that they are publicly available. I can speak from personal experience. Just last week, there was a piece about me. The comments section simultaneously said that I should be at Nuremberg 2.0 because I was a Nazi, but also that I should be in a gas chamber. Hate perpetuates in a comments section just as it does on a social media platform. The idea that it is somehow less harmful because it is here and not there is inconsistent and incoherent with the regime where the clue is in the name: the Online Safety Bill. We are trying to make the online world safer.
On media I would add that we have to think about how easy it is, based on the criteria in the Bill, to become exempt as a media entity. We can think about that domestically, but what happens when a company is only meant to enforce their terms and conditions in that country, but can broadcast to the world? The UK could become the world’s disinformation laundromat because you can come here, meet the media exemption and then blast content to other places in the world. I do not think that is something that we are hoping to achieve through this Bill. We want to be the safest place in the world to go online and to set a global benchmark for what good regulation looks like.
Alex Davies-Jones
Q
Ellen Judson: I think it is a real challenge with the media exemptions, because it is a recognised tactic of state-based actors, state-aligned actors and non-state actors to use media platforms as ways to disseminate this information. If you can make a big enough story out of something, it gets into the media and that perpetuates the campaign of abuse, harassment and disinformation. If there are protections in place, it will not take disinformation actors very long to work out that if there are ways that they can get stories into the press, they are effectively covered.
In terms of platform enforceability, if platforms are asked to, for instance, look at their systems of amplification and what metrics they use to recommend or promote content to users, and to do that from a risk-based perspective and based on harm except when they are talking about media, it all becomes a bit fuzzy what a platform would actually be expected to do in terms of curating those sorts of content.
Kyle Taylor: As an example, Russia Today, until its broadcast licence was revoked about three months ago, would have qualified for the media exemption. Disinformation from Russia Today is not new; it has been spreading disinformation for years and years, and would have qualified for the media exemption until very recently.
Alex Davies-Jones
Q
Kyle Taylor: The Bill as it stands could absolutely make the internet less safe than it currently is.
Kirsty Blackman
Q
Ellen Judson: The focus at the moment is too heavily on content. There is a sort of tacit equation of content removal—sometimes content deprioritisation, but primarily content removal—as the way to protect users from harm, and as the threat to freedom of expression. That is where the tension comes in with how to manage both those things at once. What we would want from a Bill that was taking more of a systems approach is thinking: where are platforms making decisions about how they are designing their services, and how they are operating their services at all levels? Content moderation policy is certainly included, but it goes back to questions of how a recommendation algorithm is designed and trained, who is involved in that process, and how human moderators are trained and supported. It is also about what functionality users are given and what behaviour is incentivised and encouraged. There is a lot of mitigation that platforms can put in place that does not talk about directly affecting user content.
I think we should have risk assessments that focus on the risks of harms to users, as opposed to the risk of users encountering harmful content. Obviously there is a relationship, but one piece of content may have very different effects when it is encountered by different users. It may cause a lot of harm to one user, whereas it may not cause a lot of harm to another. We know that when certain kinds of content are scaled and amplified, and certain kinds of behaviour are encouraged or incentivised, we see harms at a scale that the Bill is trying to tackle. That is a concern for us. We want more of a focus on some things that are mentioned in the Bill—business models, platform algorithms, platform designs and systems and processes. They often take a backseat to the issues of content identification and removal.
Kyle Taylor: I will use the algorithm as an example, because this word flies around a lot when we talk about social media. An algorithm is a calculation that is learning from people’s behaviour. If society is racist, an algorithm will be racist. If society is white, an algorithm will be white. You can train an algorithm to do different things, but you have to remember that these companies are for-profit businesses that sell ad space. The only thing they are optimising for in an algorithm is engagement.
What we can do, as Ellen said, through a system is force optimisation around certain things, or drive algorithms away from certain types of content, but again, an algorithm is user-neutral. An algorithm does not care what user is saying what; it is just “What are people clicking on?”, regardless of what it is or who said it. An approach to safety has to follow the same methodology and say, “We are user-neutral. We are focused entirely on propensity to cause harm.”
The second piece is all the mitigation measures you can take once a post is up. There has been a real binary of “Leave it up” and “Take it down”, but there is a whole range of stuff—the most common word used is “friction”—to talk about what you can do with content once it is in the system. You have to say to yourself, “Okay, we absolutely must have free speech protections that exceed the platform’s current policies, because they are not implemented equally.” At the same time, you can preserve someone’s free expression by demonetising content to reduce the incentive of the company to push that content or user through its system. That is a way of achieving both a reduction in harm and the preservation of free expression.
The Chair
Briefly, because there are two other Members and the Minister wishing to ask questions.
Kirsty Blackman
Q
Ellen Judson: I think there are a lot of things that companies could be doing. Some of these things are in research that they probably are conducting. As we have seen from the Facebook files, companies are conducting that sort of research, but we aren’t privy to the results. I think there a couple of things we want to see. First, we want companies to have to be more transparent about what kind of testing they have done, or, if not testing, about who they have consulted when designing these products. Are they consulting human rights experts? Are they consulting people who are affected by identity-based harm, or are they just consulting their shareholders? Even that would be a step in the right direction, and that is why it is really important.
We feel that there need to be stronger provisions in the Bill for independent researcher and civil society access to data. Companies will be able to do certain amounts of things, and regulators will have certain powers to investigate and do their own research, but it requires the added efforts of civil society properly to hold companies to account for the effects of certain changes they have made—and also to help them in identifying what the effects of those changes to design have been. I think that is really crucial.
The Chair
We are playing “Beat the clock”. I am going to ask for brief answers and brief questions, please. I will take one question from Kim Leadbeater and one from Barbara Keeley.
Kim Leadbeater
Q
Ellen Judson: There is absolutely a risk of over-moderation, and of the Bill incentivising over-moderation, particularly because of the very heavy content focus. Even with illegal content, there is a very broad range of content that companies are expected proactively to monitor for, even when the technical systems to identify that content reliably at scale are perhaps not in place. I absolutely understand and share the concern about over-moderation.
Our response would be that we should look to strengthen the freedom of expression duties currently in the Bill. At the moment, there is a quite vague duty to have regard to the importance of freedom of expression, but it is not at all clear what that would actually mean, and what would be expected from the platforms. One change we would want would be for rights—including freedom of expression and privacy—to be included in the online safety objectives, and to establish that part of the purpose of this regime is to ensure that services are being designed to protect and promote human rights, including freedom of expression. We think that would be a way to bring freedom of expression much more into the centre of the regime and the focus of the Bill, without having to have those add-on exemptions after the fact.
Kyle Taylor: And it creates a level playing field—it says, “These rules apply to everyone equally.”
On the second point, authoritarian—absolutely—but the other area that is really important is fragile democracies. For example, if you look at Hungary, just last week Viktor Orbán said, “You know what you need? Your own media.” If we are setting a standard that says it is totally fine to exempt people in politics and media, then for those fragile democracies that control most aspects of information sharing, we are explicitly saying that it is okay to privilege them over others. That is a very dangerous precedent to set when we have the opportunity to set best global standards here with the Bill.
Barbara Keeley
Q
Ellen Judson: At the moment, no. The rights that are discussed in the Bill at the minute are quite limited: primarily, it is about freedom of expression and privacy, and the way that protections around privacy have been drafted is less strong than for those around freedom of expression. Picking up on the question about setting precedents, if we have a Bill that is likely to lead to more content moderation and things like age verification and user identity verification, and if we do not have strong protections for privacy and anonymity online, we are absolutely setting a bad precedent. We would want to see much more integration with existing human rights legislation in the Bill.
Kyle Taylor: All I would add is that if you look at the exception for content of democratic importance, and the idea of “active political issue”, right now, conversion therapy for trans people—that has been described by UN experts as torture—is an active political issue. Currently, the human rights of trans people are effectively set aside because we are actively debating their lives. That is another example of how minority and marginalised people can be negatively impacted by this Bill if it is not more human rights-centred.
Chris Philp
Q
Ellen Judson: I accept that that is what the Bill currently says. Our point was thinking about how it will be implemented in practice. If platforms are expected to prove to a regulator that they are taking certain steps to protect content of democratic importance—in the explanatory notes, that is content related to Government policy and political parties—and they are expected to prove that they are taking a special consideration of journalistic content, the most straightforward way for them to do that will be in relation to journalists and politicians. Given that it is such a broad category and definition, that seems to be the most likely effect of the regime.
Kyle Taylor: It is potentially—
Chris Philp
Q
Is it not true that a member of the public or anyone debating a legitimate political topic would also benefit from these measures? It is likely that MPs would automatically benefit—near automatically—but a member of the public might equally benefit if the topic they are talking about is of democratic or journalistic importance.
Ellen Judson: Our concern is that defining what is a legitimate political debate is itself already privileging. As you said, an MP is very likely automatically to benefit.
Chris Philp
Well, it is likely; I would not say it is guaranteed.
Ellen Judson: A member of the public may be discussing something—for example, an active political debate that is not about the United Kingdom, which I believe would be out of scope of that protection. They would be engaged in political discussion and exercising freedom of expression, and if they were not doing so in a way that met the threshold for action based on harm, their speech should also come under those protections.
Kyle Taylor: I would add that the way in which you have described it would be so broad as to effectively be meaningless in the context of the Bill, and that instead we should be looking for universal free expression protections in that part of the Bill, and removing this provision. Because what is not, in a liberal democracy, speech of democratic importance? Really, that is everything. When does it reach the threshold where it is an active political debate? Is it when enough people speak about it or enough politicians bring it up? It is so subjective and so broad effectively to mean that everything could qualify. Again, this is not taking a harms-based approach to online safety, because the question is not “Who is saying it?” or “In what context?”; the question is, “Does this have the propensity to cause harm at scale?”
Chris Philp
Q
Kyle Taylor: Can I respond to that?
Chris Philp
Yes, sure.
Kyle Taylor: My point is that if there is a provision in the Bill about freedom of expression, it should be robust enough that this protection does not have to be in the Bill. To me, this is saying, “Actually, our free expression bit isn’t strong enough, so we’re going to reiterate it here in a very specific context, using very select language”. That may mean that platforms decide not to act for fear of reprisal, as opposed to pursuing online safety. I suggest strengthening the freedom of expression section so that it hits all the points that the Government intend to hit, and removing those qualifiers that create loopholes and uncertainty for a regime that, if it is systems-based, does not have loopholes.
Chris Philp
Q
Ellen Judson: We absolutely recognise that. There is discussion in terms of meeting certain standards of responsible journalism in relation to those protections. Our concern is very much that the people and actors who would most benefit from the journalistic protections specifically would be people who do not meet those standards and cannot prove that they meet those standards, because the standards are very broad. If you intend your content to be journalistic, you are in scope, and that could apply to extremists as much as to people meeting standards of responsible journalism.
Chris Philp
Q
Kyle Taylor: Remove the exemption.
Chris Philp
Q
Kyle Taylor: Well, I am struggling to understand how we can look at the Bill and say, “If this entity says it, it is somehow less harmful than if this entity says it.” That is a two-tiered system and that will not lead to online safety, especially when those entities that are being given privilege are the most likely and largest sources and amplifiers of harmful content online. We sit on the frontlines of this every day, looking at social media, and we can point to countless examples from around the world that will show that, with these exemptions, exceptions and exclusions, you will actually empower those actors, because you explicitly say that they are special. You explicitly say that if they cause harm, it is somehow not as bad as if a normal user with six followers on Twitter causes harm. That is the inconsistency and incoherency in the Bill.
Chris Philp
We are talking here about the press, not about politicians—
Kyle Taylor: Yes, but the press and media entities spread a lot of disinformation—
Chris Philp
Q
Kyle Taylor: Except that that is inconsistent in the Bill, because you are saying that for broadcast, they must have a licence, but for print press, they do not have to subscribe to an independent standards authority or code. Even within the media, there is this inconsistency within the Bill.
Chris Philp
That is a point that applies regardless of the Bill. The fact is that UK broadcast is regulated whereas UK newspapers are not regulated, and that has been the case for half a century. You can debate whether that is right or wrong, but—
Kyle Taylor: We are accepting that newspapers are not regulated then.
Chris Philp
Q
Kyle Taylor: I am not suggesting that the freedom of the press is not sacrosanct. Actually, I am expressing the opposite, which is that I believe that it is so sacrosanct that it should be essential to the freedom-of-expression portion of the Bill, and that the press should be set to a standard that meets international human rights and journalistic standards. I want to be really clear that I absolutely believe in freedom of the press, and it is really important that we don’t leave here suggesting that we don’t think that the press should be free—
Chris Philp
Q
Ellen Judson: To the media exemption—
Chris Philp
To clause 50, “Recognised news publisher”.
Ellen Judson: One of the changes that the Government have indicated that they are minded to make—please correct me if I misunderstood—is to introduce a right to appeal.
Chris Philp
Correct.
Ellen Judson: Content having to stay online while the appeal was taking place I would very much urge not to be introduced, on the grounds that the content staying online might then be found to be incredibly harmful, and by the time you have got through an appeals process, it will already have done the damage it was going to do. So, if there is a right to appeal—I would urge there not to be a particular right to appeal beyond what is already in the Bill, but if that is to be included, not having the restriction that the platforms must carry the content while the appeal process is ongoing would be important.
Kyle Taylor: You could require an independent standards code as a benchmark at least.
The Chair
Order. I am afraid that brings us to the end of the time allotted for the Committee to ask questions. It also brings us to the end of the day’s sitting. On behalf of the Committee, I thank the witnesses for your evidence. As you ran out of time and the opportunity to frame answers, if you want to put them in writing and offer them to the Minister, I am sure they will be most welcome. The Committee will meet again on Thursday at 11.30 am in this room to hear further evidence on the Bill.
Ordered, That further consideration be now adjourned. —(Steve Double.)
Online Safety Bill (Third sitting)
Thursday 26th May 2022
(3 years, 7 months ago)
Public Bill CommitteesOnline Safety Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 May 2022 - (26 May 2022)
The Chair
We are now sitting in public and the proceedings are being broadcast. I understand that the Government wish to move a motion to amend the programme order agreed by the Committee on Tuesday. The Football Association is unable to attend and, following the technical difficulties on Tuesday, we will replace it with Barnardo’s.
Ordered,
That the Order of the Committee of 24 May 2022 be amended, in paragraph (2), in the Table, in the entry for Thursday 26 May until no later than 2.55 pm, leaving out “The Football Association” and inserting “Barnardo’s”.—(Chris Philp.)
The Chair
Before we hear oral evidence, I invite Members to declare any interests in connection with the Bill.
Alex Davies-Jones (Pontypridd) (Lab)
I need to declare an interest, Ms Rees. Danny Stone from the Antisemitism Policy Trust provides informal secretariat in a personal capacity to the all-party parliamentary group on wrestling, which I co-chair.
The Chair
That is noted. Thank you.
Examination of Witnesses
Mat Ilic, William Moy, Professor Lorna Woods MBE and William Perrin OBE gave evidence.
The Chair
We will now hear oral evidence from Mat Ilic, chief development officer at Catch22; William May, chief executive at Full Fact; and Professor Lorna Woods and William Perrin of the Carnegie UK Trust. Before calling the first Member, I remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme order that the Committee agreed. For this session, we have until 12.15 pm. I call Alex Davies- Jones to begin the questioning.
Alex Davies-Jones
Q
William Perrin: At Carnegie, we saw this problem coming some time ago, and we worked in the other place with Lord McNally on a private Member’s Bill —the Online Harms Reduction Regulator (Report) Bill—that, had it carried, would have required Ofcom to make a report on a wide range of risks and harms, to inform and fill in the gaps that you have described.
Mrs Maria Miller (Basingstoke) (Con)
On a point of order, Ms Rees. There is a gentleman taking photographs in the Gallery.
The Chair
There is no photography allowed here.
William Perrin: Unfortunately, that Bill did not pass and the Government did not quite take the hint that it might be good to do some prep work with Ofcom to provide some early analysis to fill in holes in a framework Bill. The Government have also chosen in the framework not to bring forward draft statutory instruments or to give indications of their thinking in a number of key areas of the Bill, particularly priority harms to adults and the two different types of harms to children. That creates uncertainty for companies and for victims, and it makes the Bill rather hard to scrutinise.
I thought it was promising that the Government brought forward a list of priority offences in schedule 7 —I think that is where it is; I get these things mixed up, despite spending hours reading the thing. That was helpful to some extent, but the burden is on the Government to reduce complexity by filling in some of the blanks. It may well be better to table an amendment to bring some of these things into new schedules, as we at Carnegie have suggested—a schedule 7A for priority harms to adults, perhaps, and a 7B and 7C for children and so on—and then start to fill in some of the blanks in the regime, particularly to reassure victims.
Alex Davies-Jones
Thank you. Does anybody else want to comment?
William Moy: There is also a point of principle about whether these decisions should be made by Government later or through open, democratic, transparent decision making in Parliament.
Alex Davies-Jones
Q
William Moy: Sure. I should point out—we will need to get to this later—the fact that the Bill is not seriously trying to address misinformation and disinformation at this point, but in that context, we all know that there will be another information incident that will have a major effect on the public. We have lived through the pandemic, when information quality has been a matter of life and death; we are living through information warfare in the context of Ukraine, and more will come. The only response to that in the Bill is in clause 146, which gives the Secretary of State power to direct Ofcom to use relatively weak media literacy duties to respond.
We think that in an open society there should be an open mechanism for responding to information incidents—outbreaks of misinformation and disinformation that affect people’s lives. That should be set out in the roles of the regulator, the Government and internet companies, so that there is a framework that the public understand and that is open, democratic and transparent in declaring a misinformation and disinformation incident, creating proportionate responses to it, and monitoring the effects of those responses and how the incident is managed. At the moment, it largely happens behind closed doors and it involves a huge amount of restricting what people can see and share online. That is not a healthy approach in an open society.
William Perrin: I should add that as recently as April this year, the Government signed up to a recommendation of the Council of Ministers of the Council of Europe on principles for media and communication governance, which said that
“media and communication governance should be independent and impartial to avoid undue influence…discriminatory treatment and preferential treatment of powerful groups, including those with significant political or economic power.”
That is great. That is what the UK has done for 50 to 60 years in media regulation, where there are very few powers for the Secretary of State or even Parliament to get involved in the day-to-day working of communications regulators. Similarly, we have had independent regulation of cinema by the industry since 1913 and regulation of advertising independent of Government, and those systems have worked extremely well. However, this regime—which, I stress, Carnegie supports—goes a little too far in introducing a range of powers for the Secretary of State to interfere with Ofcom’s day-to-day doing of its business.
Clause 40 is particularly egregious, in that it gives the Secretary of State powers of direction over Ofcom’s codes of practice and, very strangely, introduces an almost infinite ability for the Government to keep rejecting Ofcom’s advice—presumably, until they are happy with the advice they get. That is a little odd, because Ofcom has a long track record as an independent, evidence-based regulator, and as Ofcom hinted in a terribly polite way when it gave evidence to this Committee, some of these powers may go a little too far. Similarly, in clause 147, the Secretary of State can give tactical guidance to Ofcom on its exercise of its powers. Ofcom may ignore that advice, but it is against convention that the Secretary of State can give that advice at all. The Secretary of State should be able to give strategic guidance to Ofcom roughly one or one and a half times per Parliament to indicate its priorities. That is absolutely fine, and is in accordance with convention in western Europe and most democracies, but the ability to give detailed guidance is rather odd.
Then, as Mr Moy has mentioned, clause 146, “Directions in special circumstances”, is a very unusual power. The Secretary of State can direct Ofcom to direct companies to make notices about things and can direct particular companies to do things without a particularly high threshold. There just have to be “reasonable grounds to believe”. There is no urgency threshold, nor is there a strong national security threshold in there, or anyone from whom the Secretary of State has to take advice in forming that judgment. That is something that we think can easily be amended down.
Alex Davies-Jones
Q
William Moy: Absolutely. It is an extraordinary decision in a context where we are just coming through the pandemic, where information quality was such a universal concern, and we are in an information war, with the heightened risk of attempts to interfere in future elections and other misinformation and disinformation risks. It is also extraordinary because of the Minister’s excellent and thoughtful Times article, in which he pointed out that at the moment, tech companies censor legal social media posts at vast scale, and this Bill does nothing to stop that. In fact, the Government have actively asked internet companies to do that censorship—it has told them to do so. I see the Minister looking surprised, so let me quote from BBC News on 5 April 2020:
“The culture secretary is to order social media companies to be more aggressive in their response to conspiracy theories linking 5G networks to the coronavirus pandemic.”
In that meeting, essentially, the internet companies were asked to make sure they were taking down that kind of content from their services. Now, in the context of a Bill where, I think, the Minister and I completely agree about our goal—tackling misinformation in an open society—there is an opportunity for this Bill to be an example to the free world of how open societies respond to misinformation, and a beacon for the authoritarian world as well.
This is the way to do that. First, set out that the Bill must cover misinformation and disinformation. We cannot leave it to internet companies, with their political incentives, their commercial convenience and their censoring instincts, to do what they like. The Bill must cover misinformation and set out an open society response to it. Secondly, we must recognise that the open society response is about empowering people. The draft Bill had a recognition that we need to modernise the media literacy framework, but we do not have that in this Bill, which is really regrettable. It would be a relatively easy improvement to create a modern, harms and safety-based media literacy framework in this Bill, empowering users to make their own decisions with good information.
Then, the Bill would need to deal with three main threats to freedom of expression that threaten the good information in our landscape. Full Fact as a charity exists to promote informed and improved public debate, and in the long run we do that by protecting freedom of expression. Those three main threats are artificial intelligence, the internet companies and our own Government, and there are three responses to them. First, we must recognise that the artificial intelligence that internet companies use is highly error-prone, and it is a safety-critical technology. Content moderation affects what we can all see and share; it affects our democracy, it affects our health, and it is safety-critical. In every other safety-critical industry, that kind of technology would be subject to independent third-party open testing. Cars are crashed against walls, water samples are taken and tested, even sofas are sat on thousands of times to check they are safe, but internet companies are subject to no third-party independent open scrutiny. The Bill must change that, and the crash test dummy test is the one I would urge Members to apply.
The second big threat, as I said, is the internet companies themselves, which too often reach for content restrictions rather than free speech-based and information-based interventions. There are lots of things you can do to tackle misinformation in a content-neutral way—creating friction in sharing, asking people to read a post before they share it—or you can tackle misinformation by giving people information, rather than restricting what they can do; fact-checking is an example of that. The Bill should say that we prefer content-neutral and free speech-based interventions to tackle misinformation to content-restricting ones. At the moment the Bill does not touch that, and thus leaves the existing system of censorship, which the Minister has warned about, in place. That is a real risk to our open society.
The final risk to freedom of expression, and therefore to tackling misinformation, are the Government themselves. I have just read you an example of a Government bringing in internet companies to order them around by designating their terms and conditions and saying certain content is unacceptable. That content then starts to get automatically filtered out, and people are stopped from seeing it and sharing it online. That is a real risk. Apart from the fact that they press released it, that is happening behind closed doors. Is that acceptable in an open democratic society, or do we think there should be a legal framework governing when Governments can seek to put pressure on internet companies to affect what we can all see and share? I think that should be governed by a clear legislative framework that sets out if those functions need to exist, what they are and what their parameters are. That is just what we would expect for any similarly sensitive function that Government carry out.
Mrs Miller
Q
Mat Ilic: Thank you so much. The impact of social media in children’s lives has been a feature of our work since 2015, if not earlier; we have certainly researched it from that period. We found that it was a catalyst to serious youth violence and other harms. Increasingly, we are seeing it as a primary issue in lots of the child exploitation and missing cases that we deal with—in fact, in half of the cases we have seen in some of the areas that we work in it featured as the primary reason rather than as a coincidental reason. The online harm is the starting point rather than a conduit.
In relation to the legislation, all our public statements on this have been informed by user research. I would say that is one of the central principles to think through in the primary legislation—a safety-by-design focus. We have previously called this the toy car principle, which means any content or product that is designed with children in mind needs to be tested in a way that is explicitly for children, as Mr Moy talked about. It needs to have some age-specific frameworks built in, but we also need to go further than that by thinking about how we might raise the floor, rather than necessarily trying to tackle explicit harms. Our point is that we need to remain focused on online safety for children and the drivers of online harm and not the content.
The question is, how can that be done? One way is the legal design requirement for safety, and how that might play out, as opposed to having guiding principles that companies might adopt. Another way is greater transparency on how companies make particular decisions, and that includes creating or taking off content that pertains to children. I want to underline the point about empowerment for children who have been exposed to or experience harm online, or offline as a result of online harm. That includes some kind of recourse to be able to bring forward cases where complaints, or other issues, were not taken seriously by the platforms.
If you read the terms and conditions of any given technology platform, which lots of young people do not do on signing up—I am sure lots of adults do not do that either—you realise that even with the current non-legislative frameworks that the companies deploy to self-regulate, there is not enough enforcement in the process. For example, if I experience some kind of abuse and complain, it might never be properly addressed. We would really chime on the enforcement of the regulatory environment; we would try to raise the floor rather than chase specific threats and harms with the legislation.
Mrs Miller
Q
Professor Lorna Woods: I think by an overarching risk assessment rather than one that is broken down into the different types of content, because that, in a way, assumes a certain knowledge of the type of content before you can do a risk assessment, so you are into a certain circular mode there. Rather than prejudging types of content, I think it would be more helpful to look at what is there and what the system is doing. Then we could look at what a proportionate response would be—looking, as people have said, at the design and the features. Rather than waiting for content to be created and then trying to deal with it, we could look at more friction at an earlier stage.
If I may add a technical point, I think there is a gap relating to search engines. The draft Bill excluded paid-for content advertising. It seems that, for user-to-user content, this is now in the Bill, bringing it more into line with the current standards for children under the video-sharing platform provisions. That does not apply to search. Search engines have duties only in relation to search content, and search content excludes advertising. That means, as I read it, that search engines would have absolutely no duties to children under their children safety duty in relation to advertising content. You could, for example, target a child with pornography and it would fall outside the regime. I think that is a bit of a gap.
Kim Leadbeater (Batley and Spen) (Lab)
Q
William Moy: No, no, yes. First, no, it is not fair to put that all on the platforms, particularly because—I think this a crucial thing for the Committee across the Bill as a whole—for anything to be done at internet scale, it has to be able to be done by dumb robots. Whatever the internet companies tell you about the abilities of their technology, it is not magic, and it is highly error-prone. For this duty to be meaningful, it has to be essentially exercised in machine learning. That is really important to bear in mind. Therefore, being clear about what it is going to tackle in a way that can be operationalised is important.
To your second point, it is really important in this day and age to question whether journalistic content and journalists equate to one another. I think this has come up in a previous session. Nowadays, journalism, or what we used to think of as journalism, is done by all kinds of people. That includes the same function of scrutiny and informing others and so on. It is that function that we care about—the passing of information between people in a democracy. We need to protect that public interest function. I think it is really important to get at that. I am sure there are better ways of protecting the public interest in this Bill by targeted protections or specifically protecting freedom of expression in specific ways, rather than these very broad, vague and general duties.
Kim Leadbeater
Q
William Moy: No.
William Perrin: At Carnegie, in our earliest work on this in 2018, we were very clear that this Bill should not be a route to regulating the press and media beyond what the social settlement was. Many people are grumpy about that settlement, and many people are happy with it, but it is a classic system intention. We welcome the Government’s attempt to carve journalism out one way or another, but there is still a great problem in defining journalists and journalism.
I think some of the issues around news provider organisations do give a sense in the Bill of a heavy-duty organisation, not some fly-by-night thing that has been set up to evade the rules. As Will was pointing out, the issue then comes down to individual journalists, who are applying their trade in new ways that the new media allows them to do. I remember many years ago, when I ran a media business, having a surreal meeting at DCMS during Leveson, where I had to explain to them what a blogger was. Sadly, we have not quite yet got that precision of how one achieves the intended effect around, in particular, individual journalists.
Professor Lorna Woods: I emphasise what Mr Moy said about the fact that this is going to have to be a system. It is not a decision on every individual item of content, and it is not about a decision on individual speakers. It is going to be about how the characteristics that we care about—the function of journalism—are recognised in an automated systems.
On the drafting of the Bill, I wonder whether there is any overlap between the user-generated content and citizen journalism in clause 16 and the recognition in clause 15 of user-generated content in relation to democratic speech. I am not sure whether one is not a subset of the other.
Kim Leadbeater
Q
Professor Lorna Woods: I have to confess that I have not really looked at them in great detail, although I have read them. I do not think they work, but I have not got to a solution because that is actually quite a difficult thing to define.
William Moy: I should declare an interest in clause 15 and the news publisher content exemption, because Full Fact would be covered by that exemption. I do not welcome that; I find it very awkward that we could be fact-checking things and some of the people we are fact-checking would not be covered by the exemption.
It is regrettable that we are asking for those exemptions in the Bill. The Bill should protect freedom of expression for everyone. Given the political reality of that clause, it does not do the job that it tries to do. The reason why is essentially because you can set yourself up to pass the test in that clause very easily. The Minister asked about that in a previous session and recognised that there is probably room to tighten the drafting, and I am very happy to work with his officials and talk about how, if that is Parliament’s political intention, we can do it in as practical a way as possible.
Kim Leadbeater
Q
William Perrin: The Bill is a risk-management regime. As part of a risk-management regime, one should routinely identify people who are at high risk and high-risk events, where they intersect and how you assess and mitigate that risk. As someone who was a civil servant for 15 years and has worked in public policy since, I hugely respect the functioning of the election process. At the very extreme end, we have seen hideous events occur in recent years, but there is also the routine abuse of politicians and, to some extent, an attempt to terrorise women politicians off certain platforms, which has been quite grotesque.
I feel that there is a space, within the spirit of the Bill as a risk-management regime, to draw out the particular risks faced by people who participate in elections. They are not just candidates and office holders, as you say, but the staff who administer elections—we saw the terrible abuse heaped on them in recent American elections; let us hope that that does not come across here—and possibly even journalists, who do the difficult job of reporting on elections, which is a fundamental part of democracy.
The best way to address those issues might be to require Ofcom to produce a straightforward code of practice—particularly for large, category 1 platforms—so that platforms regard elections and the people who take part in them as high-risk events and high-harm individuals, and take appropriate steps. One appropriate step would be to do a forward look at what the risks might be and when they might arise. Every year, the BBC produces an elections forward look to help it manage the particular risks of public service broadcasting around elections. Could a platform be asked to produce and publish an elections forward look, discussing with people who take part in elections their experience of the risks that they face and how best to mitigate them in a risk-management regime? That could also involve the National Police Chiefs’ Council, which already produces guidance at each election.
We are sitting here having this discussion in a highly fortified, bomb-proof building surrounded by heavily armed police. I do not think any member of the public would begrudge Members of Parliament and the people who come here that sort of protection. We sometimes hear the argument that MPs should not be recognised as special or get special protection. I do not buy that; no one begrudges the security here. It is a simple step to ask platforms to do a risk assessment that involves potential victims of harm, and to publish it and have a dialogue with those who take part, to ensure that the platforms are safe places for democratic discussion.
Kim Leadbeater
Q
William Perrin: The Government have, to their credit, introduced in this Bill offences of sending messages with the intent to harm, but it will take many years for them to work their way through CPS guidance and to establish a body of case law so that it is understood how they are applied. Of course, these cases are heard in magistrates courts, so they do not get reported very well.
One of the reasons we are here discussing this is that the criminal law has failed to provide adequate measures of public protection across social media. If the criminal law and the operation of the police and the CPS worked, we would not need to have this discussion. This discussion is about a civil regulatory regime to make up for the inadequacies in the working of the criminal law, and about making it work a little smoother. We see that in many areas of regulated activity. I would rather get a quicker start by doing some risk assessment and risk mitigation before, in many years’ time, one gets to an effective operational criminal offence. I note that the Government suggested such an offence a few years ago, but I am not quite clear where it got to.
William Moy: To echo Ms Leadbeater’s call for a holistic approach to this, treating as criminal some of the abuse that MPs receive is entirely appropriate. The cost to all of us of women and people of colour being deterred from public life is real and serious. There is also the point that the Bill deals only with personal harms, and a lot of the risk to elections is risk to the democratic system as a whole. You are absolutely right to highlight that that is a gap in what the Bill is doing. We think, certainly from a misinformation point of view, that you cannot adequately address the predictable misinformation and disinformation campaigns around elections simply by focusing on personal harm.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)
Q
William Moy: Essentially, the tests are such that almost anyone could pass them. Without opening the Bill, you have to have a standards code, which you can make up for yourself, a registered office in the UK and so on. It is not very difficult for a deliberate disinformation actor to pass the set of tests in clause 50 as they currently stand.
Chris Philp
Q
William Moy: This would need a discussion. I have not come here with a draft amendment—frankly, that is the Government’s job. There are two areas of policy thinking over the last 10 years that provide the right seeds and the right material to go into. One is the line of thinking that has been done about public benefit journalism, which has been taken up in the House of Lords Communications and Digital Committee inquiry and the Cairncross review, and is now reflected in recent Charity Commission decisions. Part of Full Fact’s charitable remit is as a publisher of public interest journalism, which is a relatively new innovation, reflecting the Cairncross review. If you take that line of thinking, there might be some useful criteria in there that could be reflected in this clause.
I hate to mention the L-word in this context, but the other line of thinking is the criteria developed in the context of the Leveson inquiry for what makes a sensible level of self-regulation for a media organisation. Although I recognise that that is a past thing, there are still useful criteria in that line of thinking, which would be worth thinking about in this context. As I said, I would be happy to sit down, as a publisher of journalism, with your officials and industry representatives to work out a viable way of achieving your political objectives as effectively as possible.
William Perrin: Such a definition, of course, must satisfy those who are in the industry, so I would say that these definitions need to be firmly industry-led, not simply by the big beasts—for whom we are grateful, every day, for their incredibly incisive journalism—but by this whole spectrum of new types of news providers that are emerging. I have mentioned my experience many years ago of explaining what a blog was to DCMS.
The news industry is changing massively. I should declare an interest: I was involved in some of the work on public-benefit journalism in another capacity. We have national broadcasters, national newspapers, local papers, local broadcasters, local bloggers and local Twitter feeds, all of which form a new and exciting news media ecosystem, and this code needs to work for all of them. I suppose that you would need a very deep-dive exercise with those practitioners to ensure that they fit within this code, so that you achieve your policy objective.
Chris Philp
Q
We heard some commentary earlier—I think from Mr Moy—about the need to address misinformation, particularly in the context of a serious situation such as the recent pandemic. I think you were saying that there was a meeting, in March or April 2020, for the then Secretary of State and social media firms to discuss the issue and what steps they might take to deal with it. You said that it was a private meeting and that it should perhaps have happened more transparently.
Do you accept that the powers conferred in clause 146, as drafted, do, in fact, address that issue? They give the Secretary of State powers, in emergency situations—a public health situation or a national security situation, as set out in clause 146(1)—to address precisely that issue of misinformation in an emergency context. Under that clause, it would happen in a way that was statutory, open and transparent. In that context, is it not a very welcome clause?
William Moy: I am sorry to disappoint you, Minister, but no, I do not accept that. The clause basically attaches to Ofcom’s fairly weak media literacy duties, which, as we have already discussed, need to be modernised and made harms-based and safety-based.
However, more to the point, the point that I was trying to make is that we have normalised a level of censorship that was unimaginable in previous generations. A significant part of the pandemic response was, essentially, some of the main information platforms in all of our day-to-day lives taking down content in vast numbers and restricting what we can all see and share. We have started to treat that as a normal part of our lives, and, as someone who believes that the best way to inform debate in an open society is freedom of expression, which I know you believe, too, Minister, I am deeply concerned that we have normalised that. In fact, you referred to it in your Times article.
I think that the Bill needs to step in and prevent that kind of overreach, as well as the triggering of unneeded reactions. In the pandemic, the political pressure was all on taking down harmful health content; there was no countervailing pressure to ensure that the systems did not overreach. We therefore found ridiculous examples, such as police posts warning of fraud around covid being taken down by the internet companies’ automated systems because those systems were set to, essentially, not worry about overreach.
That is why we are saying that we need, in the Bill, a modern, open-society approach to misinformation. That starts with it recognising misinformation in the first place. That is vital, of course. It should then go on to create a modern, harms-based media literacy framework, and to prefer content-neutral and free-speech-based interventions over content-restricting interventions. That was not what was happening during the pandemic, and it is not what will happen by default. It takes Parliament to step in and get away from this habitual, content-restriction reaction and push us into an open-society-based response to misinformation.
William Perrin: Can I just add that it does not say “emergency”? It does not say that at all. It says “reasonable grounds” that “present a threat”—not a big threat—under “special circumstances”. We do not know what any of that means, frankly. With this clause, I get the intent—that it is important for national security, at times, to send messages—but this has not been done in the history of public communication before. If we go back through 50 or 60 years, even 70 years, of Government communication, the Government have bought adverts and put messages transparently in place. Apart from D-notices, the Government have never sought to interfere in the operations of media companies in quite the way that is set out here.
If this clause is to stand, it certainly needs a much higher threshold before the Secretary of State can act—such as who they are receiving advice from. Are they receiving advice from directors of public health, from the National Police Chiefs’ Council or from the national security threat assessment machinery? I should declare an interest; I worked in there a long time ago. It needs a higher threshold and greater clarity, but you could dispense with this by writing to Ofcom and saying, “Ofcom, you should have regard to these ‘special circumstances’. Why don’t you take actions that you might see fit to address them?”
Many circumstances, such as health or safety, are national security issues anyway if they reach a high enough level for intervention, so just boil it all down to national security and be done with it.
Professor Lorna Woods: If I may add something about the treatment of misinformation more generally, I suspect that if it is included in the regime, or if some subset such as health misinformation is included in the regime, it will be under the heading of “harmful to adults”. I am picking up on the point that Mr Moy made that the sorts of interventions will be more about friction and looking at how disinformation is incentivised and spread at an earlier stage, rather than reactive takedown.
Unfortunately, the measures that the Bill currently envisages for “harmful but legal” seem to focus more on the end point of the distribution chain. We are talking about taking down content and restricting access. Clause 13(4) gives the list of measures that a company could employ in relation to priority content harmful to adults.
I suppose that you could say, “Companies are free to take a wider range of actions”, but my question then is this: where does it leave Ofcom, if it is trying to assess compliance with a safety duty, if a company is doing something that is not envisaged by the Act? For example, taking bot networks offline, if that is thought a key factor in the spreading of disinformation—I see that Mr Moy is nodding. A rational response might be, “Let’s get rid of bot networks”, but that, as I read it, does not seem to be envisaged by clause 13(4).
I think that is an example of a more general problem. With “harmful but legal”, we would want to see less emphasis on takedown and more emphasis on friction, but the measures listed as envisaged do not go that far up the chain.
The Chair
Minister, we have just got a couple of minutes left, so perhaps this should be your last question.
Chris Philp
Q
“(b) restricting users’ access to the content;
(c) limiting the recommendation or promotion of the content;
(d) recommending or promoting the content.”
I would suggest that those actions are pretty wide, as drafted.
One of the witnesses—I think it was Mr Moy—talked about what were essentially content-agnostic measures to impede virality, and used the word “friction”. Can you elaborate a little bit on what you mean by that in practical terms?
William Moy: Yes, I will give a couple of quick examples. WhatsApp put a forwarding limit on WhatsApp messages during the pandemic. We knew that WhatsApp was a vector through which misinformation could spread, because forwarding is so easy. They restricted it to, I think, six forwards, and then you were not able to forward the message again. That is an example of friction. Twitter has a note whereby if you go to retweet something but you have not clicked on the link, it says, “Do you want to read the article before you share this?” You can still share it, but it creates that moment of pause for people to make a more informed decision.
Chris Philp
Q
William Moy: But that is not what I am suggesting you do. I am suggesting you say that this Parliament prefers interventions that are content-neutral or free speech-based, and that inform users and help them make up their own minds, to interventions that restrict what people can see and share.
Chris Philp
Q
William Moy: I do not think it is any more challenging than most of the risk assessments, codes of practice and so on, but I am willing to spend as many hours as it takes to talk through it with you.
The Chair
Order. I am afraid that we have come to the end of our allotted time for questions. On behalf of the Committee, I thank the witnesses for all their evidence.
Examination of Witnesses
Danny Stone MBE, Stephen Kinsella OBE and Liron Velleman gave evidence.
The Chair
We will now hear from Danny Stone, chief executive of the Antisemitism Policy Trust; Stephen Kinsella, founder of Clean up the Internet; and Liron Velleman, political organiser at HOPE not hate. We have until 1 pm for this panel.
Alex Davies-Jones
Q
Danny Stone: First, thank you for having me today. We have made various representations about the problems that we think there are with small, high-harm platforms. The Bill creates various categories, and the toughest risk mitigation is on the larger services. They are defined by their size and functionality. Of course, if I am determined to create a platform that will spread harm, I may look at the size threshold that is set and make a platform that falls just below it, in order to spread harm.
It is probably important to set out what this looks like. The Community Security Trust, which is an excellent organisation that researches antisemitism and produces incident figures, released a report called “Hate Fuel” in June 2020. It looked at the various small platforms and highlighted that, in the wake of the Pittsburgh antisemitic murders, there had been 26 threads, I think, with explicit calls for Jews to be killed. One month prior to that, in May 2020, a man called Payton Gendron found footage of the Christchurch attacks. Among this was legal but harmful content, which included the “great replacement” theory, GIFs and memes, and he went on a two-year journey of incitement. A week or so ago, he targeted and killed 10 people in Buffalo. One of the things that he posted was:
“Every Time I think maybe I shouldn’t commit to an attack I spend 5 min of /pol/”—
which is a thread on the small 4chan platform—
“then my motivation returns”.
That is the kind of material that we are seeing: legal but harmful material that is inspiring people to go out and create real-world harm. At the moment, the small platforms do not have that additional regulatory burden. These are public-facing message boards, and this is freely available content that is promoted to users. The risks of engaging with such content are highest. There is no real obligation, and there are no consequences. It is the most available extremism, and it is the least regulated in respect of the Bill. I know that Members have raised this issue and the Minister has indicated that the Government are looking at it, but I would urge that something is done to ensure that it is properly captured in the Bill, because the consequences are too high if it is not.
Alex Davies-Jones
Q
Danny Stone: I think there are various options. Either you go for a risk-based approach—categorisation—or you could potentially amend it so that it is not just size and functionality. You would take into account other things—for example, characteristics are already defined in the Bill, and that might be an option for doing it.
Alex Davies-Jones
Q
Liron Velleman: From the perspective of HOPE not hate, most of our work targeting and looking at far-right groups is spent on some of those smaller platforms. I think that the original intention of the Bill, when it was first written, may have been a more sensible way of looking at the social media ecospace: larger platforms could host some of this content, while other platforms were just functionally not ready to host large, international far-right groups. That has changed radically, especially during the pandemic.
Now, there are so many smaller platforms—whether small means hundreds of thousands, tens of thousands or even smaller than that—that are almost as easy to use as some of the larger platforms we all know so well. Some of the content on those smaller platforms is definitely the most extreme. There are mechanisms utilised by the far-right—not just in the UK, but around the world—to move that content and move people from some of the larger platforms, where they can recruit, on to the smaller platforms. To have a situation in which that harmful content is not looked at as stringently as content on the larger platforms is a miscategorisation of the internet.
Alex Davies-Jones
Q
Liron Velleman: We have seen this similarly with the proscription of far-right terrorist groups in other legislation. It was originally quite easy to say that, eventually, the Government would proscribe National Action as a far-right terror group. What has happened since is that aliases and very similar organisations are set up, and it then takes months or sometimes years for the Government to be able to proscribe those organisations. We have to spend our time making the case as to why those groups should be banned.
We can foresee a similar circumstance here. We turn around and say, “Here is BitChute” or hundreds of other platforms that should be banned. We spend six months saying to the Government that it needs to be banned. Eventually, it is, but then almost immediately an offshoot starts. We think that Ofcom should have delegated power to make sure that it is able to bring those platforms into category 1 almost immediately, if the categorisations stay as they are.
Danny Stone: It could serve a notice and ensure that platforms prepare for that. There will, understandably, be a number of small platforms that are wary and do not want to be brought into that category, but some of them will need to be brought in because of the risk of harm. Let us be clear: a lot of this content may well—probably will—stay on the platform, but, at the very least, they will be forced to risk assess for it. They will be forced to apply their terms and conditions consistently. It is a step better than what they will be doing without it. Serving a notice to try to bring them into that regime as quickly as possible and ensure that they are preparing measures to comply with category 1 obligations would be helpful.
Alex Davies-Jones
Q
Danny Stone: Very much so. You heard earlier about the problems with advertising. I recognise that search services are not the same as user-to-user services, so there does need to be some different thinking. However, at present, they are not required to address legal harms, and the harms are there.
I appeared before the Joint Committee on the draft Bill and talked about Microsoft Bing, which, in its search bar, was prompting people with “Jews are” and then a rude word. You look at “Gays are”, today, and it is prompting people with “Gays are using windmills to waft homosexual mists into your home”. That is from the search bar. The first return is a harmful article. Do the same in Google, for what it’s worth, and you get “10 anti-gay myths debunked.” They have seen this stuff. I have talked to them about it. They are not doing the work to try to address it.
Last night, using Amazon Alexa, I searched “Is George Soros evil?” and the response, was “Yes, he is. According to an Alexa Answers contributor, every corrupt political event.” “Are the White Helmets fake?” “Yes, they are set up by an ex-intelligence officer.” The problem with that is that the search prompts—the things that you are being directed to; the systems here—are problematic, because one person could give an answer to Amazon and that prompts the response. The second one, about the White Helmets, was a comment on a website that led Alexa to give that answer.
Search returns are not necessarily covered because, as I say, they are not the responsibility of the internet companies, but the systems that they design as to how those things are indexed and the systems to prevent them going to harmful sites by default are their responsibility, and at present the Bill does not address that. Something that forces those search companies to have appropriate risk assessments in place for the priority harms that Parliament sets, and to enforce those terms and conditions consistently, would be very wise.
Kim Leadbeater
Q
Liron Velleman: These are both pretty dangerous clauses. We are very concerned about what I would probably be kind and call their unintended consequences. They are loopholes that could allow some of the most harmful and hateful actors to spread harm on social media. I will take “journalistic” first and then move on to “democratic”.
A number of companies mentioned in the previous evidence session are outlets that could be media publications just by adding a complaints system to their website. There is a far-right outlet called Urban Scoop that is run by Tommy Robinson. They just need to add a complaints system to their website and then they would be included as a journalist. There are a number of citizen journalists who specifically go to our borders to harass people who are seeking refuge in this country. They call themselves journalists; Tommy Robinson himself calls himself a journalist. These people have been specifically taken off platforms because they have repeatedly broken the terms of service of those platforms, and we see this as a potential avenue for them to make the case that they should return.
We also see mainstream publications falling foul of the terms of service of social media companies. If I take the example of the Christchurch massacre, social media companies spent a lot of time trying to take down both the livestream of the attack in New Zealand and the manifesto of the terrorist, but the manifesto was then put on the Daily Mail website—you could download the manifesto straight from the Daily Mail website—and the livestream was on the Daily Mirror and The Sun’s websites. We would be in a situation where social media companies could take that down from anyone else, but they would not be able to take it down from those news media organisations. I do not see why we should allow harmful content to exist on the platform just because it comes from a journalist.
On “democratic”, it is still pretty unclear what the definition of democratic speech is within the Bill. If we take it to be pretty narrow and just talk about elected officials and candidates, we know that far-right organisations that have been de-platformed from social media companies for repeatedly breaking the terms of service—groups such as Britain First and, again, Tommy Robinson—are registered with the Electoral Commission. Britain First ran candidates in the local elections in 2022 and they are running in the Wakefield by-election, so, by any measure, they are potentially of “democratic importance”, but I do not see why they should be allowed to break terms of service just because they happen to have candidates in elections.
If we take it on a wider scale and say that it is anything of “democratic importance”, anyone who is looking to cause harm could say, “A live political issue is hatred of the Muslim community.” Someone could argue that that or the political debate around the trans community in the UK is a live political debate, and that would allow anyone to go on the platform and say, “I’ve got 60 users and I’ve got something to say on this live political issue, and therefore I should be on the platform,” in order to cause that harm. To us, that is unacceptable and should be removed from the Bill. We do not want a two-tier internet where some people have the right to be racist online, so we think those two clauses should be removed.
Stephen Kinsella: At Clean up the Internet this is not our focus, although the proposals we have made, which we have been very pleased to see taken up in the Bill, will certainly introduce friction. We keep coming back to friction being one of the solutions. I am not wearing this hat today, but I am on the board of Hacked Off, and if Hacked Off were here, I think they would say that the solution—although not a perfect solution—might be to say that a journalist, or a journalistic outlet, will be one that has subjected itself to proper press regulation by a recognised press regulator. We could then possibly take quite a lot of this out of the scope of social media regulation and leave it where I think it might belong, with proper, responsible press regulation. That would, though, lead on to a different conversation about whether we have independent press regulation at the moment.
Kim Leadbeater
Q
Danny Stone: I feel quite strongly that they should. I think this is about clauses 39(2) and (5). When they had an exemption last time, we were told they were already regulated, because various newspapers have their own systems, because of IPSO or whatever it might be. There was a written question in the House from Emma Hardy, and the Government responded that they had no data—no assessment of moderator system effectiveness or the harms caused. The Secretary of State said to the DCMS Select Committee that he was confident that these platforms have appropriate moderation policies in place, but was deeply sceptical about IPSO involvement. The Law Commission said that it was not going to give legal exemption to comments boards because they host an abundance of harmful material and abuse, and there are articles in, say, The Times:
“Pro-Kremlin trolls have infiltrated the reader comments on the websites of news organisations, including The Times, the Daily Mail and Fox News, as part of a ‘major influence operation’”.
A number of years ago, we worked—through the all-party parliamentary group against antisemitism, to which we provide the secretariat—on a piece with the Society of Editors on comment moderation on websites, so there have been efforts in the past, but this is a place where there is serious harm caused. You can go on The Sun or wherever now and find comments that will potentially be read by millions of people, so having some kind of appropriate risk assessment, minimum standard or quality assurance in respect of comments boards would seem to be a reasonable step. If it does not get into the Bill, I would in any event urge the Minister to develop some guidance or work with the industry to ensure they have some of those standards in place, but ideally, you would want to lose that carve-out in the Bill.
Kim Leadbeater
Yes, sorry. Is there a body that sets a framework around journalistic standards that the Bill could refer to?
Stephen Kinsella: Obviously, there are the regulators. There is IMPRESS and IPSO, at the very least. I am afraid that I do not know the answer; there must also be journalistic trade bodies, but the regulators would probably be the first port of call for me.
Caroline Ansell (Eastbourne) (Con)
Q
Stephen Kinsella: There are a few questions there, obviously. I should say that we are happy with the approach in the Bill. We always felt that focusing on anonymity was the wrong place to start. Instead, we thought that a positive right to be verified, and then a right to screen out replies and posts from unverified accounts, was the way to go.
In terms of who one should make the disclosure to, or who would provide the verification, our concern was always that we did not want to provide another trove of data that the platforms could use to target us with adverts and otherwise monetise. While we have tried to be agnostic on the solution—again, we welcome the approach in the Bill, which is more about principles and systems than trying to pick outcomes—there are third-party providers out there that could provide one-stop verification. Some of them, for instance, rely on the open banking principles. The good thing about the banks is that under law, under the payment services directive and others, we are the owners of our own data. It is a much greyer area whether we are the owners of the data that the social media platforms hold on us, so using that data that the banks have—there is a solution called One ID, for instance—they will provide verification, and you could then use that to open your social media accounts without having to give that data to the platforms.
I saw in the evidence given to you on Tuesday that it was claimed that 80% of users are reluctant to give their data to platforms. We were surprised by that, and so we looked at it. They chose their words carefully. They said users were reluctant to give their data to “certain websites”. What they meant was porn sites. In the polling they were referring to, the question was specifically about willingness to share data with porn sites, and people are, understandably, reluctant to do that. When using open banking or other systems, there are good third-party providers, I would suggest, for verification.
Caroline Ansell
Q
Stephen Kinsella: Very much not. We have conducted polling using YouGov. Compassion in Politics did polling using Opinium. The figures vary slightly, but at a minimum, two in three citizens—often four out of five citizens—are very willing to be verified and would like the opportunity to be verified if it meant that they could then screen out replies from unverified accounts. I would say there is a weight of evidence on this from the polling. By the way, we would be very happy to conduct further polling, and we would be very happy to consult with the Committee on the wording of the questions that should be put, if that would be helpful, but I think we are quite confident what the response would be.
Liron Velleman: We set two clear tests for the situation on anonymity on platforms. First, will it harm the ability of some groups in society to have freedom of speech online? We are concerned that verification could harm the ability of LGBT people and domestic abuse survivors to use the platforms in the full ways they wish to. For example, if a constituent who is, say, a domestic abuse survivor or LGBT, wished to get in touch with you but was not verified on the platform, it would be one restriction that you would not be able to get around if you chose to change your settings.
Caroline Ansell
Q
Liron Velleman: That could be very possible. One of our key questions is whether verification would mean that you had to use your real name on the platform or whether you had to verify that you were a person who was using a platform, but could then use a pseudonym on the front face of the website. I could sign up and say, “Here is my ID for the platform verification”, but if I did not wish to use my name, in order to protect my actual identity publicly on the platform, I could choose not to but still be verified as a real person. It would be different to having to have my name, Liron Velleman, as the user for Facebook or Twitter or any other platform.
The second test for us is whether it is going to make a real difference to reducing online harm. With a lot of the harm we see, people are very happy to put their names to the racism, misogyny and sexism and homophobia that they put online. We would not want to see a huge focus on anonymity, whereby we “ended” anonymity online, and yet online harm continued to propagate. We believe it would still continue, and we would not want people to be disappointed that that had not completely solved the issue. Of course, there are a huge number of anonymous accounts online that carry out abuse. Anything we can do to reduce that is welcome, but we do not see it as the silver bullet that could end racism online.
Stephen Kinsella: Obviously, we have not suggested that there is a silver bullet. We are talking about responding to what users want. A lot of users want the ability to say that they do not want to interact with people who are not using their real name. That does not mean that one could not envisage other levels of filter. You could have a different filter that said, “I am happy to interact with people who are verified to be real, but I don’t require that they have given their name”. The technology exists there, certainly to provide a menu of solutions. If you could only have one, we happen to think ours is the best, and that the evidence shows it would reduce a significant amount of disinformation spread and, certainly, abuse.
Danny Stone: I think one issue will be Ofcom’s ability to ensure consistency in policing. It is very difficult, actually, to find out where crimes have happened and who an individual is. Sometimes, the police have the power to compel the revelation of identity. The way the platforms respond is, I think, patchy, so Ofcom’s position in its guidance here will be pretty important.
The Chair
Thank you. We have time for a question from Navendu Mishra before we bring the Minister in.
Navendu Mishra (Stockport) (Lab)
Q
Danny Stone: If we are talking about the “legal but harmful” provisions, I would reflect what the witnesses from the Carnegie Trust—who are brilliant—were saying earlier. There is a principle that has been established in the Bill to list priority illegal harms, and there is no reason why priority harms against adults should not be listed. Racism and misogyny are not going anywhere. The Joint Committee suggested leaning into existing legislation, and I think that is a good principle. The Equality Act established protected characteristics, so I think that is a start—it is a good guide. I think there could be further reference to the Equality Act in the Bill, including in relation to anonymity and other areas.
Chris Philp
Q
Stephen Kinsella: Yes. We think they are extremely helpful. We welcome what we see in clause 14 and clause 57. There is thus a very clear right to be verified, and an ability to screen out interactions with unverified accounts, which is precisely what we asked for. The Committee will be aware that we have put forward some further proposals. I would really hesitate to describe them as amendments; I see them as shading-in areas—we are not trying to add anything. We think that it would be helpful, for instance, when someone is entitled to be verified, that verification status should also be visible to other users. We think that should be implicit, because it is meant to act as a signal to others as to whether someone is verified. We hope that would be visible, and we have suggested the addition of just a few words into clause 14 on that.
We think that the Bill would benefit from a further definition of what it means by “user identity verification”. We have put forward a proposal on that. It is such an important term that I think it would be helpful to have it as a defined term in clause 189. Finally, we have suggested a little bit more precision on the things that Ofcom should take into account when dealing with platforms. I have been a regulatory lawyer for nearly 40 years, and I know that regulators often benefit from having that sort of clarity. There is going to be negotiation between Ofcom and the platforms. If Ofcom can refer to a more detailed list of the factors it is supposed to take into account, I think that will speed the process up.
One of the reasons we particularly welcomed the structure of the Bill is that there is no wait for detailed codes of conduct because these are duties that we will be executing immediately. I hope Ofcom is working on the guidance already, but the guidance could come out pretty quickly. Then there would be the process of—maybe negotiating is the wrong word—to-and-fro with the platforms. I would be very reluctant to take too much on trust. I do not mean on trust from the Government; I mean on trust from the platforms—I saw the Minister look up quickly then. We have confidence in Government; it is the platforms we are little bit wary of. I heard the frustration expressed on Tuesday.
Alex Davies-Jones
indicated assent.
Stephen Kinsella: I think you said, “If platforms care about the users, why aren’t they already implementing this?” Another Member, who is not here today, said, “Why do they have to be brought kicking and screaming?” Yet, every time platforms were asked, we heard them say, “We will have to wait until we see the detail of—”, and then they would fill in whatever thing is likely to come last in the process. So we welcome the approach. Our suggestions are very modest and we are very happy to discuss them with you.
Chris Philp
Q
Danny, we have had some fairly extensive discussions on the question of small but toxic platforms such as 4chan and BitChute—thank you for coming to the Department to discuss them. I heard your earlier response to the shadow Minister, but do you accept that those platforms should be subject to duties in the Bill in relation to content that is illegal and content that is already harmful to children?
Danny Stone: Yes, that is accurate. My position has always been that that is a good thing. The extent and the nature of the content that is harmful to adults on such platforms—you mentioned BitChute but there are plenty of others—require an additional level of regulatory burden and closer proximity to the regulator. Those platforms should have to account for it and say, “We are the platforms; we are happy that this harm is on our platform and”—as the Bill says—“we are promoting it.” You are right that it is captured to some degree; I think it could be captured further.
Chris Philp
Q
“proportionate systems and processes…to ensure that…content of democratic”—
or journalistic—
“importance is taken into account”.
That is not an absolute protection; it is simply a requirement to take into account and perform a proportionate and reasonable balancing exercise. Is that not reasonable?
Liron Velleman: I have a couple of things to say on that. First, we and others in civil society have spent a decade trying to de-platform some of the most harmful actors from mainstream social media companies. What we do not want to see after the Bill becomes an Act are massive test cases where we do not know which way they will go and where it will be up to either the courts or social media companies to make their own decisions on how much regard they place in those exemptions at the same time as all the other clauses.
Secondly, one of our main concerns is the time it takes for some of that content to be removed. If we have a situation in which there is an expediated process for complaints to be made, and for journalistic content to remain on the platform for an announced time until the platform is able take it down, that could move far outside the realms of that journalistic or democratically important content. Again, using the earlier examples, it does not take long for content such as a livestream of a terrorist attack to be up on the Sun or the Daily Mirror websites and for lots of people to modify that video and bypass content, which can then be shared and used to recruit new terrorists and allow copycat attacks to happen, and can go into the worst sewers of the internet. Any friction that is placed on stopping platforms being able to take down some of that harm is definitely of particular concern to us.
Finally, as we heard on Tuesday, social media platforms—I am not sure I would agree with much of what they would say about the Bill, but I think this is true—do not really understand what they are meant to do with these clauses. Some of them are talking about flowcharts and whether this is a point-scoring system that says, “You get plus one for being a journalist, but minus two for being a racist.” I am not entirely sure that platforms will exercise the same level of regard. If, with some of the better-faith actors in the social media space, we have successfully taken down huge reams of the most harmful content and moved it away from where millions of people can see it to where only tens of thousands can see it, we do not want in any way the potential to open up the risk that hundreds of people could argue that they should be back on platforms when they are currently not there.
Chris Philp
Q
Danny Stone: My take on this—I think people have misunderstood the Bill—is that it ultimately creates a regulated marketplace of harm. As a user, you get to determine how harmful a platform you wish to engage with—that is ultimately what it does. I do not think that it enforces content take-downs, except in relation to illegal material. It is about systems, and in some places, as you have heard today, it should be more about systems, introducing friction, risk-assessing and showing the extent to which harm is served up to people. That has its problems.
The only other thing on free speech is that we sometimes take too narrow a view of it. People are crowded out of spaces, particularly minority groups. If I, as a Jewish person, want to go on 4chan, it is highly unlikely that I will get a fair hearing there. I will be threatened or bullied out of that space. Free speech has to apply across the piece; it is not limited. We need to think about those overlapping harms when it comes to human rights—not just free speech but freedom from discrimination. We need to be thinking about free speech in its widest context.
Chris Philp
Q
Stephen Kinsella: I agree entirely with what Danny was saying. Of course, we would say that our proposals have no implications for free speech. What we are talking about is the freedom not to be shouted at—that is really what we are introducing.
On disinformation, we did some research in the early days of our campaign that showed that a vast amount of the misinformation and disinformation around the 5G covid conspiracy was spread and amplified by anonymous or unverified accounts, so they play a disproportionate role in disseminating that. They also play a disproportionate role in disseminating abuse, and I think you may have a separate session with Kick It Out and the other football bodies. They have some very good research that shows the extent to which abusive language is from unverified or anonymous accounts. So, no, we do not have any free speech concerns at Clean up the Internet.
Chris Philp
Q
Liron Velleman: We are satisfied that the Bill adequately protects freedom of speech. Our key view is that, if people are worried that it does not, beefing up the universal protections for freedom of speech should be the priority, instead of what we believe are potentially harmful exemptions in the Bill. We think that freedom of speech for all should be protected, and we very much agree with what Danny said—that the Bill should be about enhancing freedom of speech. There are so many communities that do not use social media platforms because of the harm that exists currently on platforms.
On children, the Bill should not be about limiting freedom of speech, but a large amount of our work covers the growth of youth radicalisation, particularly in the far right, which exists primarily online and which can then lead to offline consequences. You just have to look at the number of arrests of teenagers for far-right terrorism, and so much of that comes from the internet. Part of the Bill is about moderating online content, but it definitely serves to protect against some of the offline consequences of what exists on the platform. We would hope that if people are looking to strengthen freedom of speech, that is a universalist principle in the Bill, and not for some groups but not others.
Chris Philp
Good. Thank you. I hope the Committee is reassured by those comments on the freedom of speech question.
Alex Davies-Jones
Q
Danny Stone: I think that a media literacy strategy is really important. There is, for example, UCL data on the lack of knowledge of the word “antisemitism”: 68% of nearly 8,000 students were unfamiliar with the term’s meaning. Dr Tom Harrison has discussed cultivating cyber-phronesis—this was also in an article by Nicky Morgan in the “Red Box” column some time ago—which is a method of building practical knowledge over time to make the right decisions when presented with a moral challenge. We are not well geared up as a society—I am looking at my own kids—to educate young people about their interactions, about what it means when they are online in front of that box and about to type something, and about what might be received back. I have talked about some of the harms people might be directed to, even through Alexa, but some kind of wider strategy, which goes beyond what is already there from Ofcom—during the Joint Committee process, the Government said that Ofcom already has its media literacy requirements—and which, as you heard earlier, updates it to make it more fit for purpose for the modern age, would be very appropriate.
Stephen Kinsella: I echo that. We also think that that would be welcome. When we talk about media literacy, we often find ourselves with the platforms throwing all the obligation back on to the users. Frankly, that is one of the reasons why we put forward our proposal, because we think that verification is quite a strong signal. It can tell you quite a lot about how likely it is that what you are seeing or reading is going to be true if someone is willing to put their name to it. Seeing verification is just one contribution. We are really talking about trying to build or rebuild trust online, because that is what is seriously lacking. That is a system and design failure in the way that these platforms have been built and allowed to operate.
Chris Philp
Q
Liron Velleman: If the Bill is seeking to make the UK the safest place to be on the internet, it seems to be the obvious place to put in something about media literacy. I completely agree with what Danny said earlier: we would also want to specifically ensure—although I am sure this already exists in some other parts of Ofcom and Government business—that there is much greater media literacy for adults as well as children. There are lots of conversations about how children understand use of the internet, but what we have seen, especially during the pandemic, is the proliferation of things like community Facebook groups, which used to be about bins and a fair that is going on this weekend, becoming about the worst excesses of harmful content. People have seen conspiracy theories, and that is where we have seen some of the big changes to how the far-right and other hateful groups operate, in terms of being able to use some of those platforms. That is because of a lack of media literacy not just among children, but among the adult population. I definitely would encourage that being in the Bill, as well as anywhere else, so that we can remove some of those harms.
Danny Stone: I think it will need further funding, beyond what has already been announced. That might put a smile on the faces of some Department for Education officials, who looked so sad during some of the consultation process—trying to ensure that there is proper funding. If you are going to roll this out across the country and make it fit for purpose, it is going to cost a lot of money.
The Chair
Thank you. As there are no further questions from Members, I thank the witnesses for their evidence. That concludes this morning’s sitting.
Ordered, That further consideration be now adjourned. —(Steve Double.)
Online Safety Bill (Fourth sitting)
Thursday 26th May 2022
(3 years, 7 months ago)
Public Bill CommitteesOnline Safety Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 May 2022 - (26 May 2022)
The Chair
Good afternoon, ladies and gentlemen. We are now sitting in public and the proceedings are being broadcast. Thank you all for joining us.
We will now hear oral evidence from Stephen Almond, the director of technology and innovation in the Information Commissioner’s Office. Mr Almond, thank you for coming. As I have introduced you, I am not going to ask you to introduce yourself, so we can go straight into the questions. I call the shadow Front-Bench spokesman.
Alex Davies-Jones (Pontypridd) (Lab)
Q
Stephen Almond: Let me start by saying that the ICO warmly welcomes the Bill and its mission to make the UK the safest place in the world to be online. End-to-end encryption supports the security and privacy of online communication and keeps people safe online, but the same characteristics that create a private space for the public to communicate can also provide a safe harbour for more malicious actors, and there are valid concerns that encrypted channels may be creating spaces where children are at risk.
Our view is that the Bill has the balance right. All services in scope, whether encrypted or not, must assess the level of risk that they present and take proportionate action to address it. Moreover, where Ofcom considers it necessary and proportionate, it will have the power to issue technology notices to regulated services to require them to deal with child sexual abuse and exploitation material. We think this presents a proportionate way of addressing the risk that is present on encrypted channels.
It is worth saying that I would not favour provisions that sought to introduce some form of outright ban on encryption in a generalised way. It is vital that the online safety regime does not seek to trade off one sort of online safety risk for another. Instead, I urge those advancing more fundamentalist positions around privacy or safety to move towards the question of how we can incentivise companies to develop technological innovation that will enable the detection of harmful content without compromising privacy. It is one reason why the ICO has been very pleased to support the Government’s safety tech challenge, which has really sought to incentivise the development of technological innovation in this area. Really what we would like to see is progress in that space.
Alex Davies-Jones
Q
Stephen Almond: First and foremost, it is incredibly important that the Bill has the appropriate flexibility to enable Ofcom as the online safety regulator to be agile in responding to technological advances and novel threats in this area. I think the question of VPNs is ultimately going to be one that Ofcom and the regulator services themselves are going to have to work around. VPNs play an important role in supporting a variety of different functions, such as the security of communications, but ultimately it is going to be critical to make sure that services are able to carry out their duties. That is going to require some questions to be asked in this area.
Alex Davies-Jones
Q
Stephen Almond: Transparency is a key foundation of data protection law in and of itself. As the regulator in this space, I would say that there is a significant emphasis within the data protection regime on ensuring that companies are transparent about the processing of personal data that they undertake. We think that that provides proportionate safeguards in this space. I would not recommend an amendment to the Bill on this point, because I would be keen to avoid duplication or an overlap between the regimes, but it is critical; we want companies to be very clear about how people’s personal data is being processed. It is an area that we are going to continue to scrutinise.
Mrs Maria Miller (Basingstoke) (Con)
May I ask a supplementary to that before I come on to my main question?
Mrs Miller
Q
Stephen Almond: I share your concern about this. To go back to what I was saying before, I think the approach that is set out in the Bill is proportionate and targeted. The granting of, ultimately, backstop powers to Ofcom to issue technology notices and to require services to deal with this horrendous material will have a significant impact. I think this will ensure that the regime operates in a risk-based way, where risks can be identified. There will be the firm expectation on service providers to take action, and that will require them to think about all the potential technological solutions that are available to them, be they content scanning or alternative ways of meeting their safety duties.
Mrs Miller
Q
Stephen Almond: The objectives of both the Online Safety Bill and the children’s code are firmly aligned in respect of protecting children online. We have reviewed the definitions and, from our perspective, there are distinctions in the definition that is applied in the Bill and the children’s code, but we find no significant tension between them. My focus at the ICO, working in co-operation with Ofcom, will ultimately be on ensuring that there is clarity for business on how the definitions apply to their services, and that organisations know when they are in scope of the children’s code and what actions they should take.
Mrs Miller
Q
Stephen Almond: We are not seeking to incorporate further aspects of the code into the Bill. We think it is important that the regimes fit together coherently, but that that is best achieved through regulatory co-operation between the ICO and Ofcom. The incorporation of the children’s code would risk creating some form of regulatory overlap and confusion.
I can give you a strong assurance that we have a good track record of working closely with Ofcom in this area. Last year, the children’s code came into force, and not too longer after it, Ofcom’s video-sharing platform regime came into force. We have worked very closely to make sure that those regimes are introduced in a harmonised way and that people understand how they fit together.
Mrs Miller
Q
Stephen Almond: The Bill has, in my view, been designed to work closely alongside data protection law. It supports effective co-operation between us and Ofcom by requiring and setting out a series of duties for Ofcom to consult with the ICO on the development of any codes of practice or formal guidance with an impact on privacy. With that framework in mind, I do not think there is a case to instil further co-operation duties in that way. I hope I can give you confidence that we and Ofcom will be working tirelessly together to promote the safety and privacy of citizens online. It is firmly in our interests and in the interest of society as a whole to do so.
Kim Leadbeater (Batley and Spen) (Lab)
Q
“safest place in the world to be online”.
In your view, what needs to be added or taken away from the Bill to achieve that?
Stephen Almond: I am not best placed to comment on the questions of online safety and online harms. You will speak to a variety of different experts who can comment on that point. From my perspective as a digital regulator, one of the most important things will be ensuring that the Bill is responsive to future challenges. The digital world is rapidly evolving, and we cannot necessarily envisage all the developments in technology that will come, or the emergence of new harms. The data protection regime is a principles-based piece of legislation. That gives us a great degree of flexibility and discretion to adapt to novel forms of technology and to provide appropriate guidance as challenges emerge. I really recommend retaining that risk-based, principles-based approach to regulation that is envisaged currently in the Online Safety Bill.
Kim Leadbeater
Q
Stephen Almond: Again, I would say that the most important thing I can recommend around this is to retain that flexibility within the Bill. I know that a temptation will emerge to offer prescription, whether for the purpose of giving companies clarity today or for addressing present harms, but it is going to be really important to make sure that there is due flexibility to enable the legislation to be responsive to future harms.
Kim Leadbeater
Q
Stephen Almond: Ultimately, it is for Ofcom to raise any concerns about the impact of the regime, as set out by its ability to apply its duties appropriately, independently and with due accountability to Parliament and the public. As a regulator, I would say that it is important to have a proper and proportionate degree of independence, so that businesses and the public can have trust in how regulation is carried out. Ultimately though, it is for Government and Parliament to determine what the right level of independence is.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)
Q
Stephen Almond: Thank you very much. I will start by explaining the Digital Regulation Cooperation Forum. It is a voluntary, not statutory, forum that brings together ourselves, Ofcom, the Competition and Markets Authority and the Financial Conduct Authority—some of the regulators with the greatest interest in digital regulation—to make sure that we have a coherent approach to the regulation of digital services in the interests of the public and indeed the economy.
We are brought together through our common interest. We do not require a series of duties or statutory frameworks to make us co-operate, because the case for co-operation is very, very clear. We will deliver better outcomes by working together and by joining up where our powers align. I think that is what you are seeing in practice in some of the work we have done jointly—for example, around the implementation of the children’s code alongside Ofcom’s implementation of the video-sharing platform regime. A joined-up approach to questions about, for example, how you assure the age of children online is really important. That gives me real confidence in reassuring the Committee that the ICO, Ofcom and other digital regulators will be able to take a very joined-up approach to regulating in the context of the new online safety regime.
Chris Philp
Q
Stephen Almond: In our view, the Bill strikes an appropriate balance between privacy and online safety. The duties in the Bill should leave service providers in no doubt that they must comply with data protection law, and that they should guard against unwarranted intrusion of privacy. In my discourse with firms, I am very clear that this is not a trade-off between online safety and privacy: it is both. We are firmly expecting that companies take that forward and work out how they are going to adopt both a “privacy by design” and a “safety by design” approach to the delivery of their services. They must deliver both.
Chris Philp
Q
Stephen Almond: In brief, yes. We feel that the Bill has been designed to work alongside data protection law, for which we remain the statutory regulator, but with appropriate mechanisms for co-operation with the ICO—so, with this series of consultation duties where codes of practice or guidance that could be issued by Ofcom may have an impact on privacy. We think that is the best way of assuring regulatory coherence in this area.
The Chair
Mr Almond, we are trying to get a pint into a half-pint pot doing this, so we are rushing a bit. If, when you leave the room, you have a “I wish I’d said that” moment, please feel free to put it in writing to us. We are indebted to you. Thank you very much indeed.
Examination of Witnesses
Sanjay Bhandari and Lynn Perry gave evidence.
The Chair
Moving, I hope, seamlessly on, we are now going to hear oral evidence from Sanjay Bhandari, who is the chairman of Kick It Out, and—as the Committee agreed this morning—after Tuesday’s technical problems, if we do not have further technical problems, we are going to hear from Lynn Perry from Barnardo’s, again by Zoom. Is Lynn Perry on the line? [Interruption.] Lynn Perry is not on the line. We’ve got pictures; now all we need is Lynn Perry in the pictures.
I am afraid we must start, but if Lynn Perry is able to join, we will be delighted to hear from her. We have Mr Bhandari, so we will press on, because we are very short of time as it is. We hope that Lynn Perry will join us.
Alex Davies-Jones
Q
Sanjay Bhandari: I think you would have to ask them why it has not been tackled. My perception of their reaction is that it has been a bit like the curate’s egg: it has been good in parts and bad in parts, and maybe like the original meaning of that allegory, it is a polite way of saying something is really terrible.
Before the abuse from the Euros, actually, we convened a football online hate working group with the social media companies. They have made some helpful interventions: when I gave evidence to the Joint Committee, I talked about wanting to have greater friction in the system, and they are certainly starting to do that with things like asking people, “Do you really want to send this?” before they post something. We understand that that is having some impact, but of course, it is against the backdrop of a growing number of trolls online. Also, we have had some experiences where we make a suggestion, around verification for instance, where we are introducing third-party companies to social media companies, and very often the response we get is different between London and California. London will say “maybe”, and California then says “no”. I have no reason to distrust the people we meet locally here, but I do not think they always have the power to actually help and respond. The short answer is that there are certainly good intentions from the people we meet locally and there is some action. However, the reality is that we still see quite a lot of content coming through.
Alex Davies-Jones
Q
Sanjay Bhandari: I think we need to work that through. I am sorry that my colleagues from the Premier League and the Football Association could not be here today; I did speak to them earlier this week but unfortunately they have got some clashes. One thing we are talking about is how we tag this new framework to exist in content. We have a few hundred complaints that the Premier League investigates, and we have got a few thousand items that are proactively identified by Signify, working with us and the Professional Footballers’ Association. Our intention is to take that data and map it to the new framework and say, “Is this caught? What is caught by the new definition of harm? What is caught by priority illegal content? What is caught by the new communication offences, and what residue in that content might be harmful to adults?” We can then peg that dialogue to real-world content rather than theoretical debate. We know that a lot of complaints we receive are in relation to direct messaging, so we are going to do that exercise. It may take us a little bit of time, but we are going to do that.
The Chair
Lynn Perry is on the line, but we have lost her for the moment. I am afraid we are going to have to press on.
Mrs Miller
Q
Sanjay Bhandari: There is quite a lot in that question. In terms of whether people should be fully anonymous or not, it depends on what you mean by fully. I am a lawyer, so I have 30 years specialising in the grey, rather than in the black and white. It really does depend on what you mean by fully. In my experience, nothing is absolute. There is no absolute right to freedom of speech; I cannot come in here and shout “Fire!” and make you all panic. There is also no absolute right to anonymity; I cannot use my anonymity online as a cloak to commit fraud. Everything is qualified. It is a question of what is the balance of those qualifications and what those qualifications should be, in the particular context of the problem that we are seeking to address.
The question in this context is around the fact that anonymity online is actually very important in some contexts. If you are gay in a country where that is illegal, being anonymous is a fantastic way to be able to connect with people like you. In a country that has a more oppressive regime, anonymity is another link to the outside world. The point of the Bill is to try to get the balance so that anonymity is not abused. For example, when a football player misses a penalty in a cup final, the point of the Bill is that you cannot create a burner account and instantly send them a message racially abusing them and then delete the account—because that is what happens now. The point of the Bill, which we are certainly happy with in general terms, is to draw a balance in the way that identity verification must be offered as an option, and to give users more power over who they interact with, including whether they wish to engage only with verified accounts.
We will come back and look in more detail at whether we would like more amendments, and we will also work with other organisations. I know that my colleague Stephen Kinsella of Clean up the Internet has been looking at those anonymity provisions and at whether verification should be defined and someone’s status visible on the face of the platforms, for instance. I hope that answers those two or three questions.
The Chair
I saw you nodding, Ms Perry. Do you wish to add anything?
Lynn Perry: I agree. The important thing, particularly from the perspective of Barnardo’s as a children’s charity, is the right of children to remain safe and protected online and in no way compromised by privacy or anonymity considerations online. I was nodding along at certain points to endorse the need to ensure that the right balance is struck for protections for those who might be most vulnerable.
Kirsty Blackman (Aberdeen North) (SNP)
Q
Lynn Perry: There are several things that we welcome as a children’s charity. One of them, age verification, has just been mentioned. We are particularly concerned and have written about children’s access to harmful and extreme pornography—they are sometimes only a couple of clicks away from harmful online commercial pornography—and we welcome the age-verification measures in the Bill. However, we are concerned about the length of time that it may take to implement those measures, during which children and young people will remain at risk and exposed to content that is potentially harmful to their development. We would welcome measures to strengthen that and to compel those companies to implement the measures earlier. If there were a commencement date for that, those provisions could be strengthened.
Kirsty Blackman
Q
Lynn Perry: There are some contextual considerations that we have been reflecting on as a charity, influenced by what we have heard from children, young people, parents and carers. We know that more children have had access to digital devices and have spent more time online over the last couple of years in particular. In that sense, we are concerned that the Bill needs to be strengthened because of the volume of access, the age at which children and young people now access digital content, and the amount of time that they spend online.
There are some other contextual things in respect of grooming. We welcome the fact that offences are named on the face of the Bill, for example, but one of the things that is not currently included is the criminal exploitation of children. We think that there is another opportunity to name criminal exploitation, where young people are often targeted by organised criminal gangs. We have seen more grooming of that type during the pandemic period as offenders have changed the ways in which they seek to engage young people. That is another area that we would welcome some consideration of.
Kirsty Blackman
Q
Lynn Perry: Grooming does happen within gaming, and we know that online video games offer some user-to-user interaction. Users sometimes have the ability to create content within platforms, which is in scope for the Bill. The important thing will be enforcement and compliance in relation to those provisions. We work with lots of children and young people who have been sexually exploited and abused, and who have had contact through gaming sites. It is crucial that this area is in focus from the perspective of building in, by design, safety measures that stop perpetrators being able to communicate directly with children.
Private messaging is another area for focus. We also consider it important for Ofcom to have regulatory powers to compel firms to use technology that could identify child abuse and grooming.
Kim Leadbeater
Q
Sanjay Bhandari: I can see that there is something specific in the communications offences and that first limb around threatening communications, which will cover a lot of the things we see directed at female football pundits, like rape threats. It looks as though it would come under that. With our colleagues in other civil society organisations, particularly Carnegie UK Trust, we are looking at whether more should be done specifically about tackling misogyny and violence against women and girls. It is something that we are looking at, and we will also work with our colleagues in other organisations.
The Chair
Q
Lynn Perry: When we were looking at children and young people’s access to harmful pornographic content, one thing we were particularly concerned about related to seeing extreme harmful and violent content, often perpetrated towards women. In respect of younger children, violence against women and girls and gender-based violence considerations, it is something that we are concerned about in that context.
Kim Leadbeater
Q
Lynn Perry: I am sorry—that was a question about advocacy, I think.
Kim Leadbeater
Yes, the idea of having a statutory user advocacy body that would represent the interests of children. This is something that has been talked about. Is that something you have any thoughts about?
Lynn Perry: We certainly have a lot of representation from children and young people directly. Last year, we worked with more than 380,000 children and young people. We think that advocacy and representation on behalf of children and young people can be used to powerful effect. Making sure that the voices of children and young people, their views, wishes and experiences, are heard and influence legislation that could safeguard and protect them effectively is something that we are supportive of.
Kim Leadbeater
Q
Lynn Perry: As a recommendation, we think that could only strengthen the protections of children.
Chris Philp
Q
Lynn Perry: We would welcome provision to be able to bring particularly significant evidence of concern. That is certainly something that organisations, large charities in the sector and those responsible for representing the rights of children and young people would welcome. On some of these issues, we work in coalition to make representations on behalf of children and young people, as well as of parents and carers, who also raise some concerns. The ability to do that and to strengthen the response is something that would be welcomed.
Chris Philp
Q
Sanjay Bhandari: Our beneficiaries are under-represented or minority communities in sports. I agree, I think that the Bill goes a substantial way to protecting them and to dealing with some of the issues that we saw most acutely after the Euro 2020 finals.
We have to look at the Bill in context. This is revolutionary legislation, which we are not seeing anywhere else in the world. We are going first. The basic sanctions framework and the 10% fines I have seen working in other areas—anti-trust in particular. In Europe, that has a long history. The definition of harm being in the manner of dissemination will pick up pile-ons and some forms of trolling that we see a lot of. Hate crime being designated as priority illegal content is a big one for us, because it puts the proactive duty on the platforms. That too will take away quite a lot of content, we think. The new threatening communications offence we have talked about will deal with rape and death threats. Often the focus is on, quite rightly, the experience of black professional footballers, but there are also other people who play, watch and work in the game, including our female pundits and our LGBT fan groups, who also get loads of this abuse online. The harm-based offence—communications sent to cause harm without reasonable excuse—will likely cover things such as malicious tagging and other forms of trolling. I have already talked about the identification, verification and anonymity provisions.
I think that the Bill will go a substantial way. I am still interested in what fits into that residual category of content harmful to adults, but rather than enter into an arid philosophical and theoretical debate, I will take the spirit of the Bill and try to tag it to real content.
Chris Philp
Q
Sanjay Bhandari: I do not think it was adequate because we still see stuff coming through. They have the greatest power to stop it. One thing we are interested in is improving transparency reporting. I have asked them a number of times, “Someone does not become a troll overnight, in the same way that someone does not become a heroin addict overnight, or commit an extremist act of terrorism overnight. There is a pathway where people start off, and you have that data. Can I have it?” I have lost count of the number of times that I have asked for that data. Now I want Ofcom to ask them for it.
Chris Philp
Q
Lynn Perry: We do. Barnardo’s really welcomes the Bill. We think it is a unique and once-in-a-generation opportunity to achieve some really long-term changes to protect children from a range of online harms. There are some areas in which the Bill could go further, which we have talked about today. The opportunity that we see here is to make the UK the safest place in the world for children to be online. There are some very important provisions that we welcome, not least on age verification, the ability to raise issues through super-complaints, which you have asked me about, and the accountability in various places throughout the Bill.
Chris Philp
Q
Sanjay Bhandari: As I said earlier, there are no absolute rights. There is no absolute right to freedom of speech— I cannot shout “Fire!” here—and there is no absolute right to privacy; I cannot use my anonymity as a cloak for criminality. It is question of drawing an appropriate balance. In my opinion, the Bill draws an appropriate balance between the right to freedom of speech and the right to privacy. I believe in both, but in the same way that I believe in motherhood and apple pie: of course I believe in them. It is really about the balancing exercise, and I think this is a sensible, pragmatic balancing exercise.
The Chair
Ms Perry, I am very pleased that we were finally able to hear from you. Thank you very much indeed—you have been very patient. Thank you very much, Mr Bhandari. If either of you, as a result of what you have heard and been asked today, have any further thoughts that you wish to submit, please do so.
Examination of Witnesses
Eva Hartshorn-Sanders and Poppy Wood gave evidence.
The Chair
We will hear oral evidence first from Eva Hartshorn-Sanders, who is the head of policy at the Centre for Countering Digital Hate. We shall be joined in due course by Poppy Wood. Without further ado, I call the shadow Minister.
Alex Davies-Jones
Q
Eva Hartshorn-Sanders: That is obviously an important area. The main mechanism to look at are the complaints pathways and ensuring that when reports are made, action is taken, and that that is included in risk assessments as well. In our “Hidden Hate” report, we found that 90% of misogynist abuse, which included quite serious sexual harassment and abuse, videos and death threats, was not acted on by Instagram, even when we used the current pathways for the complainant. This is an important area.
Alex Davies-Jones
Q
Eva Hartshorn-Sanders: There has to be human intervention as part of that process as well. Whatever system is in place—the relationship between Ofcom and the provider is going to vary by platform and by search provider too, possibly—if you are making those sorts of decisions, you want to have it adequately resourced. That is what we are saying is not happening at the moment, partly because there is not yet the motivation or the incentives there for them to be doing any differently. They are doing the minimum; what they say they are going to do often comes out through press releases or policies, and then it is not followed through.
Alex Davies-Jones
Q
Eva Hartshorn-Sanders: I think there is a role for independent civil society, working with the regulator, to hold those companies to account and to be accessing that data in a way that can be used to show how they are performing against their responsibilities under the Bill. I know Poppy from Reset.tech will talk to this area a bit more. We have just had a global summit on online harms and misinformation. Part of the outcome of that was looking at a framework for how we evaluate global efforts at legislation and the transparency of algorithms and rules enforcement, and the economics that are driving online harms and misinformation. That is an essential part of ensuring that we are dealing with the problems.
The Chair
May I say, for the sake of the record, that we have now been joined by Poppy Wood, the UK director of Reset.tech? Ms Wood, you are not late; we were early. We are trying to make as much use as we can of the limited time. I started with the Opposition Front Bencher. If you have any questions for Poppy Wood, go ahead.
Alex Davies-Jones
Q
Poppy Wood: I did not hear your first set of questions—I apologise.
Alex Davies-Jones
That is fine. I will just ask you what you think the impact is of the decision to remove misinformation and disinformation from the scope of the Bill, particularly in relation to state actors?
Poppy Wood: Thank you very much, and thank you for having me here today. There is a big question about how this Bill tackles co-ordinated state actors—co-ordinated campaigns of disinformation and misinformation. It is a real gap in the Bill. I know you have heard from Full Fact and other groups about how the Bill can be beefed up for mis- and disinformation. There is the advisory committee, but I think that is pretty weak, really. The Bill is sort of saying that disinformation is a question that we need to explore down the line, but we all know that it is a really live issue that needs to be tackled now.
First of all, I would make sure that civil society organisations are on that committee and that its report is brought forward in months, not years, but then I would say there is just a real gap about co-ordinated inauthentic behaviour, which is not referenced. We are seeing a lot of it live with everything that is going on with Russia and Ukraine, but it has been going on for years. I would certainly encourage the Government to think about how we account for some of the risks that the platforms promote around co-ordinated inauthentic behaviour, particularly with regard to disinformation and misinformation.
Alex Davies-Jones
Q
Poppy Wood: Absolutely, and I agree with what was said earlier, particularly by groups such as HOPE not hate and Antisemitism Policy Trust. There are a few ways to do this, I suppose. As we are saying, at the moment the small but high-risk platforms just are not really caught in the current categorisation of platforms. Of course, the categories are not even defined in the Bill; we know there are going to be categories, but we do not know what they will be.
I suppose there are different ways to do this. One is to go back to where this Bill started, which was not to have categories of companies at all but to have a proportionality regime, where depending on your size and your functionality you had to account for your risk profile, and it was not set by Ofcom or the Government. The problem of having very prescriptive categories—category 1, category 2A, category 2B—is, of course, that it becomes a race to the bottom in getting out of these regulations without having to comply with the most onerous ones, which of course are category 1.
There is also a real question about search. I do not know how they have wriggled out of this, but it was one of the biggest surprises in the latest version of the Bill that search had been given its own category without many obligations around adult harm. I think that really should be revisited. All the examples that were given earlier today are absolutely the sort of thing we should be worrying about. If someone can google a tractor in their workplace and end up looking at a dark part of the web, there is a problem with search, and I think we should be thinking about those sorts of things. Apologies for the example, but it is a really, really live one and it is a really good thing to think about how search promotes these kinds of content.
Mrs Miller
Q
Eva Hartshorn-Sanders: Are you specifically asking about the takedown notices and the takedown powers?
Mrs Miller
No, I am talking about director liability and the enforcement on companies.
Eva Hartshorn-Sanders: Right. I think the responsibility on both companies and senior executives is a really critical part of this legislative package. You see how adding liability alongside financial penalties works in health and safety legislation and corporate manslaughter provisions to motivate changes not only within company culture but in the work that they are doing and what they factor into the decisions they make. It is a critical part of this Bill.
Mrs Miller
Q
Eva Hartshorn-Sanders: I think it is a good start. I would want to have another look at it to say more. There is a review after two years, as set out in clause 149, so there could be a factor that gets added into that, as well.
Mrs Miller
Poppy, do you have anything to add?
Poppy Wood: Yes. I think we could go much further on enforcement. One of the things that I really worry about is that if the platforms make an inadequate risk assessment, there is not much that Ofcom can do about it. I would really like to see powers for Ofcom to say, “Okay, your risk assessment hasn’t met the expectations that we put on you, so we want you to redo it. And while you’re redoing it, we may want to put you into a different category, because we may want to have higher expectations of you.” That way, you cannot start a process where you intentionally make an inadequate risk assessment in order to extend the process of you being properly regulated. I think that is one thing.
Then, going back to the point about categorisation, I think that Ofcom should be given the power to recategorise companies quickly. If you think that a category 2B company should be a category 1 company, what powers are there for Ofcom to do that? I do not believe that there are any for Ofcom to do that, certainly not to do it quickly, and when we are talking about small but high-risk companies, that is absolutely the sort of thing that Ofcom should be able to do—to say, “Okay, you are now acting like a category 1 company.” TikTok, Snapchat—they all started really small and they accelerated their growth in ways that we just could not have predicted. When we are talking about the emergence of new platforms, we need to have a regulator that can account for the scale and the pace at which these platforms grow. I think that is a place where I would really like to see Ofcom focusing.
Kirsty Blackman
Q
Eva Hartshorn-Sanders: There are still lots of issues with it. We recently put a report out on anti-Muslim hatred and found that 90% of the content that was reported was not acted on. That was collectively, across the platforms, so it was not just Facebook. Facebook was in the mid-90s, I think, in terms of its failure to act on that type of harmful content. There are absolutely still issues with it, and this regulation—this law—is absolutely necessary to drive change and the investment that needs to go into it.
Kirsty Blackman
Q
Poppy Wood: I think it goes without saying that the algorithmic promotion of harmful content is one of the biggest issues with the model we have in big tech today. It is not the individual pieces of content in themselves that are harmful. It is the scale over which they spread out—the amplification of them; the targeting; the bombardment.
If I see one piece of flat-earth content, that does not necessarily harm me; I probably have other counter-narratives that I can explore. What we see online, though, is that if you engage with that one piece of flat-earth content, you are quickly recommended something else—“You like this, so you’ll probably like that”—and then, before you know it, you are in a QAnon conspiracy theory group. I would absolutely say that the algorithmic promotion of harmful content is a real problem. Does that mean we ban algorithms? No. That would be like turning off the internet. You have to go back and ask, how it is that that kind of harm is promoted, and how is it that we are exploiting human behaviour? It is human nature to be drawn to things that we cannot resist. That is something that the Bill really needs to look at.
In the risk assessments, particularly for illegal content and content that is harmful to children, it explicitly references algorithmic promotion and the business model. Those are two really big things that you touched on in the question. The business model is to make money from our time spent online, and the algorithms serve us up the content that keeps us online. That is accounted for very well in the risk assessments. Some of the things around the safety duties do not necessarily account for that, just because you are risk assessing for it. Say you identify that our business model does promote harmful content; under the Bill, you do not have to mitigate that all the time. So I think there are questions around whether the Bill could go further on algorithmic promotion.
If you do not mind, I will quickly come back to the question you asked Eva about reporting. We just do not know whether reporting is really working because we cannot see—we cannot shine a light into these platforms. We just have to rely on them to tell us, “Hey, reporting is working. This many pieces of content were reported and this many pieces of content were taken down.” We just do not know if that is true. A big part of this regime has to be about transparency. It already is, but I think it could go much further in enabling Ofcom, Government, civil society and researchers to say, “Hey, you said that many pieces of content were reported and that many pieces of content were taken down, but actually, it turns out that none of that is true. We are still seeing that stuff online.” Transparency is a big part of the solution around understanding whether reporting is really working and whether the platforms are true to their word.
Caroline Ansell (Eastbourne) (Con)
Q
Poppy Wood: Absolutely. I know that children’s groups are asking for minimum standards for children’s risk assessments, but I agree that they should be across the board. We should be looking for the best standards that we can get. I really do not trust the platforms to do these things properly, so I think we have to be really tough with them about what we expect from them. We should absolutely see minimum standards.
Caroline Ansell
Q
Poppy Wood: Obviously Ofcom is growing. The team at Ofcom are fantastic, and they are hiring really top talent. They have their work cut out in dealing with some of the biggest and wealthiest companies in the world. They need to be able to rely on civil society and researchers to help them to do their job, but I do not think we should rule out Ofcom being able to do these things. We should give it the powers to do them, because that makes this regime have proper teeth. If we find down the line that, actually, it is too much, that is for the Government to sort out with resourcing, or for civil society and researchers to support, but I would not want to rule things out of the Bill just because we think Ofcom cannot do them.
Caroline Ansell
Q
Poppy Wood: Of course, the Bill has quite a unique provision for looking at anonymity online. We have done a big comparison of online safety regulations across the world, and nobody is looking at anonymity in the same way as the UK. It is novel, and with that comes risk. Let us remember that anonymity is a harm reduction mechanism. For lots of people in authoritarian regimes, and even for those in the UK who are survivors of domestic abuse or who want to explore their sexuality, anonymity is a really powerful tool for reducing harm, so we need to remember that when we are talking about anonymity online.
One of my worries about the anonymity agenda in the Bill is that it sounds really good and will resonate really well with the public, but it is very easy to get around, and it would be easy to oversell it as a silver bullet for online harm. VPNs exist so that you can be anonymous. They will continue to exist, and people will get around the rules, so we need to be really careful with the messaging on what the clauses on anonymity really do. I would say that the whole regime should be a privacy-first regime. There is much more that the regime can do on privacy. With age verification, it should be privacy first, and anonymity should be privacy first.
I also have some concerns about the watering down of privacy protections from the draft version of the Bill. I think the language was “duty to account for the right to privacy”, or something, and that right-to-privacy language has been taken out. The Bill could do more on privacy, remembering that anonymity is a harm-reducing tool.
Caroline Ansell
Q
Eva Hartshorn-Sanders: I heard the advice that the representative of the Information Commissioner’s Office gave earlier—he feels that the balance is right at the moment. It is important to incorporate freedom of speech and privacy within this framework in a democratic country. I do not think we need to add anything more than that.
Kim Leadbeater
Q
Poppy Wood: I know you have spoken a lot about this over the past few days, but the content of democratic importance clause is a layer of the Bill that makes the Bill very complicated and hard to implement. My concern about these layers of free speech—whether it is the journalistic exemption, the news media exemption or the content of democratic importance clause—is that, as you heard from the tech companies, they just do not really know what to do with it. What we need is a Bill that can be implemented, so I would definitely err on the side of paring back the Bill so that it is easy to understand and clear. We should revisit anything that causes confusion or is obscure.
The clause on content of democratic importance is highly problematic—not just because it makes the Bill hard to implement and we are asking the platforms to decide what democratic speech is, but because I think it will become a gateway for the sorts of co-ordinated disinformation that we spoke about earlier. Covid disinformation for the past two years would easily have been a matter of public policy, and I think the platforms, because of this clause, would have said, “Well, if someone’s telling you to drink hydroxychloroquine as a cure for covid, we can’t touch that now, because it’s content of democratic importance.”
I have another example. In 2018, Facebook said that it had identified and taken down a Facebook page called “Free Scotland 2014”. In 2018—four years later—Facebook identified it. It was a Russian/Iranian-backed page that was promoting falsehoods in support of Scottish independence using fake news websites, with articles about the Queen and Prince Philip wanting to give themselves a pay rise by stealing from the poor. It was total nonsense, but that is easily content of democratic importance. Even though it was backed by fake actors—as we have said, I do not think there is anything in the Bill to preclude that at the moment, or at least to get the companies to focus on it—in 2014, that content would have been content of democratic importance, and the platforms took four years to take it down.
I think this clause would mean that that stuff became legitimate. It would be a major loophole for hate and disinformation. The best thing to do is to take that clause out completely. Clause 15(3) talks about content of democratic importance applying to speech across a diverse range of political opinion. Take that line in that subsection and put it in the freedom of expression clause—clause 19. What you then have is a really beefed-up freedom of expression clause that talks about political diversity, but you do not have layers on top of it that mean bad actors can promote hate and disinformation. I would say that is a solution, and that will make the Bill much easier to implement.
Kim Leadbeater
Q
Eva Hartshorn-Sanders: I think the principle behind the duty is correct and that they should consider the democratic importance of content when they are making moderation decisions, but what we know from our work is that misinformation and disinformation on social media poses a real threat to elections and democracies around the world. As an international organisation, we have studied the real harms caused by online election disinformation in countries like the US. We saw websites like The Gateway Pundit profit from Google ads to the tune of over $1 million while spreading election disinformation. That has led to real-world death threats sent to election officials and contributed to the events of 6 January. It is not something we want to see replicated in the UK.
The problem with the democratic importance duty is that it is framed negatively about preventing platforms from removing content, rather than positively about addressing content that undermines elections. That is concerning because it is the latter that has proved to be damaging in the real world. I think where we are getting to is that there should be a positive duty on platforms to act on content that is designed and intended to undermine our democracy and our elections.
To add to that, the Joint Committee on the draft Bill looked specifically at having misinformation and disinformation on elections and public health on the face of the Bill rather than leaving it to secondary legislation. That is a position that we would support. The type of harm we have seen over the last couple of years through covid is a known harm and it is one that we should be addressing. It has led to the deaths of millions of people around the world.
Kim Leadbeater
Q
Eva Hartshorn-Sanders: Obviously abuse is unacceptable, and there have been real issues with that globally and I know in the UK from the work we have done with MPs here, including through the misogyny research. I guess this is the balance—if people have concerns about legitimate political decisions that are being made—but that is why you have an independent regulator who can assess that content.
Kim Leadbeater
Q
Poppy Wood: We are seeing people who put themselves forward in public life receiving all sorts of horrible abuse, which was cited as a big reason for women and people of colour removing themselves from public life in recent elections. My understanding is that the threatening communications offences brought in under the illegal duties will probably cover quite a lot of that. The idea that Eva just gave of an election risk assessment or something might, coupled with the threatening communications offences, mean that you are accounting for how your platform promotes that sort of hate.
One of the things that you would want to try to avoid is making better protections for politicians than for everyone else, but I think that threatening communications already covers some of that stuff. Coupled with an elections risk assessment, that would hopefully mean that there are mitigating effects on the risks identified in those risk assessments to tackle the sorts of things that you were just talking about.
Eva Hartshorn-Sanders: Just to add to that, from our work on “Don’t Feed the Trolls”, we know that a lot of these hate campaigns are quite co-ordinated. There is a whole lot of supporting evidence behind that. They will often target people who raise themselves up in whatever position, whether elected or a different type. The misogyny report we have just done had a mix of women who were celebrities or just had a profile and a large Instagram following and who were, again, subject to that abuse.
Kim Leadbeater
Q
Eva Hartshorn-Sanders: There are definitely parts of the Bill that could be strengthened in that area. Part of that relates to incels and how they are treated, or not, as a terrorist organisation; or how small sites might be treated under the Bill. I can elaborate on that if you like.
Chris Philp
Q
Eva Hartshorn-Sanders: Our “Hidden Hate” report was on DMs—direct messages—that were shared by the participants in the study. One in 15 of those broke the terms and conditions that Instagram had set out related to misogynist abuse—sexual abuse. That was in the wake of the World cup, so after Instagram had done a big promotion about how great it was going to be in having policies on these issues going forward. We found that 90% of that content was not acted on when we reported it. This was not even them going out proactively to find the content and not doing anything with it; it was raised for their attention, using their systems.
Chris Philp
Q
Eva Hartshorn-Sanders: That will depend on transparency, as Poppy mentioned. How much of that information can be shared? We are doing research at the moment on data that is shared personally, or is publicly available through the different tools that we have. So it is strengthening access to that data.
There is this information asymmetry that happens at the moment, where big tech is able to see patterns of abuse. In some cases, as in the misogyny report, you have situations where a woman might be subject to abuse from one person over and over again. The way that is treated in the EU is that Instagram will go back and look at the last 30 historically to see the pattern of abuse that exists. They are not applying that same type of rigorousness to other jurisdictions. So it is having access to it in the audits that are able to happen. Everyone should be safe online, so this should be a safety-by-design feature that the companies have.
Chris Philp
Q
Eva Hartshorn-Sanders: I think it depends on who the researchers are. I personally do not have experience of it, but I cannot speak to that. On transparency, at the moment, the platforms generally choose what they share. They do not necessarily give you the data that you need. You can hear from my accent that I am originally from New Zealand. I know that in the wake of the Christchurch mosque terrorist attack, they were not prepared to provide the independent regulator with data on how many New Zealanders had seen the footage of the livestream, which had gone viral globally. That is inexcusable, really.
The Chair
Q
Poppy Wood: On the point about access to data, I do not believe that the platforms go as far as they could, or even as far as they say they do. Meta have a tool called CrowdTangle, which they use to provide access to data for certain researchers who are privileged enough to have access. That does not even include comments on posts; it is only the posts themselves. The platforms pull the rug out all the time from under researchers who are investigating things that the platforms do not like. We saw that with Laura Edelson at New York University, who they just cut off—that is one of the most famous cases. I think it is quite egregious of Meta to say that they give lots of access to data.
We know from the revelations of whistleblowers that Meta do their own internal research, and when they do not like the results, they just bury it. They might give certain researchers access to data under certain provisions, but independent researchers who want to investigate a certain emergent harm or a certain problem are not being given the sort of access that they really need to get insights that move the needle. I am afraid that I just do not believe that at all.
The Bill could go much further. A provision on access to data in clause 136 states that Ofcom has two years to issue a report on whether researchers should get access to data. I think we know that researchers should have access to data, so I would, as a bare minimum, shorten the time that Ofcom has to do that report from two years to six months. You could turn that into a question of how to give researchers access to data rather than of whether they should get it. The Digital Services Act—the EU equivalent of the Bill—goes a bit further on access to data than our Bill. One result of that might be that researchers go to the EU to get their data because they can get it sooner.
Improving the Bill’s access to data provisions is a no-brainer. It is a good thing for the Government because we will see more stuff coming out of academia, and it is a good thing for the safety tech sector, because the more research is out there, the more tools can be built to tackle online harms. I certainly call on the Government to think about whether clause 136 could go further.
Chris Philp
Q
Poppy Wood: It is not an easy problem to solve, for sure. What everybody is saying is that you do it in a content-neutral way, so that you are not talking about listing specific types of misinformation but about the risks that are built into your system and that need to be mitigated. This is a safety by design question. We have heard a lot about introducing more friction into the system, checking the virality threshold, and being more transparent. If you can get better on transparency, I think you will get better on misinformation.
If there is more of an obligation on the platforms to, first, do a broader risk assessment outside of the content that will be listed as priority content and, secondly, introduce some “harm reduction by design” mechanisms, through friction and stemming virality, that are not specific to certain types of misinformation, but are much more about safety by design features—if we can do that, we are part of the way there. You are not going to solve this problem straightaway, but you should have more friction in the system, be it through a code of practice or a duty somewhere to account for risk and build safer systems. It cannot be a content play; it has to be a systems play.
The Chair
Thank you. I am sorry, but that brings us to the end of the time allotted to this session. Ladies, if either of you wishes to make a submission in writing in the light of what you have not answered or not been able to answer, please do. Ms Wood, Ms Hartsholm-Sanders, thank you very much indeed for joining us.
Examination of Witnesses
Owen Meredith and Matt Rogerson gave evidence.
The Chair
We shall now hear from Owen Meredith, chief executive of News Media Association, and Matt Rogerson, director of public policy at Guardian Media Group.
Alex Davies-Jones
Q
Owen Meredith: You may be aware that we submitted evidence to the Joint Committee that did prelegislative scrutiny of the draft Bill, because we think that although the Government’s stated intention to have content from recognised news media publishers, who I represent, outside the scope of the Bill, we do not believe that the drafting, as it was and still is, achieves that. Ministers and the Secretary of State have confirmed, both in public appearances and on Second Reading, that they wish to table further amendments to achieve the aim that the Government have set out, which is to ensure that content from recognised news publishers is fully out of scope of the Bill. It needs to go further, but I understand that there will be amendments coming before you at some point to achieve that.
Alex Davies-Jones
Q
Owen Meredith: I would like to see a full exemption for recognised news publisher content.
Alex Davies-Jones
Q
Matt Rogerson: Yes. I would step back a bit and point to the evidence that a few of your witnesses gave today and Tuesday. I think Fair Vote gave evidence on this point. At the moment, our concern is that we do not know what the legal but harmful category of content that will be included in the Bill will look like. That is clearly going to be done after the event, through codes of practice. There is definitely a danger that news publisher content gets caught by the platforms imposing that. The reason for having a news publisher exemption is to enable users of platforms such as Facebook, Twitter and others to access the same news as they would via search. I agree with Owen’s point. I think the Government are going in the right direction with the exemption for broadcasters such as the BBC, The Times and The Guardian, but we would like to see it strengthened a bit to ensure a cast-iron protection.
Alex Davies-Jones
Q
Matt Rogerson: I think it is quite difficult for platforms to interpret that. It is a relatively narrow version of what journalism is—it is narrower than the article 10 description of what journalism is. The legal definitions of journalism in the Official Secrets Act and the Information Commissioner’s Office journalism code are slightly more expansive and cover not just media organisations but acts of journalism. Gavin Millar has put together a paper for Index on Censorship, in which he talks about that potentially being a way to expand the definition slightly.
The challenge for the platforms is, first, that they have to take account of journalistic content, and there is not a firm view of what they should do with it. Secondly, defining what a piece of journalism or an act of journalism is takes a judge, generally with a lot of experience. Legal cases involving the media are heard through a specific bench of judges—the media and communications division—and they opine on what is and is not an act of journalism. There is a real challenge, which is that you are asking the platforms to—one assumes—use machine learning tools to start with to identify what is a potential act of journalism. Then an individual, whether they are based in California or, more likely, outsourced via an Accenture call centre, then determines within that whether it is an act of journalism and what to do with it. That does place quite a lot of responsibility on the platforms to do that. Again, I would come back to the fact that I think if the Bill was stripped back to focus on illegal content, rather than legal but harmful content, you would have less of these situations where there was concern that that sort of content was going to be caught.
Alex Davies-Jones
Q
Matt Rogerson: Yes, a few. The first thing that is missing from the Bill is a focus on advertising. The reason we should focus on advertising is that that is why a lot of people get involved in misinformation. Ad networks at the moment are able to channel money to “unknown” sites in ways that mean that disinformation or misinformation is highly profitable. For example, a million dollars was spent via Google’s ad exchanges in the US; the second biggest recipient of that million dollars was “Unknown sites”—sites that do not categorise themselves as doing anything of any purpose. You can see how the online advertising market is channelling cash to the sort of sites that you are talking about.
In terms of state actors, and how they relate to the definition, the definition is set out quite broadly in the Bill, and it is more lengthy than the definition in the Crime and Courts Act 2013. On top of that definition, Ofcom would produce guidance, which is subject to a full and open public consultation, which would then work out how you are going to apply the definition in practice. Even once you have that guidance in place, there will be a period of case law developing where people will appeal to be inside of that exemption and people will be thrown out of that exemption. Between the platforms and Ofcom, you will get that iteration of case law developing. So I suppose I am slightly more confident that the exemption would work in practice and that Ofcom could find a workable way of making sure that bad actors do not make use of it.
The Chair
Mr Meredith, do you wish to add to that?
Owen Meredith: No, I would echo almost entirely what Matt has said on that. I know you are conscious of time.
Mrs Miller
Q
Owen Meredith: Yes, I think they should be included within the news publisher exemption as it is spelt out. As far as I understand, that has always been the intention, since the original White Paper many years ago that led to where we are today. There is a very good reason for that, not least the fact that the comments on news publisher websites are still subject to the responsibility of the editor and the publisher; they are subject to the regulation of the Independent Press Standards Organisation, in the case of those publishers who are regulated under the self-regulation system by IPSO, as the majority of my members are. There is a very different environment in news publisher websites’ comments sections, where you are actively seeking to engage with those and read those as a user, whereas on social media platforms that content can come to you without you wishing to engage with it.
Mrs Miller
Q
Owen Meredith: Everything published by the news site is ultimately the responsibility of the editor.
Matt Rogerson: I think there are various cases. I think Delfi is the relevant case in relation to comments, where if a publisher is notified of a defamatory comment within their comments section, they are legally liable for it if they do not take it down. To speak from a Guardian perspective, we would like comments sections to be included within the exemption. The self-regulation we have in place for our comments section has been quite a journey. We undertook quite a big bit of research on all the comments that had been left over an 11-year period. We tightened up significantly the processes that we had in place. We currently use a couple of steps to make sure those comments sections are well moderated. We use machine learning against very tightly defined terms, and then every single comment that is taken down is subject to human review. I think that works in the context of a relatively small website such as The Guardian, but it would be a much bigger challenge for a platform of the size of Facebook.
Kim Leadbeater
Q
Matt Rogerson: My point is that for news publishers there is a lack of definition in the journalistic content exemption, and that platforms without the exemption would have to identify whether every piece of content on their platform was journalism, so it would be very difficult for the platforms to implement. That is why for trusted news brands such as the BBC, The Times, and The Guardian, the news media exemption is really important.
What we do not know, and what Gavin Millar suggested in his paper to Index on Censorship, is how that journalistic content exemption will be interpreted by the platforms. His fear in the paper is that the current definition means that the content has to be UK-linked. It could mean, for example, that a blog or a journalist that talks about issues in the Gulf or Ukraine would not be seen as journalistic content and therefore would not be able to take advantage of the systems that the platforms put in place. I think his view is that it should be in line with the article 10 definition of journalistic content, which would seem to make sense.
Owen Meredith: If I could add to that, speaking from my members’ perspective, they would all fall under the recognised news publisher definition. I think that is why it is an important definition. It is not an easy thing to get right, and I think the Department has done a good job in drafting the Bill. I think it captures everyone we would expect it to capture. I think actually it does set a relatively high bar for anyone else who is seeking to use that. I do not think it is possible for someone to simply claim that they are a recognised news publisher if they are operating in a way that we would not expect of such a person or entity. I think it is very important that that definition is clear. I think it is clear and workable.
Kim Leadbeater
Q
Owen Meredith: Yes.
Matt Rogerson: Yes.
Kim Leadbeater
Q
Owen Meredith: Matt spoke to this a little bit, but from my perspective, my focus has been on making sure that the recognised news publisher clause is right, because everything that my members publish is journalistic content. Therefore, the bulk of journalistic content that is out there will be covered by that. I think where there are elements of what else could be considered journalistic content, the journalistic content clause will pick those up.
Kim Leadbeater
Q
Matt Rogerson: I wish I was a journalist.
Kim Leadbeater
Sorry, as representatives of journalists.
Matt Rogerson: It worries me in the sense that we want a plural media ecosystem in this country, and we want individuals who are journalists to have their content published on platforms, so that it can be read by the 50% of the UK population that get their news from Facebook. I think it is potentially problematic that they won’t be able to publish on that platform if they talk about issues that are in the “legal but harmful” bucket of harms, as defined after the Bill is passed. I think there is concern for those groups.
There are suggestions for how you could change the clause to enable them to have more protection. As I say, Gavin Millar has outlined that in his paper. Even then, once you have got that in place, if you have a series of legal but harmful harms that are relatively unclear, the challenge for the platforms will be interpreting that and interpreting it against the journalistic content clause.
Kim Leadbeater
Q
Owen Meredith: I do not think that would be allowable under the Bill, because of the distinction between a recognised news publisher publishing what we would all recognise as journalistic content, versus the journalistic content exemption. I think that is why they are treated differently.
Chris Philp
Q
Owen Meredith: Yes. I think the issue is how that exemption will work in practice. I think that what the Government have said they are looking at and will bring forward does address the operating in practice.
Chris Philp
Q
Owen Meredith: As I alluded to earlier, it is a real challenge to set out this legal definition in a country that believes, rightly, in the freedom of the press as a fourth pillar of democracy. It is a huge challenge to start with, and therefore we have to set out criteria that cover the vast majority of news publishers but do not end up with a backdoor licensing system for the press, which I think we are all keen to avoid. I think it meets that criterion.
On the so-called bad actors seeking to abuse that, I have listened to and read some of the evidence that you have had from others—not extensively, I must say, due to other commitments this week—and I think that it would be very hard for someone to meet all those criteria as set out in order to take advantage of this. I think that, as Matt has said, there will clearly be tests and challenges to that over time. It will rightly be challenged in court or go through the usual judicial process.
Matt Rogerson: It seems to me that the whole Bill will be an iterative process. The internet will not suddenly become safe when the Bill receives Royal Assent, so there will be this process whereby guidance and case law are developed, in terms of what a newspaper is, against the criteria. There are exemptions for news publishers in a whole range of other laws that are perfectly workable. I think that Ofcom is perfectly well equipped to create guidance that enables it to be perfectly workable.
Chris Philp
Q
Matt Rogerson: Subject to the guidance developed by Ofcom, which we will be engaged in developing, I do think so. The other thing to bear in mind is that the platforms already have lists of trusted publishers. For example, Google has a list in relation to Google News—I think it has about 65,000 publishers—which it automates to push through Google News as trusted news publishers. Similarly, Facebook has a list of trusted news publishers that it uses as a signal for the Facebook newsfeed. So I do not buy the idea that you can’t automate the use of trusted news sources within those products.
Chris Philp
Q
Owen Meredith: If I can speak to the point that directly relates to my members and those I represent, which is “Does it protect press freedom?”, which is perhaps an extension of your question, I would say that it is seeking to. Given the assurances you have given about the detailed amendments that you intend to bring forward—if those are correct, and I am very happy to write to the Committee and comment once we have seen the detail, if it would be helpful to do so—and everything I have heard about what you are intending to do, I believe it will. But I do not believe that the current draft properly and adequately protects press freedom, which is why, I think, you will be bringing forward amendments.
Chris Philp
Q
Owen Meredith: Subject to seeing the drafting, but I believe the intention—yes.
Chris Philp
Thank you. That is very helpful. Mr Rogerson?
Matt Rogerson: As we know, this is a world first: regulation of the internet, regulation of speech acts on the internet. From a news publisher perspective, I think all the principles are right in terms of what the Government are trying to do. In terms of free speech more broadly, a lot of it will come down to how the platforms implement the Bill in practice. Only time will tell in terms of the guidance that Ofcom develops and how the platforms implement that at vast scale. That is when we will see what impact the Bill actually has in practice.
Chris Philp
Q
Matt Rogerson: Yes. With the development of the online platforms to the dominant position they are in today, that will be a big step forward. The only thing I would add is that, as well as this Bill, the other Bill that will make a massive difference when it comes through is the digital markets unit Bill. We need competition to Facebook so that consumers have a choice and so that they can decide which social network they want to be on, not just the one dominant social network that is available to them in this country.
Chris Philp
I commend your ingenuity in levering an appeal for more digital competition into this discussion. Thank you.
Alex Davies-Jones
Q
Matt Rogerson: On the Russia Today problem, I think Russia Today had a licence from Ofcom, so the platforms probably took their cue from the fact that Russia Today was beamed into British homes via Freeview. Once that changed, the position of having their content available on social media changed as well. Ultimately, if it was allowed to go via broadcast, if it had a broadcast licence, I would imagine that social media companies took that as meaning that it was a—
Alex Davies-Jones
Q
Matt Rogerson: I think that would be subject to the guidance that Ofcom creates and the consultation on that guidance. I do not believe that Russia Today would be allowed under the definitions. If it is helpful, I could write to you to set out why.
The Chair
Mr Meredith, Mr Rogerson, thank you very much. If you have any further comments that you wish to make, you are free to put them in writing.
Examination of Witnesses
Tim Fassam, Rocio Concha and Martin Lewis gave evidence.
The Chair
We will now hear from Tim Fassam, the director of government relations and policy at PIMFA, the Personal Investment Management & Financial Advice Association, and from Rocio Concha, director of policy and advocacy at Which? We will be joined by Martin Lewis, of MoneySavingExpert, in due course. Thank you to the witnesses for joining us. I call the Opposition Front Bench.
Alex Davies-Jones
Q
Rocio Concha: This Bill is very important in tackling fraud. It is very important for Which? We were very pleased when fraud was included to tackle the issue that you mentioned and also when paid-for advertising was included. It was a very important step, and it is a very good Bill, so we commend DCMS for producing it.
However, we have found some weakness in the Bill, and those can be solved with very simple amendments, which will have a big impact on the Bill in terms of achieving its objective. For example, at the moment in the Bill, search engines such as Google and Yahoo! are not subject to the same duties in terms of protecting consumers from fraudulent advertising as social media platforms are. There is no reason for Google and Yahoo! to have weaker duties in the Bill, so we need to solve that.
The second area is booster content. Booster content is user-generated content, but it is also advertising. In the current definition of fraudulent advertising in the Bill, booster content is not covered. For example, if a criminal makes a Facebook page and starts publishing things about fake investments, and then he pays Facebook to boost that content in order to reach more people, the Bill, at the moment, does not cover that fraudulent advertising.
The last part is that, at the moment, the risk checks that platforms need to do for priority illegal content, the transparency reporting that they need to do to basically say, “We are finding this illegal content and this is what we are doing about it,” and the requirement to have a way for users to tell them about illegal content or complain about something that they are not doing to tackle this, only apply to priority illegal content. They do not apply to fraudulent advertising, but we think they need to.
Paid-for advertising is the most expensive way that criminals have to reach out to a lot of people. The good news, as I said before, is that this can be solved with very simple amendments to the Bill. We will send you suggestions for those amendments and, if we fix the problem, we think the Bill will really achieve its objective.
The Chair
One moment—I think we have been joined by Martin Lewis on audio. I hope you can hear us, Mr Lewis. You are not late; we started early. I will bring you in as soon as we have you on video, preferably, but otherwise on audio.
Tim Fassam: I would echo everything my colleague from Which? has said. The industry, consumer groups and the financial services regulators are largely in agreement. We were delighted to see fraudulent advertising and wider issues of economic crime included in the Bill when they were not in the initial draft. We would also support all the amendments that Which? are putting forward, especially the equality between search and social media.
Our members compiled a dossier of examples of fraudulent activity, and the overwhelming examples of fraudulent adverts were on search, rather than social media. We would also argue that search is potentially higher risk, because the act of searching is an indication that you may be ready to take action. If you are searching “invest my pension”, hopefully you will come across Martin’s site or one of our members’ sites, but if you come across a fraudulent advert in that moment, you are more likely to fall foul of it.
We would also highlight two other areas where we think the Bill needs further work. These are predominantly linked to the interaction between Ofcom, the police and the Financial Conduct Authority, because the definitions of fraudulent adverts and fraudulent behaviour are technical and complex. It is not reasonable to expect Ofcom to be able to ascertain whether an advert or piece of content is in breach of the Financial Services and Markets Act 2000; that is the FCA’s day job. Is it fraud? That is Action Fraud’s and the police’s day job. We would therefore suggest that the Bill go as far as allowing the police and the FCA to direct Ofcom to have content removed, and creating an MOU that enables Ofcom to refer things to the FCA and the police for their expert analysis of whether it breaches those definitions of fraudulent adverts or fraudulent activity.
Alex Davies-Jones
Q
Rocio Concha: Yes. Open-display advertising is not part of the Bill. That also needs to be tackled. I think the online advertising programme should be considered, to tackle this issue. I agree with you: this is a very important step in the right direction, and it will make a huge difference if we fix this small weakness in terms of the current scope. However, there are still areas out there that need to be tackled.
The Chair
Mr Lewis, I am living in hope that we may be able to see you soon—although that may be a forlorn hope. However, I am hoping that you can hear us. Do you want to come in and comment at all at this point? [Interruption.] Oh, we have got you on the screen. Thank you very much for joining us.
Martin Lewis: Hurrah. I am so sorry, everybody—for obvious reasons, it has been quite a busy day on other issues for me, so you’ll forgive me.
The Chair
I can’t think why it has been.
Martin Lewis: I certainly agree with the other two witnesses. Those three issues are all very important to be brought in. From a wider perspective, I was vociferously campaigning to have scam adverts brought within the scope of the Online Safety Bill. I am delighted that that has happened, but let us be honest among ourselves: it is far from a panacea.
Adverts and scams come in so many places—on social media, in search engines and in display advertising, which is very common and is not covered. While I accept that the online advertising programme will address that, if I had my way I would be bringing it all into the Online Safety Bill. However, the realpolitik is that that is not going to happen, so we have to have the support in the OAP coming later.
It is also worth mentioning just for context that, although I think there is little that we can do about this—or it would take brighter people than me—one of the biggest routes for scams is email. Everybody is being emailed—often with my face, which is deeply frustrating. We have flaccid policing of what is going on on social media, and I hope the Bill will improve it, but at least there is some policing, even though it is flaccid, and it is the same on search engines. There is nothing on email, so whatever we do in this Bill, it will not stop scams reaching people. There are many things that would improve that, certainly including far better resourcing for policing so that people who scam individuals get at least arrested and possibly even punished and sentenced. Of course, that does not happen at the moment, because scamming is a crime that you can undertake with near impunity.
There is a lot that needs to be done to make the situation work, but in general the moves in the Online Safety Bill to include scam advertising are positive. I would like to see search engines and display advertising brought into that. I absolutely support the call for the FCA to be involved, because what is and is not a scam can certainly be complicated. There are more obvious ones and less obvious ones. We saw that with the sale of bonds at 5% or 6%, which pretend to be deposit bonds but are nothing of the sort. That might get a bit more difficult for Ofcom, and it would be great to see the regulator involved. I support all the calls of the other witnesses, but we need to be honest with ourselves: even if we do all that, we are still a long way from seeing the back of all scam adverts and all scams.
Alex Davies-Jones
Q
Rocio Concha: To be honest, in this area we do not have any specific proposals. I completely agree with you that this is an area that needs to be tackled, but I do not have a specific proposal for this Bill.
Tim Fassam: This is an area that we have raised with the Financial Conduct Authority—particularly the trend for financial advice TikTok and adverts for non-traditional investments, such as whisky barrels or wine, which do not meet the standards required by the FCA for other investment products. That is also true of a number of cryptocurrency adverts and formats. We have been working with the FCA to try to identify ways to introduce more consistency in the application of the rule. There has been a welcome expansion by the Treasury on the promotion of high-risk investments, which is now a regulated activity in and of itself.
I go back to my initial point. We do not believe that there is any circumstance in which the FCA would want content in any place taken down where that content should not be removed, because they are the experts in identifying consumer harm in this space.
Alex Davies-Jones
Q
Martin Lewis: I still believe that most of this comes down to an issue of policing. The rules are there and are not being enforced strongly enough. The people who have to enforce the rules are not resourced well enough to do that. Therefore, you get people who are able to work around the rules with impunity.
Advertising in the UK, especially online, has been the wild west for a very long time, and it will continue to be so for quite a while. The Advertising Standards Authority is actually better at dealing with the influencer issue, because of course it is primarily strong at dealing with people who listen to the Advertising Standards Authority. It is not very good at dealing with criminal scammers based outside the European Union, who frankly cannot be bothered and will not reply—they are not going to stop—but it is better at dealing with influencers who have a reputation.
We all know it is still extremely fast and loose out there. We need to adequately resource it; putting rules and laws in place is only one step. Resourcing the policing and the execution of those rules and laws is a secondary step, and I have doubts that we will ever quite get there, because resources are always squeezed and put on the back burner.
The Chair
Thank you. Do I have any questions from Government Back Benchers? No. Does anyone have any further questions?
Alex Davies-Jones
Yes, I do. If nobody else has questions, I will have another bite of the cherry.
Alex Davies-Jones
Q
Martin Lewis: As you will know, I had to sue Facebook for defamation, which is a ridiculous thing to do in order to stop scam adverts. I was unable to report the scam adverts to the police, because I had not been scammed—even though it was my face that was in them—and many victims were not willing to come forward. That is a rather bizarre situation, and we got Facebook to put forward £3 million to set up Citizens Advice Scam Action—that is what I settled for, as well as a scam ad reporting tool.
There are two levels here. The problem is who is at fault. Of course, those mainly at fault for scams are the scammers. They are criminals and should be prosecuted, but not enough of them are. You have times when it is the bank’s fault. If a company has not put proper precautions in place, and people have got scammed because it has put up adverts or posts that it should have prevented, they absolutely need to have some responsibility for that. I think you will struggle to have a direct redress system put in place. I would like to see it, but it would be difficult.
It is rather interesting to me that I am worried that the £3 million for Citizens Advice Scam Action, which was at least meant to provide help and support for victims of scams, is going to run out. I have not seen any more money coming from Facebook, Google or any of the other big players out there. If we are not going to fund direct redress, we could at least make sure that they fund a collective form of redress and help for the victims of scams, as a bare minimum. It is very strange that these firms go so quiet on this, and what they say is, “We are doing everything we can.”
From my meetings with these firms—these are meetings with lawyers in the room, so I have to be slightly careful—one of the things that I would warn the Committee about is that they tend to get you in and give you a presentation on all the technological reasons why they cannot stop scam adverts. My answer to them after about 30 seconds, having stopped what was meant to be an hour-long presentation, is, “I have not framed the fact that you need a technological solution. I have said you need a solution. If the answer to stopping scam adverts, and to stopping scams, is that you have to pre-vet every single advert, as old-fashioned media did, and that every advert that you put up has to have been vetted by a human being, so be it. You’re making it a function of technology, but let’s be honest: this is a function of profitability.” We have to look at the profitability of these companies when it comes to redress. What your job is—if you forgive me saying this—is to make sure that it costs them more money to let people be scammed than it does to stop people being scammed. If we solve that, we will have a lot fewer scams on social media and on the search advertising.
Rocio Concha: I completely agree with everything that Martin says. At the moment, the provisions in the Bill for “priority illegal content” require the platforms to publish reports that say, “This is how much illegal content we are seeing on the platform, and these are the measures that we are going to take.” They are also required to have a way for users to report it and to complain when they think that the platforms are not doing the right thing. At the moment, that does not apply to fraudulent advertising, so you have an opportunity to fix that in the Bill very easily, to at least get the transparency out there. The platform has to say, “We are finding this”—that puts pressure on the platform, because it is there and is also with the regulator—“and these are the measures that we are taking.” That gives us transparency to say, “Are these measures enough?” There should also be an easy way for the user to complain when they think that platforms are not doing the right thing. It is a complex question, but there are many things in the Bill that you can improve in order to improve the situation.
Tim Fassam: I wonder if it would be useful to give the Committee a case study. Members may be familiar with London Capital & Finance. Now, London Capital & Finance is one of the most significant recent scams. It sold mini-bonds fraudulently, at a very high advertised return, which then collapsed, with individuals losing all their money.
Those individuals were compensated through two vehicles. One was a Government Bill; so, they were compensated by the taxpayer. The others, because they were found to have been given financial advice despite LCF not having advice permissions or operating through a regulated product, went on to the Financial Services Compensation Scheme, which, among others, our members pay for; legitimate financial services companies pay for it. The most recent estimate is over £650 million. The expectation is that that will reach £1 billion at some point over the next few years, in terms of cost to the economy.
LCF was heavily driven by online advertising, and we would argue that the online platforms were in fact probably the only people who could have stopped it happening. They have profited from those adverts and they have not contributed anything to either of those two schemes. We would argue—possibly not for this Bill—that serious consideration should be given to the tech platforms being part of the financial services compensation scheme architecture and contributing to the costs of scams that individuals have fallen foul of, as an additional incentive for them to get on top of this problem.
Martin Lewis: That is a very important point, but I will just pick up on what Rocio was saying. One of the things that I would like to see, as well as much more rigid requirements of how reporting scams can be put in place—because I cannot see proper pre-vetting happening with these technology companies, but we can at least rely on social policing and reporting of scams. There are many people who recognise a scam, just as there are many people who do not recognise a scam.
However, I also think this is a wonderful opportunity to make sure that the method, the language and the symbols used for reporting scams are universal in the UK, so that whatever site you are on, if you see an advert you click the same symbol, and the process is unified and universal, and works in a very similar way, so that you can report a scam the same way on every site, which makes it simpler, and we can train people in how to do it and we can make the processes work.
Then, of course, we have to make sure that they act on the back of reports, but simply the various ways it is reported, and the complexity, and the number of clicks that you need to make mean it is a lot easier generally to click on an advert than it is to click to report an advert that is a scam. And with so many scams out there, I think there should be a parity of ease between those two factors.
Caroline Ansell
Q
Rocio Concha: There were complaints from the users. At the moment, this Bill will not allow this for fraudulent advertising. So, we need to make sure that it is a requirement for the platforms to allow and to have an easy tool for people to complain and to report when they see something that is fraudulent. At the moment, the Bill does not do that. It is an easy fix; you can do it. And then the user will have that tool. It would also give us transparency for the regulator and for organisations such as ours, to see what is happening and to see what measures the platforms are taking.
Tim Fassam: I would agree with that. I would also highlight a particular problem that our members have flagged, and we have flagged directly with Meta and Instagram. Within the definition in the Bill of individuals who can raise concern about social media platforms, our members find they fall between two stools, because quite often what is happening is that people are claiming an association with a legitimate firm. So they will have a firm’s logo, or a firm’s web address, in their profile for their social media and then they will not directly claim to be a financial adviser but imply an association with a legitimate financial advice firm. This happens surprisingly frequently.
Our members find it incredibly difficult to get those accounts taken down, because it is not a fraudulent account; that individual is not pretending to be someone else and they are not the individual claiming pretence. They are not directly claiming to be an employee; they could just say they are a fan of the company. And they are not a direct victim of this individual. What happens is that when they report, it goes into a volume algorithm, and only if a very large number of complaints are made does that particular site get taken down. I think that could be expanded to include complaints from individuals affected by the account, rather than directly believing they are pretending to be that.
The Chair
Mr Lewis, you were nodding.
Martin Lewis: I was nodding—I was smiling and thinking, “If it makes you feel any better, Tim, I have pictures of me that tell people to invest money that are clearly fake, because I don’t do any adverts, and it still is an absolute pain in the backside for me to get them taken down, having sued Facebook.” So, if your members want to feel any sense of comradeship, they are not alone in this; it is very difficult.
I think the interesting thing is about that volumetric algorithm. Of course, we go back to the fact that these big companies like to err on the side of making money and err away from the side of protecting consumers, because those two, when it comes to scams, are diametrically opposed. The sooner we tidy it up, the better. You could have a process where once there has been a certain number of reports—I absolutely get Tim’s point that in certain cases there is not a big enough volume—the advert is taken down and then the company has to proactively decide to put it back up and effectively say, “We believe this is a valid advert.” Then the system would certainly work better, especially if you bring down the required number of reports. At the moment, I think, there tends to be an erring on the side of, “Keep it up as long as it’s making us money, unless it absolutely goes over the top.”
Many tech experts have shown me adverts with my face in on various social media platforms. They say it would take them less than five minutes to write a program to screen them out, but those adverts continue to appear. We just have to be conscious here that—there is often a move towards self-regulation. Let me be plain, as I am giving evidence. I do not trust any of these companies to have the user and the consumer interest at heart when it comes to their advertising; what they have at heart is their own profits, so if we want to stop them, we have to make this Bill robust enough to stop them, because that is the only way it will stop. Do not rely on them trying to do good, because they are trying to make profit and they will err on the side of that over the side of protecting individuals from scam adverts.
Kim Leadbeater
Q
Tim Fassam: I believe that would be helpful. I think Ofcom is the right organisation to manage the relationship with the platforms, because it is going to be much broader than the topics we are talking about in our session, but we do think the FCA, Action Fraud and potentially the CMA should be able to direct, and be very clear with Ofcom, that action needs to be taken. Ofcom should have the ability to ask for things to be reviewed to see whether they break the rules.
The other area where we think action probably needs to be taken is where firms are under investigation, because the Bill assumes it is clear cut whether something is fraud, a scam, a breach of the regulations or not. In some circumstances, that can take six months or a year to establish through investigation. We believe that if, for example, the FCA feels that something is high risk, it should be able to ask Ofcom to suspend an advert, or a firm from advertising, pending an investigation to assess whether it is a breach of the regulation.
Rocio Concha: I agree that Ofcom is the right regulator, the main regulator, but it needs to work with the other regulators—with the FCA, ASA and CMA—to enforce the Bill effectively. There is another area. Basically, we need to make sure that Ofcom and all the regulators involved have the right resources. When the initial version of the Bill was published, Ofcom got additional resources to enable it to enforce the Bill. But the Bill has increased in scope, because now it includes fraud and fraudulent advertising. We need to make sure that Ofcom has the right resources to enforce the full Bill effectively. That is something that the Government really need to consider.
Martin Lewis: I was going to make exactly that point, but it has just been made brilliantly so I will not waste your time.
Chris Philp
Q
I will start by agreeing with the point that Martin Lewis made a minute or two ago—that we cannot trust these companies to work on their own. Mr Lewis, I am not sure whether you have had a chance to go through clause 34, which we inserted into the Bill following your evidence to the Joint Committee last year. It imposes a duty on these companies to take steps and implement systems to
“prevent individuals from encountering content consisting of fraudulent advertisements”.
There is a clear duty to stop them from doing this, rather as you were asking a minute ago when you described the presentation. Does that strong requirement in clause 34, to stop individuals from encountering fraudulent advertisement content, meet the objective that you were asking for last year?
Martin Lewis: Let me start by saying that I am very grateful that you have put it in there and thankful that the Government have listened to our campaign. What I am about to say is not intended as criticism.
It is very difficult to know how this will work in practice. The issue is all about thresholds. How many scam adverts can we stomach? I still have, daily—even from the platform that I sued, never mind the others—tens of reports directly to me of scam adverts with my face on. Even though there is a promise that we will try to mitigate that, the companies are not doing it. We have to have a legitimate understanding that we are not going to have zero scam adverts on these platforms; unless they were to pre-vet, which I do not think they will, the way they operate means that will not happen.
I am not a lawyer but my concern is that the Bill should make it clear, and that any interpretation of the Bill from Ofcom should be clear, about exactly what threshold of scam adverts is acceptable—we know that they are going to happen—and what threshold is not acceptable. I do not have the expertise to answer your question; I have to rely on your expertise to do that. But I ask the Committee to think properly about what the threshold level should be.
What is and is not acceptable? What counts as “doing everything they can”? They are going to get big lawyers involved if you say there must be zero scam adverts—that is not going to happen. How many scam adverts are acceptable and how many are not? I am so sorry to throw that back as a question when I am a witness, but I do not have the expertise to answer. But that is my concern: I am not 100% convinced of the threshold level that you are setting.
The Chair
Q
Tim Fassam: I think we are positive about the actions that have been taken regarding social media; our concern is that the clause is not applied to search and that it excludes paid-for ads that are also user-generated content—promoted tweets or promoted posts, for example. We would ensure that that applied to all paid-for adverts and that it was consistent between social media and search.
Chris Philp
Q
Tim Fassam: You absolutely do, but to a weaker standard than in clause 34.
Chris Philp
Q
Tim Fassam: Thank you.
Chris Philp
Q
The Chair
Mr Lewis, as you were named, I think you had better start.
Martin Lewis: Ten per cent. of the global revenue of a major social media or search player is a lot of money—it certainly would hit them in the pocket. I reiterate my previous point: it is all about the threshold at which that comes in and how rigidly Ofcom is enforcing it. There are very few organisations that have the resources, legally, to take on big institutions of state, regulators and Governments. If any does, it is the gigantic tech firms. Absolutely, 10% of global revenue sounds like a suitable wall to prevent them jumping over. That is the aim, because we want those companies to work for people; we don’t want them to do scam adds. We want them to work well and we want them never to be fined because is no reason to fine them.
The proof of the pudding will be in how robust Ofcom feels it can be, off the back of the Bill, taking those companies on. I go back to needing to understand how many scam ads you permit under the duty to prevent scam ads. It clearly is not zero—you are not going to tell me it is zero. So how many are allowed, what are the protocols that come into place and how quickly do they have to take the ads down? Ultimately, I think that is going to be a decision for Ofcom, but it is the level of stringency that you put on Ofcom in order for it to interpret how it takes that decision that is going to decide whether this works or not.
Rocio Concha: I completely agree with Martin. Ofcom needs to have the right resources in order to monitor how the platforms are doing that, and it needs to have the right powers. At the moment, Ofcom can ask for information in a number of areas, including fraud, but not advertising. We need to make sure that Ofcom can ask for that information so that it can monitor what the platforms are doing. We need to make sure that it has the right powers and the right resources to enforce the Bill effectively.
Tim Fassam: You would hope that 10% would certainly be a significant disincentive. Our focus would be on whether companies are contributing to compensating the victims of fraud and scams, and whether they have been brought into the architecture that is utilised to compensate victims of fraud and scams. That would be the right aim in terms of financial consequences for the firms.
Chris Philp
Q
Secondly, clauses 140 and 141 contain a procedure for so-called super-complaints, where a body that represents users—it could be Which? or an organisation like it—is able to bring something almost like a class action or group complaint to Ofcom if it thinks a particular social media firm has systemic problems. Will those two clauses address the issue of complaints not being properly handled or, in some cases, not being dealt with at all?
Martin Lewis: Everything helps. I think the super-complaint point is really important. We must remember that many victims of scams are not so good at complaining and, by the nature of the crossover of individuals, there is a huge mental health issue at stake with scams. There is both the impact on people with mental health issues and the impact on people’s mental health of being scammed, which means that they may not be as robust and up for the fight or for complaining. As long as it works and applies to all the different categories that are repeated here, the super-complaint status is a good measure.
We absolutely need proper reporting lines. I urge you, Minister—I am not sure that this is in the Bill—to standardise this so that we can talk about what someone should do when they report: the same imagery, the same button. With that, people will know what to do. The more we can do that, the easier and better the system will be.
Chris Philp
Q
“easy to access, easy to use (including by children) and transparent.”
The previous paragraph (b) states that the system must
“provides for appropriate action to be taken by the provider of the service in response to complaints of a relevant kind”.
The Bill is saying that a complaints process must do those two things, because if it does not, Ofcom will be on the company’s back.
Martin Lewis: I absolutely support all of that. I am just pushing for that tiny bit more leadership, whether it is from you or Ofcom, that comes up with a standardised system with standardised imagery and placing, so that everybody knows that on the top left of the advert you have the button that you click to fill in a form to report it. The more we have that cross-platform and cross-search and cross-social media, the easier it will be for people. I am not sure it is a position for the Bill in itself, but Government leadership would work really well on that.
Tim Fassam: They are both welcome—the super-complaint and the new complaints process. We want to ensure that we have a system that looks not just at weight of number of complaints, but at the content. In particular, you may find on the super-complaint point that, for example, the firm that a fraudster is pretending to be is the organisation that has the best grasp of the issue, so do not forget about commercial organisations as well as consumer organisations when thinking about who is appropriate to make super-complaints.
Chris Philp
Q
Tim Fassam: Absolutely. We suggested to Meta when we met them about 18 months ago that we could be a clearing house to identify for them whether they need to take something seriously, because our members have analysed it and consider it to represent a real risk.
The Chair
Last word to Rocio Concha.
Rocio Concha: I completely agree about the super-complaint. We as a consumer organisation have super-complaint powers. As with other regulators, we would like to have it in this context as well. We have done many super-complaints representing consumers in particular areas with the regulators, so I think we need it in this Bill as well.
On reporting, I want to clarify something. At the moment, the Bill does not have a requirement for users to complain and report to platforms in relation to fraudulent advertising. It happens for priority illegal content, but our assessment of the Bill is that it is unclear whether it applies to fraudulent advertising. We probably do not have time to look at this now, but we sent you amendments to where we thought the Bill had weaknesses. We agree with you that users should have an easy and transparent way to report illegal or fraudulent advertising, and they should have an easy way to complain about it. At the moment, it is not clear that the Bill will require that for fraudulent advertising.
Chris Philp
Q
Rocio Concha: My comment was in relation not to the super-complaints but to the requirements. We already sent you our comments with suggestions on how you can fix this in the Bill.
The Chair
Ms Concha and Mr Fassam, thank you very much. Do please write in if you have further comments. Mr Lewis, we are deeply grateful to you. You can now go back to your day job and tell us whether we are going to be worse or better off as a result of the statement today—please don’t answer that now.
Martin Lewis: I am interviewing the Chancellor in 15 minutes.
The Chair
We now have Frances Haugen, a former Facebook employee. Thank you for joining us.
Alex Davies-Jones
Q
Frances Haugen: Thank you so much for inviting me.
Alex Davies-Jones
No problem. Could you give us a brief overview of how, in your opinion, platforms such as Meta will be able to respond to the Bill if it is enacted in its current form?
Frances Haugen: There are going to be some pretty strong challenges in implementing the Bill as it is currently written. I want to be really honest with you about the limitations of artificial intelligence. We call it artificial intelligence, but people who actually build these systems call it machine learning, because it is not actually intelligent. One of the major limitations in the Bill is that there are carve-outs, such as “content of democratic importance”, that computers will not be able to distinguish. That might have very serious implications. If the computers cannot differentiate between whether something is or is not hate speech, imagine a concept even more ambiguous that requires even more context, such as defining what is of democratic importance. If we have carve-outs like that, it may actually prevent the platforms from doing any content moderation, because they will never know whether a piece of content is safe or not safe.
Alex Davies-Jones
Q
Frances Haugen: I think it is unacceptable that large corporations such as this do not answer very basic questions. I guarantee you that they know exactly how many moderators they have hired—they have dashboards to track these numbers. The fact that they do not disclose those numbers shows why we need to pass laws to have mandatory accountability. The role of moderators is vital, especially for things like people questioning judgment decisions. Remember, no AI system is going to be perfect, and one of the major ways people can have accountability is to be able to complain and say, “This was inaccurately judged by a computer.” We need to ensure that there is always enough staffing and that moderators can play an active role in this process.
Alex Davies-Jones
Q
Frances Haugen: All industries that live in democratic societies must live within democratic processes, so I do believe that it is absolutely essential that we the public, through our democratic representatives like yourself, have mandatory transparency. The only two other paths I currently see towards getting any transparency out of Meta, because Meta has demonstrated that it does not want to give even the slightest slivers of data—for example, how many moderators there are—are via ESG, so we can threaten then with divestment by saying, “Prosocial companies are transparent with their data,” and via litigation. In the United States, sometimes we can get data out of these companies through the discovery process. If we want consistent and guaranteed access to data, we must put it in the Bill, because those two routes are probabilistic—we cannot ensure that we will get a steady, consistent flow of data, which is what we need to have these systems live within a democratic process.
Mrs Miller
Q
Frances Haugen: I am not well versed on the exact provisions in the Bill regarding child safety. What I can say is that one of the most important things that we need to have in there is transparency around how the platforms in general keep children under the age of 13 off their systems—transparency on those processes—because we know that Facebook is doing an inadequate job. That is the single biggest lever in terms of child safety.
I have talked to researchers at places like Oxford and they talk about how, with social media, one of the critical windows is when children transition through puberty, because they are more sensitive on issues, they do not have great judgment yet and their lives are changing in really profound ways. Having mandatory transparency on what platforms are doing to keep kids off their platforms, and the ability to push for stronger interventions, is vital, because keeping kids off them until they are at least 13, if not 16, is probably the biggest single thing we can do to move the ball down the field for child safety.
Mrs Miller
Q
Frances Haugen: Specifically for children or across the whole platform?
Mrs Miller
Specifically for children.
Frances Haugen: I will give you an example. Facebook has estimated ages for every single person on the platform, because the reality is that lots of adults also lie about their ages when they join, and advertisers want to target very specific demographics—for example, if you are selling a kit for a 40th birthday, you do not want to mis-target that by 10 years. Facebook has estimated ages for everyone on the platform. It could be required to publish every year, so that we could say, “Hey, there are four kids on the platform who you currently believe, using your estimated ages, are 14 years old—based not on how old they say they are, but on your estimate that this person is 14 years old. When did they join the platform? What fraction of your 14-year-olds have been on the platform since they were 10?” That is a vital statistic.
If the platforms were required to publish that every single quarter, we could say, “Wow! You were doing really badly four years ago, and you need to get a lot better.” Those kinds of lagging metrics are a way of allowing the public to grade Facebook’s homework, instead of just trusting Facebook to do a good job.
Facebook already does analyses like this today. They already know that on Facebook Blue, for example, for some age cohorts, 20% of 11-year-olds were on the platform—and back then, not that many kids were online. Today, I would guess a much larger fraction of 11-year-olds are on Instagram. We need to have transparency into how badly they are doing their jobs.
Kim Leadbeater
Q
Frances Haugen: It is vital to get into the statute minimum standards for things such as risk assessments and codes of conduct. Facebook has demonstrated time and again—the reality is that other social media platforms have too—that it does the bare minimum to avoid really egregious reputational damage. It does not ensure the level of quality needed for public safety. If you do not put that into the Bill, I worry that it will be watered down by the mountains of lobbyists that Facebook will throw at this problem.
Kim Leadbeater
Q
Frances Haugen: I want to reiterate that AI struggles to do even really basic tasks. For example, Facebook’s own document said that it only took down 0.8% of violence-inciting content. Let us look at a much broader category, such as content of democratic importance—if you include that in the Bill, I guarantee you that the platforms will come back to you and say that they have no idea how to implement the Bill. There is no chance that AI will do a good job of identifying content of democratic importance at any point in the next 30 years.
The second question is about carve-outs for media. At a minimum, we need to greatly tighten the standards for what counts as a publication. Right now, I could get together with a friend and start a blog and, as citizen journalists, get the exact same protections as an established, thoughtful, well-staffed publication with an editorial board and other forms of accountability. Time and again, we have seen countries such as Russia use small media outlets as part of their misinformation and disinformation strategies. At a minimum, we need to really tighten that standard.
We have even seen situations where they will use very established publications, such as CNN. They will take an article that says, “Ukrainians destroyed a bunch of Russian tanks,” and intentionally have their bot networks spread that out. They will just paste the link and say, “Russia destroyed a bunch of tanks.” People briefly glance at the snippet, they see the picture of the tank, they see “CNN”, and they think, “Ah, Russia is winning.” We need to remember that even real media outlets can be abused by our enemies to manipulate the public.
Caroline Ansell
Q
Frances Haugen: It is important for people to understand what anonymity really is and what it would really mean to have confirmed identities. Platforms already have a huge amount of data on their users. We bleed information about ourselves on to these platforms. It is not about whether the platforms could identify people to the authorities; it is that they choose not to do that.
Secondly, if we did, say, mandate IDs, platforms would have two choices. The first would be to require IDs, so that every single user on their platform would have to have an ID that is verifiable via a computer database—you would have to show your ID and the platform would confirm it off the computer. Platforms would suddenly lose users in many countries around the world that do not have well-integrated computerised databases. The platforms will come back to you and say that they cannot lose a third or half of their users. As long as they are allowed to have users from countries that do not have those levels of sophisticated systems, users in the UK will just use VPNs—a kind of software that allows you to kind of teleport to a different place in the world—and pretend to be users from those other places. Things such as ID identification are not very effective.
Lastly, we need to remember that there is a lot of nuance in things like encryption and anonymity. As a whistleblower, I believe there is a vital need for having access to private communications, but I believe we need to view these things in context. There is a huge difference between, say, Signal, which is open source and anyone in the world can read the code for it—the US Department of Defence only endorses Signal for its employees, because it knows exactly what is being used—and something like Messenger. Messenger is very different, because we have no idea how it actually works. Facebook says, “We use this protocol,” but we cannot see the code; we have no idea. It is the same for Telegram; it is a private company with dubious connections.
If people think that they are safe and anonymous, but they are not actually anonymous, they can put themselves at a lot of risk. The secondary thing is that when we have anonymity in context with more sensitive data—for example, Instagram and Facebook act like directories for finding children—that is a very different context for having anonymity and privacy from something like Signal, where you have to know someone’s phone number in order to contact them.
These things are not cut-and-dried, black-or-white issues. I think it is difficult to have mandatory identity. I think it is really important to have privacy. We have to view them in context.
Chris Philp
Q
Frances Haugen: I think that shows a commendable level of chutzpah. Researchers have been trying to get really basic datasets out of Facebook for years. When I talk about a basic dataset, it is things as simple as, “Just show us the top 10,000 links that are distributed in any given week.” When you ask for information like that in a country like the United States, no one’s privacy is violated: every one of those links will have been viewed by hundreds of thousands, if not millions of people. Facebook will not give out even basic data like that, even though hundreds if not thousands of academics have begged for this data.
The idea that they have worked in close co-operation with researchers is a farce. The only way that they are going to give us even the most basic data that we need to keep ourselves safe is if it is mandated in the Bill. We need to not wait two years after the Bill passes—and remember, it does not even say that it will happen; Ofcom might say, “Oh, maybe not.” We need to take a page from the Digital Services Act and say, “On the day that the Bill passes, we get access to data,” or, at worst, “Within three months, we are going to figure out how to do it.” It needs to be not, “Should we do it?” but “How will we do it?”
Chris Philp
Q
Frances Haugen: First, I left the company a year ago. Because we have no transparency with these companies, they do not have to publish their algorithms or the consequences of their algorithms, so who knows? Maybe they use astrology now to rank the content. We have no idea. All I know is that Meta definitely still uses signals—did users click on it, did they dwell on it, did they re-share it, or did they put a comment on it? There is no way it is not using those. It is very unlikely that they do not still use engagement in their ranking.
The secondary question is, do they optimise for engagement? Are they trying to maximise it? It is possible that they might interpret that and say, “No, we have multiple things we optimise for,” because that is true. They look at multiple metrics every single time they try to decide whether or not to shift things. But I think it is very likely that they are still trying to optimise for engagement, either as their top metric or as one of their top metrics.
Remember, Meta is not trying to optimise for engagement to keep you there as long as possible; it is optimising for engagement to get you and your friends to produce as much content as possible, because without content production, there can be no content consumption. So that is another thing. They might say, “No, we are optimising for content production, not engagement,” but that is one step off.
Chris Philp
Q
Frances Haugen: I have a feeling that there is going to be a period of growing pains after the first time these risk assessments happen. I can almost entirely guarantee you that Facebook will try to give you very little. It will likely be a process of back and forth with the regulator, where you are going to have to have very specific standards for the level of transparency, because Facebook is always going to try to give you the least possible.
One of the things that I am actually quite scared about is that, in things like the Digital Services Act, penalties go up to 10% of global profits. Facebook as a company has something like 35% profit margins. One of the things I fear is that these reports may be so damning— that we have such strong opinions after we see the real, hard consequences of what they are doing—that Facebook might say, “This isn’t worth the risk. We’re just going to give you 10% of our profits.” That is one of the things I worry about: that they may just say, “Okay, now we’re 25% profitable instead of 35% profitable. We’re that ashamed.”
Chris Philp
Q
Frances Haugen: Oh, good. That’s wonderful.
Chris Philp
We had a case last year where Facebook—it was actually Facebook—failed to provide some information to the CMA in a takeover case, and it paid a £50 million fine rather than provide the information, hence the provision for personal criminal liability for failing to provide information that is now in this Bill.
My final question is a simple one. From your perspective, at the moment, when online tech companies are making product design decisions, what priority do they give to safety versus profit?
Frances Haugen: What I saw when I was at Facebook was that there was a culture that encouraged people to always have the most positive interpretation of things. If things are still the same as when I left—like I said, I do not know; I left last May—what I saw was that people routinely had to weigh little changes in growth versus changes in safety metrics, and unless they were major changes in safety metrics, they would continue to pursue growth. The only problem with a strategy like that is that those little deficits add up to very large harms over time, so we must have mandated transparency. The public have to have access to data, because unless Facebook has to add the public cost of the harm of its products, it is not going to prioritise enough those little incremental harms as they add up.
The Chair
Ms Haugen, thank you very much indeed for joining us today, and thank you also for the candour with which you have answered your questions. We are very grateful to you indeed.
The Committee will meet again on Tuesday 7 June at 9.25 am for the start of its line-by-line consideration of the Bill. That session will be in Committee Room 14.
Ordered, That further consideration be now adjourned. —(Steve Double.)
Online Safety Bill (Fifth sitting)
Tuesday 7th June 2022
(3 years, 7 months ago)
Public Bill CommitteesOnline Safety Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 7 June 2022 - (7 Jun 2022)
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Chair
Good morning, ladies and gentleman. If anybody wishes to take their jacket off, they are at liberty to do so when I am in the Chair—my co-Chairman is joining us, and I am sure she will adopt the same procedure. I have a couple of preliminary announcements. Please make sure that all mobile phones are switched off. Tea and coffee are not allowed in the Committee, I am afraid. I think they used to be available outside in the corridor, but I do not know whether that is still the case.
We now start line-by-line consideration of the Bill. The selection and grouping list for the sitting is available on the table in the room for anybody who does not have it. It shows how the clauses and selected amendments have been grouped for debate. Grouped amendments are generally on the same subject or a similar issue.
Now for a slight tutorial to remind me and anybody else who is interested, including anybody who perhaps has not engaged in this arcane procedure before, of the proceedings. Each group has a lead amendment, and that amendment is moved first. The other grouped amendments may be moved later, but they are not necessarily voted on at that point, because some of them relate to matters that appear later in the Bill. Do not panic; that does not mean that we have forgotten them, but that we will vote on them—if anybody wants to press them to a Division—when they are reached in order in the Bill. However, if you are in any doubt and feel that we have missed something—occasionally I do; the Clerks never do—just let us know. I am relaxed about this, so if anybody wants to ask a question about anything that they do not understand, please interrupt and ask, and we will endeavour to confuse you further.
The Member who has put their name to the lead amendment, and only the lead amendment, is usually called to speak first. At the end of the debate, the Minister will wind up, and the mover of the lead amendment—that might be the Minister if it is a Government amendment, or it might be an Opposition Member—will indicate whether they want a vote on that amendment. We deal with that first, then we deal with everything else in the order in which it arises. I hope all that is clear, but as I said, if there are any questions, please interrupt and ask.
We start consideration of the Bill with clause 1, to which there are no amendments. Usually, the Minister would wind up at the end of each debate, but as there are no amendments to clause 1, the Minister has indicated that he would like to say a few words about the clause.
Clause 1
Overview of Act
Question proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)
Thank you, Sir Roger; it is a pleasure to serve under your chairmanship once again. It may be appropriate to take this opportunity to congratulate my right hon. Friend the Member for Basingstoke on her damehood in the Queen’s birthday honours, which was very well deserved indeed.
This simple clause provides a high-level overview of the different parts of the Bill and how they come together to form the legislation.
The Chair
The Minister was completely out of order in congratulating the right hon. Lady, but I concur with him. I call the shadow Minister.
Alex Davies-Jones (Pontypridd) (Lab)
Thank you, Sir Roger; it is a genuine privilege and an honour to serve under your chairship today and for the duration of the Committee. I concur with congratulations to the right hon. Member for Basingstoke and I, too, congratulate her.
If you would indulge me, Sir Roger, this is the first time I have led on behalf of the Opposition in a Bill Committee of this magnitude. I am very much looking forward to getting my teeth stuck into the hours of important debate that we have ahead of us. I would also like to take this opportunity to place on record an early apology for any slight procedural errors I may inadvertently make as we proceed. However, I am very grateful to be joined by my hon. Friend the Member for Worsley and Eccles South, who is much more experienced in these matters. I place on record my grateful support to her. Along with your guidance, Sir Roger, I expect that I will quickly pick up the correct parliamentary procedure as we make our way through this colossal legislation. After all, we can agree that it is a very important piece of legislation that we all need to get right.
I want to say clearly that the Opposition welcome the Bill in principle; the Minister knows that, as we voted in favour of it at Second Reading. However, it will come as no surprise that we have a number of concerns about areas where we feel the Bill is lacking, which we will explore further. We have many reservations about how the Bill has been drafted. The structure and drafting pushes services into addressing harmful content—often in a reactive, rather than proactive, way—instead of harmful systems, business models and algorithms, which would be a more lasting and systemic approach.
Despite that, we all want the Bill to work and we know that it has the potential to go far. We also recognise that the world is watching, so the Opposition look forward to working together to do the right thing, making the internet a truly safe space for all users across the UK. We will therefore not oppose clause 1.
Dan Carden (Liverpool, Walton) (Lab)
It is a pleasure to serve on the Committee. I want to apologise for missing the evidence sessions. Unfortunately, I came down with covid, but I have been following the progress of the Committee.
This is important legislation. We spend so much of our lives online these days, yet there has never been an attempt to regulate the space, or for democratically elected Members to contribute towards its regulation. Clause 1 gives a general outline of what to expect in the Bill. I have no doubt that this legislation is required, but also that it will not get everything right, and that it will have to change over the years. We may see many more Bills of this nature in this place.
I have concerns that some clauses have been dropped, and I hope that there will be future opportunities to amend the Bill, not least with regard to how we educate and ensure that social media companies promote media literacy, so that information that is spread widely online is understood in its context—that it is not always correct or truthful. The Bill, I hope, will go some way towards ensuring that we can rely more on the internet, which should provide a safer space for all its users.
Dame Maria Miller (Basingstoke) (Con)
May I join others in welcoming line-by-line scrutiny of the Bill? I am sure that the Minister will urge us to ensure that we do not make the perfect the enemy of the good. This is a very lengthy and complex Bill, and a great deal of time and scrutiny has already gone into it. I am sure that we will all pay due regard to that excellent work.
The hon. Member for Pontypridd is absolutely right to say that in many ways the world is watching what the Government are doing regarding online regulation. This will set a framework for many countries around the world, and we must get it right. We are ending the myth that social media and search engines are not responsible for their content. Their use of algorithms alone demonstrates that, while they may not publish all of the information on their sites, they are the editors at the very least and must take responsibility.
We will no doubt hear many arguments about the importance of free speech during these debates and others. I would like gently to remind people that there are many who feel that their free speech is currently undermined by the way in which the online world operates. Women are subject to harassment and worse online, and children are accessing inappropriate material. There are a number of areas that require specific further debate, particularly around the safeguarding of children, adequate support for victims, ensuring that the criminal law is future-proof within this framework, and ensuring that we pick up on the comments made in the evidence sessions regarding the importance of guidance and codes of practice. It was slightly shocking to hear from some of those giving evidence that the operators did not know what was harmful, as much has been written about the harm caused by the internet.
I will listen keenly to the Minister’s responses on guidance and codes of practice, and secondary legislation more generally, because it is critical to how the Bill works. I am sure we will have many hours of interesting and informed debate on this piece of legislation. While there has already been a great deal of scrutiny, the Committee’s role is pivotal to ensure that the Bill is as good as it can be.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Key Definitions
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clause 3 stand part.
That schedules 1 and 2 be the First and Second schedules to the Bill.
Clause 4 stand part.
Alex Davies-Jones
We do not oppose clauses 2, 3 or 4, or the intentions of schedules 1 and 2, and have not sought to amend them at this stage, but this is an important opportunity to place on record some of the Opposition’s concerns as the Bill proceeds.
The first important thing to note is the broadness in the drafting of all the definitions. A service has links to the UK if it has a significant number of users in the UK, if the UK users are a target market, or if
“there are reasonable grounds to believe there is a material risk of significant harm to individuals”
in the UK using the service. Thus, territorially, a very wide range of online services could be caught. The Government have estimated in their impact assessment that 25,100 platforms will be in scope of the new regime, which is perhaps a conservative estimate. The impact assessment also notes that approximately 180,000 platforms could potentially be considered in scope of the Bill.
The provisions on extraterritorial jurisdiction are, again, extremely broad and could lead to some international platforms seeking to block UK users in a way similar to that seen following the introduction of GDPR. Furthermore, as has been the case under GDPR, those potentially in scope through the extraterritorial provisions may vigorously resist attempts to assert jurisdiction.
Notably absent from schedule 1 is an attempt to include or define how the Bill and its definitions of services that are exempt may adapt to emerging future technologies. The Minister may consider that a matter for secondary legislation, but as he knows, the Opposition feel that the Bill already leaves too many important matters to be determined at a later stage via statutory instruments. Although it good to see that the Bill has incorporated everyday internet behaviour such as a like or dislike button, as well as factoring in the use of emojis and symbols, it fails to consider how technologies such as artificial intelligence will sit within the framework as it stands.
It is quite right that there are exemptions for everyday user-to-user services such as email, SMS, and MMS services, and an all-important balance to strike between our fundamental right to privacy and keeping people safe online. That is where some difficult questions arise on platforms such as WhatsApp, which are embedded with end-to-end encryption as a standard feature. Concerns have been raised about Meta’s need to extend that feature to Instagram and Facebook Messenger.
The Opposition also have concerns about private messaging features more widely. Research from the Centre for Missing and Exploited Children highlighted the fact that a significant majority of online child abuse takes place in private messages. For example, 12 million of the 18.4 million child sexual abuse reports made by Facebook in 2019 related to content shared on private channels. Furthermore, recent data from the Office for National Statistics shows that private messaging plays a central role in contact between children and people they have not met offline before. Nearly three quarters—74%—of cases of children contacted by someone they do not know initially take place by private message. We will address this issue further in new clause 20, but I wanted to highlight those exemptions early on, as they are relevant to schedule 1.
On a similar point, we remain concerned about how emerging online systems such as the metaverse have had no consideration in Bill as it stands. Only last week, colleagues will have read about a researcher from a non- profit organisation that seeks to limit the power of large corporations, SumOfUs, who claimed that she experienced sexual assault by a stranger in Meta’s virtual reality space, Horizon Worlds. The organisation’s report said:
“About an hour into using the platform, a SumOfUs researcher was led into a private room at a party where she was raped by a user who kept telling her to turn around so he could do it from behind while users outside the window could see—all while another user in the room watched and passed around a vodka bottle.”
There is currently no clear distinction about how these very real technologies will sit in the Bill more widely. Even more worryingly, there has been no consideration of how artificial intelligence systems such as Horizon Worlds, with clear user-to-user functions, fit within the exemptions in schedule 1. If we are to see exemptions for internal business services or services provided by public bodies, along with many others, as outlined in the schedule, we need to make sure that the exemptions are fit for purpose and in line with the rapidly evolving technology that is widely available overseas. Before long, I am sure that reality spaces such as Horizon Worlds will become more and more commonplace in the UK too.
I hope that the Minister can reassure us all of his plans to ensure that the Bill is adequately future-proofed to cope with the rising expansion of the online space. Although we do not formally oppose the provisions outlined in schedule 1, I hope that the Minister will see that there is much work to be done to ensure that the Bill is adequately future-proofed to ensure that the current exemptions are applicable to future technologies too.
Turning to schedule 2, the draft Bill was hugely lacking in provisions to tackle pornographic content, so it is a welcome step that we now see some attempts to tackle the rate at which pornographic content is easily accessed by children across the country. As we all know, the draft Bill only covered pornography websites that allow user-generated content such as OnlyFans. I am pleased to see that commercial pornography sites have now been brought within scope. This positive step forward has been made possible thanks to the incredible efforts of campaigning groups, of which there are far too many to mention, and from some of which we took evidence. I pay tribute to them today. Over the years, it is thanks to their persistence that the Government have been forced to take notice and take action.
Once again—I hate to repeat myself—I urge the Minister to consider how far the current definitions outlined in schedule 2 relating to regulated provider pornographic content will go to protect virtual technologies such as those I referred to earlier. We are seeing an increase in all types of pornographic and semi-pornographic content that draws on AI or virtual technology. An obvious example is the now thankfully defunct app that was making the rounds online in 2016 called DeepNude. While available, the app used neural networks to remove clothing from images of women, making them look realistically nude. The ramifications and potential for technology like this to take over the pornographic content space is essentially limitless.
I urge the Minister carefully to keep in mind the future of the online space as we proceed. More specifically, the regulation of pornographic content in the context of keeping children safe is an area where we can all surely get on board. The Opposition have no formal objection at this stage to the provisions outlined in schedule 2.
Kirsty Blackman (Aberdeen North) (SNP)
Thank you, Sir Roger, for chairing our sittings. It is a pleasure to be part of this Bill Committee. I have a couple of comments on clause 2 and more generally.
The Opposition spokesperson, the hon. Member for Pontypridd, made some points about making sure that we are future-proofing the Bill. There are some key issues where we need to make sure that we are not going backwards. That particularly includes private messaging. We need to make sure that the ability to use AI to find content that is illegal, involving child sexual abuse for example, in private messages is still included in the way that it is currently and that the Bill does not accidentally bar those very important safeguards from continuing. That is one way in which we need to be clear on the best means to go forward with the Bill.
Future-proofing is important—I absolutely agree that we need to ensure that the Bill either takes into account the metaverse and virtual reality or ensures that provisions can be amended in future to take into account the metaverse, virtual reality and any other emerging technologies that we do not know about and cannot even foresee today. I saw a meme online the other day that was somebody taking a selfie of themselves wearing a mask and it said, “Can you imagine if we had shown somebody this in 1995 and asked them what this was? They wouldn’t have had the faintest idea.” The internet changes so quickly that we need to ensure that the Bill is future-proofed, but we also need to make sure that it is today-proofed.
I still have concerns, which I raised on Second Reading, about whether the Bill adequately encompasses the online gaming world, where a huge number of children use the internet—and where they should use it—to interact with their friends in a safe way. A lot of online gaming is free from the bullying that can be seen in places such as WhatsApp, Snapchat and Instagram. We need to ensure that those safeguards are included for online gaming. Private messaging is a thing in a significant number of online games, but many people use oral communication—I am thinking of things such as Fortnite and Roblox, which is apparently a safe space, according to Roblox Corporation, but according to many researchers is a place where an awful lot of grooming takes place.
My other question for the Minister—I am not bothered if I do not get an answer today, as I would rather have a proper answer than the Minister try to come up with an answer right at this moment—is about what category the app store and the Google Play store fall into.
Alex Davies-Jones
On a point of order, Sir Roger. The livestream is not working. In the interest of transparency we should pause the Committee while it is fixed so that people can observe.
The Chair
I am reluctant to do that. It is a technical fault and it is clearly undesirable, but I do not think we can suspend the Committee for the sake of a technical problem. Every member of the public who wishes to express an interest in these proceedings is able to be present if they choose to do so. Although I understand the hon. Lady’s concern, we have to continue. We will get it fixed as soon as we can.
Kim Leadbeater
You are making some really important points about the world of the internet and online gaming for children and young people. That is where we need some serious consideration about obligations on providers about media literacy for both children and grown-ups. Many people with children know that this is a really dangerous space for young people, but we are not quite sure we have enough information to understand what the threats, risks and harms are. That point about media literacy, particularly in regard to the gaming world, is really important.
The Chair
Order. Before we proceed, the same rules apply in Committee as on the Floor of the House to this extent: the Chair is “you”, and you speak through the Chair, so it is “the hon. Lady”. [Interruption.] One moment.
While I am on my feet, I should perhaps have said earlier, and will now say for clarification, that interventions are permitted in exactly the same way as they are on the Floor of the House. In exactly the same way, it is up to the Member who has the Floor to decide whether to give way or not. The difference between these debates and those on the Floor of the House is of course that on the Floor of the House a Member can speak only once, whereas in Committee you have the opportunity to come back and speak again if you choose to do so. Once the Minister is winding up, that is the end of the debate. The Chair would not normally admit, except under exceptional circumstances, any further speech, as opposed to an intervention.
Kirsty Blackman
Thank you, Sir Roger.
I do not want to get sidetracked, but I agree that there is a major parental knowledge gap. Tomorrow’s parents will have grown up on the internet, so in 20 years’ time we will have not have that knowledge gap, but today media literacy is lacking particularly among parents as well as among children. In Scotland, media literacy is embedded in the curriculum; I am not entirely sure what the system is in the rest of the UK. My children are learning media literacy in school, but there is still a gap about media literacy for parents. My local authority is doing a media literacy training session for parents tomorrow night, which I am very much looking forward to attending so that I can find out even more about how to keep my children safe online.
I was asking the Minister about the App Store and the Google Play Store. I do not need an answer today, but one at some point would be really helpful. Do the App Store, the Google Play Store and other stores of that nature fall under the definition of search engines or of user-to-user content? The reality is that if somebody creates an app, presumably they are a user. Yes, it has to go through an approval process by Apple or Google, but once it is accepted by them, it is not owned by them; it is still owned by the person who generated it. Therefore, are those stores considered search engines, in that they are simply curating content, albeit moderated content, or are they considered user-to-user services?
That is really important, particularly when we are talking about age verification and children being able to access various apps. The stores are the key gateways where children get apps. Once they have an app, they can use all the online services that are available on it, in line with whatever parental controls parents choose to put in place. I would appreciate an answer from the Minister, but he does not need to provide it today. I am happy to receive it at a later time, if that is helpful.
Dame Maria Miller
I want to pick up on two issues, which I hope the Minister can clarify in his comments at the end of this section.
First, when we took evidence, the Internet Watch Foundation underlined the importance of end-to-end encryption being in scope of the Bill, so that it does not lose the ability to pick up child abuse images, as has already been referred to in the debate. The ability to scan end-to-end encryption is crucial. Will the Minister clarify if that is in scope and if the IWF will be able to continue its important work in safeguarding children?
Kirsty Blackman
A number of people have raised concerns about freedom of speech in relation to end-to-end encryption. Does the right hon. Lady agree with me that, there should not be freedom of speech when it comes to child sexual abuse images, and that it is reasonable for those systems to check for child sexual abuse images?
Dame Maria Miller
The hon. Lady is right to pick up on the nuance and the balance that we have to strike in legislation between freedom of speech and the protection of vulnerable individuals and children. I do not think there can be many people, particularly among those here today, who would want anything to trump the safeguarding of children. Will the Minister clarify exactly how the Bill works in relation to such important work?
Secondly, it is important that the Government have made the changes to schedule 2. They have listened closely on the issue of pornography and extended the provisions of the Bill to cover commercial pornography. However, the hon. Member for Pontypridd mentioned nudification software, and I am unclear whether the Bill would outlaw such software, which is designed to sexually harass women. That software takes photographs only of women, because its database relates only to female figures, and makes them appear to be completely naked. Does that software fall in scope of the Bill? If not, will the Minister do something about that? The software is available and we have to regulate it to ensure that we safeguard women’s rights to live without harassment in their day-to-day life.
Dan Carden
This part of the Bill deals with the definitions of services and which services would be exempt. I consider myself a millennial; most people my age or older are Facebook and Twitter users, and people a couple of years younger might use TikTok and other services. The way in which the online space is used by different generations, particularly by young people, changes rapidly. Given the definitions in the Bill, how does the Minister intend to keep pace with the changing ways in which people communicate? Most online games now allow interaction between users in different places, which was not the case a few years ago. Understanding how the Government intend the Bill to keep up with such changes is important. Will the Minister tell us about that?
Chris Philp
Let me briefly speak to the purpose of these clauses and then respond to some of the points made in the debate.
As the shadow Minister, the hon. Member for Pontypridd, touched on, clauses 2 and 3 define some of the key terms in the Bill, including “user-to-user services” and “search services”—key definitions that the rest of the Bill builds on. As she said, schedule 1 and clause 4 contain specific exemptions where we believe the services concerned present very low risk of harm. Schedule 2 sets out exemptions relating to the new duties that apply to commercial providers of pornography. I thank the shadow Minister and my right hon. Friend the Member for Basingstoke for noting the fact that the Government have substantially expanded the scope of the Bill to now include commercial pornography, in response to widespread feedback from Members of Parliament across the House and the various Committees that scrutinised the Bill.
The shadow Minister is quite right to say that the number of platforms to which the Bill applies is very wide. [Interruption.] Bless you—or bless my hon. Friend the Member for North West Durham, I should say, Sir Roger, although he is near sanctified already. As I was saying, we are necessarily trying to protect UK users, and with many of these platforms not located in the UK, we are seeking to apply these duties to those companies as well as ones that are domestically located. When we come to discuss the enforcement powers, I hope the Committee will see that those powers are very powerful.
The shadow Minister, the hon. Member for Liverpool, Walton and others asked about future technologies and whether the Bill will accommodate technologies that we cannot even imagine today. The metaverse is a good example: The metaverse did not exist when the Bill was first contemplated and the White Paper produced. Actually, I think Snapchat did not exist when the White Paper that preceded the Bill was first conceived. For that reason, the Bill is tech agnostic. We do not talk about specific technologies; we talk about the duties that apply to companies and the harms they are obligated to prevent.
The whole Bill is tech agnostic because we as parliamentarians today cannot anticipate future developments. When those future developments arise, as they inevitably will, the duties under the Bill will apply to them as well. The metaverse is a good example, because even though it did not exist when the structure of the Bill was conceived, anything happening in the metaverse is none the less covered by the Bill. Anything that happens in the metaverse that is illegal or harmful to children, falls into the category of legal but harmful to adults, or indeed constitutes pornography will be covered because the Bill is tech agnostic. That is an extremely important point to make.
The hon. Member for Aberdeen North asked about gaming. Parents are concerned because lots of children, including quite young children, use games. My own son has started playing Minecraft even though he is very young. To the extent that those games have user-to-user features—for example, user-to-user messaging, particularly where those messages can be sent widely and publicly—those user-to-user components are within the scope of the Bill.
The hon. Member for Aberdeen North also asked about the App Store. I will respond quickly to her question now rather than later, to avoid leaving the Committee in a state of tingling anticipation and suspense. The App Store, or app stores generally, are not in the scope of the Bill, because they are not providing, for example, user-to-user services, and the functionality they provide to basically buy apps does not count as a search service. However, any app that is purchased in an app store, to the extent that it has either search functionality, user-to-user functionality or purveys or conveys pornography, is in scope. If an app that is sold on one of these app stores turns out to provide a service that breaks the terms of the Bill, that app will be subject to regulatory enforcement directly by Ofcom.
The hon. Members for Aberdeen North and for Liverpool, Walton touched on media literacy, noting that there has been a change to the Bill since the previous version. We will probably debate this later, so I will be brief. The Government published a media literacy strategy, backed by funding, to address this point. It was launched about a year ago. Ofcom also has existing statutory duties—arising under the Communications Act 2003, I believe. The critical change made since the previous draft of the Bill—it was made in December last year, I believe—is that Ofcom published an updated set of policy intentions around media literacy that went even further than we had previously intended. That is the landscape around media literacy.
Dan Carden
On the way that media literacy relates to misinformation and disinformation, we heard from William Moy, chief executive of Full Fact. His view was that the Bill does nothing to tackle disinformation and that another information incident, as we have seen with covid and Ukraine recently, is inevitable. Full Fact’s view was that the Bill should give the regulator the power to declare misinformation incidents. Is that something the Minister has considered?
Chris Philp
I am sure we will discuss this topic a bit more as the Bill progresses.
I will make a few points on disinformation. The first is that, non-legislatively, the Government have a counter-disinformation unit, which sits within the Department for Digital, Culture, Media and Sport. It basically scans for disinformation incidents. For the past two years it has been primarily covid-focused, but in the last three or four months it has been primarily Russia/Ukraine-focused. When it identifies disinformation being spread on social media platforms, the unit works actively with the platforms to get it taken down. In the course of the Russia-Ukraine conflict, and as a result of the work of that unit, I have personally called in some of the platforms to complain about the stuff they have left up. I did not have a chance to make this point in the evidence session, but when the person from Twitter came to see us, I said that there was some content on Russian embassy Twitter accounts that, in my view, was blatant disinformation—denial of the atrocities that have been committed in Bucha. Twitter had allowed it to stay up, which I thought was wrong. Twitter often takes down such content, but in that example, wrongly and sadly, it did not. We are doing that work operationally.
Secondly, to the extent that disinformation can cause harm to an individual, which I suspect includes a lot of covid disinformation—drinking bleach is clearly not very good for people—that would fall under the terms of the legal but harmful provisions in the Bill.
Thirdly, when it comes to state-sponsored disinformation of the kind that we know Russia engages in on an industrial scale via the St Petersburg Internet Research Agency and elsewhere, the Home Office has introduced the National Security Bill—in fact, it had its Second Reading yesterday afternoon, when some of us were slightly distracted. One of the provisions in that Bill is a foreign interference offence. It is worth reading, because it is very widely drawn and it criminalises foreign interference, which includes disinformation. I suggest the Committee has a look at the foreign interference offence in the National Security Bill.
Alex Davies-Jones
I am grateful for the Minister’s intervention in bringing in the platforms to discuss disinformation put out by hostile nation states. Does he accept that if Russia Today had put out some of that disinformation, the platforms would be unable to take such content down as a result of the journalistic exemption in the Bill?
Chris Philp
We will no doubt discuss in due course clauses 15 and 50, which are the two that I think the shadow Minister alludes to. If a platform is exempt from the duties of the Bill owing to its qualification as a recognised news publisher under clause 50, it removes the obligation to act under the Bill, but it does not prevent action. Social media platforms can still choose to act. Also, it is not a totally straightforward matter to qualify as a regulated news publisher under clause 50. We saw the effect of sanctions: when Russia Today was sanctioned, it was removed from many platforms as a result of the sanctioning process. There are measures outside the Bill, such as sanctions, that can help to address the shocking disinformation that Russia Today was pumping out.
The last point I want to pick up on was rightly raised by my right hon. Friend the Member for Basingstoke and the hon. Member for Aberdeen North. It concerns child sexual exploitation and abuse images, and particularly the ability of platforms to scan for those. Many images are detected as a result of scanning messages, and many paedophiles or potential paedophiles are arrested as a result of that scanning. We saw a terrible situation a little while ago, when—for a limited period, owing to a misconception of privacy laws—Meta, or Facebook, temporarily suspended scanning in the European Union; as a result, loads of images that would otherwise have been intercepted were not.
I agree with the hon. Member for Aberdeen North that privacy concerns, including end-to-end encryption, should not trump the ability of organisations to scan for child sexual exploitation and abuse images. Speaking as a parent—I know she is, too—there is, frankly, nothing more important than protecting children from sexual exploitation and abuse. Some provisions in clause 103 speak to this point, and I am sure we will debate those in more detail when we come to that clause. I mention clause 103 to put down a marker as the place to go for the issue being raised. I trust that I have responded to the points raised in the debate, and I commend the clause to the Committee.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3 ordered to stand part of the Bill.
Schedules 1 and 2 agreed to.
Clause 4 ordered to stand part of the Bill.
The Chair
Before we move on, we have raised the issue of the live feed. The audio will be online later today. There is a problem with the feed—it is reaching the broadcasters, but it is not being broadcast at the moment.
As we are not certain we can sort out the technicalities between now and this afternoon, the Committee will move to Committee Room 9 for this afternoon’s sitting to ensure that the live stream is available. Mr Double, if Mr Russell intends to be present—he may not; that is up to you—it would be helpful if you would let him know. Ms Blackman, if John Nicolson intends to be present this afternoon, would you please tell him that Committee Room 9 will be used?
It would normally be possible to leave papers and other bits and pieces in the room, because it is usually locked between the morning and afternoon sittings. Clearly, because we are moving rooms, you will all need to take your papers and laptops with you.
Clause 5
Overview of Part 3
Question proposed, That the clause stand part of the Bill.
Alex Davies-Jones
I want to just put it on the record that the irony is not lost on me that we are having tech issues relating to the discussion of the Online Safety Bill. The Opposition have huge concerns regarding clause 5. We share the frustrations of stakeholders who have been working on these important issues for many years and who feel the Bill has been drafted in overly complex way. In its evidence, the Carnegie UK Trust outlined its concerns over the complexity of the Bill, which will likely lead to ineffective regulation for both service users and companies. While the Minister is fortunate to have a team of civil servants behind him, he will know that the Opposition sadly do not share the same level of resources—although I would like to place on the record my sincere thanks to my researcher, Freddie Cook, who is an army of one all by herself. Without her support, I would genuinely not know where I was today.
Complexity is an issue that crops up time and again when speaking with charities, stakeholders and civil society. We all recognise that the Bill will have a huge impact however it passes, but the complexity of its drafting is a huge barrier to implementation. The same can be said for the regulation. A Bill as complex as this is likely to lead to ineffective regulation for both service users and companies, who, for the first time, will be subject to specific requirements placed on them by the regulator. That being said, we absolutely support steps to ensure that providers of regulated user-to-user services and regulated search services have to abide by a duty of care regime, which will also see the regulator able to issue codes of practice.
I would also like to place on record my gratitude—lots of gratitude today—to Professor Lorna Woods and Will Perrin, who we heard from in evidence sessions last week. Alongside many others, they have been and continue to be an incredible source of knowledge and guidance for my team and for me as we seek to unpick the detail of this overly complex Bill. Colleagues will also be aware that Professor Woods and Mr Perrin originally developed the idea of a duty of care a few years ago now; their model was based on the idea that social media providers should be,
“seen as responsible for public space they have created, much as property owners or operators are in a physical world.”
It will come as no surprise to the Minister that Members of the Opposition fully fall behind that definition and firmly believe that forcing platforms to identify and act on harms that present a reasonable chance of risk is a positive step forward.
More broadly, we welcome moves by the Government to include specific duties on providers of services likely to be accessed by children, although I have some concerns about just how far they will stretch. Similarly, although I am sure we will come to address those matters in the debates that follow, we welcome steps to require Ofcom to issue codes of practice, but have fundamental concerns about how effective they will be if Ofcom is not allowed to remain fully independent and free from Government influence.
Lastly, on subsection 7, I imagine our debate on chapter 7 will be a key focus for Members. I know attempts to define key terms such as “priority content” will be a challenge for the Minister and his officials but we remain concerned that there are important omissions, which we will come to later. It is vital that those key terms are broad enough to encapsulate all the harms that we face online. Ultimately, what is illegal offline must be approached in the same way online if the Bill is to have any meaningful positive impact, which is ultimately what we all want.
Kirsty Blackman
I want to make a couple of brief comments. Unfortunately, my hon. Friend the Member for Ochil and South Perthshire is not here as, ironically, he is at the DCMS committee taking evidence on the Online Safety Bill. That is a pretty unfortunate clash of timing, but that is why I am here solo for the morning.
I wanted to make a quick comment on subsection 7. The Minister will have heard the evidence given on schedule 7 and the fact that the other schedules, particularly schedule 6, has a Scottish-specific section detailing the Scottish legislation that applies. Schedule 7 has no Scotland-specific section and does not adequately cover the Scottish legislation. I appreciate that the Minister has tabled amendment 126, which talks about the Scottish and Northern Irish legislation that may be different from England and Wales legislation, but will he give me some comfort that he does intend Scottish-specific offences to be added to schedule 7 through secondary legislation? There is a difference between an amendment on how to add them and a commitment that they will be added if necessary and if he feels that that will add something to the Bill. If he could commit that that will happen, I would appreciate that—obviously, in discussion with Scottish Ministers if amendment 126 is agreed. It would give me a measure of comfort and would assist, given the oral evidence we heard, in overcoming some of the concerns raised about schedule 7 and the lack of inclusion of Scottish offences.
Dame Maria Miller
In many ways, clause 6 is the central meat of the Bill. It brings into play a duty of care, which means that people operating online will be subject to the same rules as the rest of us when it comes to the provision of services. But when it comes to the detail, the guidance and codes that will be issued by Ofcom will play a central role. My question for the Minister is: in the light of the evidence that we received, I think in panel three, where the providers were unable to define what was harmful because they had not yet seen codes of practice from Ofcom, could he update us on when those codes and guidance might be available? I understand thoroughly why they may not be available at this point, and they certainly should not form part of the Bill because they need to be flexible enough to be changed in future, but it is important that we know how the guidance and codes work and that they work properly.
Will the Minister update the Committee on what further consideration he and other Ministers have given to the establishment of a standing committee to scrutinise the implementation of the Bill? Unless we have that in place, it will be difficult to know whether his legislation will work.
Dan Carden
Some of the evidence we heard suggested that the current precedent was that the Secretary of State had very little to do with independent regulators in this realm, but that the Bill overturns that precedent. Does the right hon. Lady have any concerns that the Bill hands too much power to the Secretary of State to intervene and influence regulators that should be independent?
Dame Maria Miller
The hon. Gentleman brings up an important point. We did hear about that in the evidence. I have no doubt the Secretary of State will not want to interfere in the workings of Ofcom. Having been in his position, I know there would be no desire for the Department to get involved in that, but I can understand why the Government might want the power to ensure things are working as they should. Perhaps the answer to the hon. Gentleman’s question is to have a standing committee scrutinising the effectiveness of the legislation and the way in which it is put into practice. That committee could be a further safeguard against what he implies: an unnecessary overreach of the Secretary of State’s powers.
Kirsty Blackman
Thank you, Sir Roger, for allowing me to intervene again. I was not expecting the standing committee issue to be brought up at this point, but I agree that there needs to be a post-implementation review of the Bill. I asked a series of written questions to Departments about post-legislative review and whether legislation that the Government have passed has had the intended effect. Most of the Departments that answered could not provide information on the number of post-legislative reviews. Of those that could provide me with the information, none of them had managed to do 100% of the post-implementation reviews that they were supposed to do.
It is important that we know how the Bill’s impact will be scrutinised. I do not think it is sufficient for the Government to say, “We will scrutinise it through the normal processes that we normally use,” because it is clear that those normal processes do not work. The Government cannot say that legislation they have passed has achieved the intended effect. Some of it will have and some of it will not have, but we do not know because we do not have enough information. We need a standing committee or another way to scrutinise the implementation.
Dame Maria Miller
I thank the hon. Lady for raising this point. Having also chaired a Select Committee, I can understand the sensitivities that this might fall under the current DCMS Committee, but the reality is that the Bill’s complexity and other pressures on the DCMS Committee means that this perhaps should be seen as an exceptional circumstance—in no way is that meant as a disrespect to that Select Committee, which is extremely effective in what it does.
Kirsty Blackman
I completely agree. Having sat on several Select Committees, I am aware of the tight timescales. There are not enough hours in the day for Select Committees to do everything that they would like to do. It would be unfortunate and undesirable were this matter to be one that fell between the cracks. Perhaps DCMS will bring forward more legislation in future that could fall between the cracks. If the Minister is willing to commit to a standing committee or anything in excess of the normal governmental procedures for review, that would be a step forward from the position that we are currently in. I look forward to hearing the Minister’s views on that.
Dan Carden
I want to add my voice to the calls for ways to monitor the success or failures of this legislation. We are starting from a position of self-regulation where companies write the rules and regulate themselves. It is right that we are improving on that, but with it comes further concerns around the powers of the Secretary of State and the effectiveness of Ofcom. As the issues are fundamental to freedom of speech and expression, and to the protection of vulnerable and young people, will the Minster consider how we better monitor whether the legislation does what it says on the tin?
Chris Philp
Clause 5 simply provides an overview of part 3 of the Bill. Several good points have been raised in the course of this discussion. I will defer replying to the substance of a number of them until we come to the relevant clause, but I will address two or three of them now.
The shadow Minister said that the Bill is a complex, and she is right; it is 193-odd clauses long and a world-leading piece of legislation. The duties that we are imposing on social media firms and internet companies do not already exist; we have no precedent to build on. Most matters on which Parliament legislates have been considered and dealt with before, so we build on an existing body of legislation that has been built up over decades or, in some cases in the criminal law, over centuries. In this case, we are constructing a new legislative edifice from the ground up. Nothing precedes this piece of legislation—we are creating anew—and the task is necessarily complicated by virtue of its novelty. However, I think we have tried to frame the Bill in a way that keeps it as straightforward and as future-proof as possible.
The shadow Minister is right to point to the codes of practice as the source of practical guidance to the public and to social media firms on how the obligations operate in practice. We are working with Ofcom to ensure that those codes of practice are published as quickly as possible and, where possible, prepared in parallel with the passage of the legislation. That is one reason why we have provided £88 million of up-front funding to Ofcom in the current and next financial years: to give it the financial resources to do precisely that.
My officials have just confirmed that my recollection of the Ofcom evidence session on the morning of Tuesday 24 May was correct: Ofcom confirmed to the Committee that it will publish, before the summer, what it described as a “road map” providing details on the timing of when and how those codes of practice will be created. I am sure that Ofcom is listening to our proceedings and will hear the views of the Committee and of the Government. We would like those codes of practice to be prepared and introduced as quickly as possible, and we certainly provided Ofcom with the resources to do precisely that.
There was question about the Scottish offences and, I suppose, about the Northern Irish offences as well—we do not want to forget any part of the United Kingdom.
Chris Philp
We are in agreement on that. I can confirm that the Government have tabled amendments 116 to 126 —the Committee will consider them in due course—to place equivalent Scottish offences, which the hon. Member for Aberdeen North asked about, in the Bill. We have done that in close consultation with the Scottish Government to ensure that the relevant Scottish offences equivalent to the England and Wales offences are inserted into the Bill. If the Scottish Parliament creates any new Scottish offences that should be inserted into the legislation, that can be done under schedule 7 by way of statutory instrument. I hope that answers the question.
The other question to which I will briefly reply was about parliamentary scrutiny. The Bill already contains a standard mechanism that provides for the Bill to be reviewed after a two to five-year period. That provision appears at the end of the Bill, as we would expect. Of course, there are the usual parliamentary mechanisms—Backbench Business debates, Westminster Hall debates and so on—as well as the DCMS Committee.
I heard the points about a standing Joint Committee. Obviously, I am mindful of the excellent prelegislative scrutiny work done by the previous Joint Committee of the Commons and the Lords. Equally, I am mindful that standing Joint Committees, outside the regular Select Committee structure, unusual. The only two that spring immediately to mind are the Intelligence and Security Committee, which is established by statute, and the Joint Committee on Human Rights, chaired by the right hon. and learned Member for Camberwell and Peckham (Ms Harman), which is established by Standing Orders of the House. I am afraid I am not in a position to make a definitive statement about the Government’s position on this. It is of course always open to the House to regulate its own businesses. There is nothing I can say today from a Government point of view, but I know that hon. Members’ points have been heard by my colleagues in Government.
We have gone somewhat beyond the scope of clause 5. You have been extremely generous, Sir Roger, in allowing me to respond to such a wide range of points. I commend clause 5 to the Committee.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Clause 6
Providers of user-to-user services: duties of care
The Chair
Before we proceed, perhaps this is the moment to explain what should happen and what is probably going to happen. Ordinarily, a clause is taken with amendments. This Chairman takes a fairly relaxed view of stand part debates. Sometimes it is convenient to have a very broad-ranging debate on the first group of amendments because it covers matters relating to the whole clause. The Chairman would then normally say, “Well, you’ve already had your stand part debate, so I’m not going to allow a further stand part debate.” It is up to hon. Members to decide whether to confine themselves to the amendment under discussion and then have a further stand part debate, or whether to go free range, in which case the Chairman would almost certainly say, “You can’t have a stand part debate as well. You can’t have two bites of the cherry.”
This is slightly more complex. It is a very complex Bill, and I think I am right in saying that it is the first time in my experience that we are taking other clause stand parts as part of the groups of amendments, because there is an enormous amount of crossover between the clauses. That will make it, for all of us, slightly harder to regulate. It is for that reason—the Minister was kind enough to say that I was reasonably generous in allowing a broad-ranging debate—that I think we are going to have to do that with this group.
I, and I am sure Ms Rees, will not wish to be draconian in seeking to call Members to order if you stray slightly outside the boundaries of a particular amendment. However, we have to get on with this, so please try not to be repetitive if you can possibly avoid it, although I accept that there may well be some cases where it is necessary.
Alex Davies-Jones
I beg to move amendment 69, in clause 6, page 5, line 39, at end insert—
‘(6A) All providers of regulated user-to-user services must name an individual whom the provider considers to be a senior manager of the provider, who is designated as the provider’s illegal content safety controller, and who is responsible for the provider’s compliance with the following duties—
(a) the duties about illegal content risk assessments set out in section 8,
(b) the duties about illegal content set out in section 9.
(6B) An individual is a “senior manager” of a provider if the individual plays a significant role in—
(a) the making of decisions about how the provider’s relevant activities are to be managed or organised, or
(b) the actual managing or organising of the provider’s relevant activities.
(6C) A provider’s “relevant activities” are activities relating to the provider’s compliance with the duties of care imposed by this Act.
(6D) The Safety Controller commits an offence if the provider fails to comply with the duties set out in sections 8 and 9 which must be complied with by the provider.”
The Chair
With this it will be convenient to discuss amendment 70, in clause 96, page 83, line 7, after “section” insert “6(6D),”.
This is one of those cases where the amendment relates to a later clause. While that clause may be debated now, it will not be voted on now. If amendment 69 is negated, amendment 70 will automatically fall later. I hope that is clear, but it will be clearer when we get to amendment 70. Having confused the issue totally, without further ado, I call Ms Davies-Jones.
Alex Davies-Jones
With your permission, Sir Roger, I would like to discuss clause 6 and our amendments 69 and 70, and then I will come back to discuss clauses 7, 21 and 22.
Chapter 2 includes a number of welcome improvements from the draft Bill that the Opposition support. It is only right that, when it comes to addressing illegal content, all platforms, regardless of size or reach, will now be required to develop suitable and sufficient risk assessments that must be renewed before design change is applied. Those risk assessments must be linked to safety duties, which Labour has once again long called for.
It was a huge oversight that, until this point, platforms have not had to perform risk assessments of that nature. During our oral evidence sessions only a few weeks ago, we heard extensive evidence about the range of harms that people face online. Yet the success of the regulatory framework relies on regulated companies carefully assessing the risk posed by their platforms and subsequently developing and implementing appropriate mitigations. Crucial to that, as we will come to later, is transparency. Platforms must be compelled to publish the risk assessments, but in the current version of the Bill, only the regulator will have access to them. Although we welcome the fact that the regulator will have the power to ensure that the risk assessments are of sufficient quality, there remain huge gaps, which I will come on to.
Kirsty Blackman
I do not intend to speak to this specific point, but I wholeheartedly agree and will be happy to back amendment 69, should the hon. Lady press it to a vote.
Alex Davies-Jones
I am grateful to the hon. Lady and for SNP support for amendment 69.
The Bill introduces criminal liability for senior managers who fail to comply with information notice provisions, but not for actual failure to fulfil their statutory duties with regard to safety, including child safety, and yet such failures lead to the most seriously harmful outcomes. Legislation should focus the minds of those in leadership positions in services that operate online platforms.
A robust corporate and senior management liability scheme is needed to impose personal liability on directors whose actions consistently and significantly put children at risk. The Bill must learn lessons from other regulated sectors, principally financial services, where regulation imposes specific duties on directors and senior management of financial institutions. Those responsible individuals face regulatory enforcement if they act in breach of such duties. Are we really saying that the financial services sector is more important than child safety online?
The Government rejected the Joint Committee’s recommendation that each company appoint a safety controller at, or reporting to, board level. As a result, there is no direct relationship in the Bill between senior management liability and the discharge by a platform of its safety duties. Under the Bill as drafted, a platform could be wholly negligent in its approach to child safety and put children at significant risk of exposure to illegal activity, but as long as the senior manager co-operated with the regulator’s investigation, senior managers would not be held personally liable. That is a disgrace.
The Joint Committee on the draft Bill recommended that
“a senior manager at board level or reporting to the board should be designated the ‘Safety Controller’ and made liable for a new offence: the failure to comply with their obligations as regulated service providers when there is clear evidence of repeated and systemic failings that result in a significant risk of serious harm to users. We believe that this would be a proportionate last resort for the Regulator. Like any offence, it should only be initiated and provable at the end of an exhaustive legal process.”
Amendment 69 would make provision for regulated companies to appoint an illegal content safety controller, who has responsibility and accountability for protecting children from illegal content and activity. We believe this measure would drive a more effective culture of online safety awareness within regulated firms by making senior management accountable for harms caused through their platforms and embedding safety within governance structures. The amendment would require consequential amendments setting out the nature of the offences for which the safety officer may be liable and the penalties associated with them.
In financial services regulation, the Financial Conduct Authority uses a range of personal accountability regimes to deter individuals who may exhibit unwanted and harmful behaviour and as mechanisms for bringing about cultural change. The senior managers and certificate regime is an overarching framework for all staff in financial sectors and service industries. It aims to
“encourage a culture of staff at all levels taking personal responsibility for their actions”,
and to
“make sure firms and staff clearly understand and can demonstrate where responsibility lies.”
Dan Carden
One of the challenges for this legislation will be the way it is enforced. Have my hon. Friend and her Front-Bench colleagues given consideration to the costs of the funding that Ofcom and the regulatory services may need?
Alex Davies-Jones
That is a huge concern for us. As was brought up in our evidence sessions with Ofcom, it is recruiting, effectively, a fundraising officer for the regulator. That throws into question the potential longevity of the regulator’s funding and whether it is resourced effectively to properly scrutinise and regulate the online platforms. If that long-term resource is not available, how can the regulator effectively scrutinise and bring enforcement to bear against companies for enabling illegal activity?
Chris Philp
Just to reassure the shadow Minister and her hon. Friend the Member for Liverpool, Walton, the Bill confers powers on Ofcom to levy fees and charges on the sector that it is regulating—so, on social media firms—to recoup its costs. We will debate that in due course—I think it is in clause 71, but that power is in the Bill.
Alex Davies-Jones
I am grateful to the Minister for that clarification and I look forward to debating that further as the Bill progresses.
Returning to the senior managers and certificate regime in the financial services industry, it states that senior managers must be preapproved by the regulator, have their responsibilities set out in a statement of responsibilities and be subject to enhanced conduct standards. Those in banks are also subject to regulatory requirements on their remuneration. Again, it baffles me that we are not asking the same for child safety from online platforms and companies.
The money laundering regulations also use the threat of criminal offences to drive culture change. Individuals can be culpable for failure of processes, as well as for intent. I therefore hope that the Minister will carefully consider the need for the same to apply to our online space to make children safe.
Amendment 70 is a technical amendment that we will be discussing later on in the Bill. However, I am happy to move it in the name of the official Opposition.
The Chair
The Committee will note that, at the moment, the hon. Lady is not moving amendment 70; she is only moving amendment 69. So the Question is, That that amendment be made.
Dan Carden
I congratulate my own Front Bench on this important amendment. I would like the Minister to respond to the issue of transparency and the reason why only the regulator would have sight of these risk assessments. It is fundamental that civil society groups and academics have access to them. Her Majesty’s Revenue and Customs is an example of where that works very well. HMRC publishes a lot of its data, which is then used by academics and researchers to produce reports and documents that feed back into the policy making processes and HMRC’s work. It would be a missed opportunity if the information and data gathered by Ofcom were not widely available for public scrutiny.
I would reinforce the earlier points about accountability. There are too many examples—whether in the financial crash or the collapse of companies such as Carillion—where accountability was never there. Without this amendment and the ability to hold individuals to account for the failures of companies that are faceless to many people, the legislation risks being absolutely impotent.
Finally, I know that we will get back to the issue of funding in a later clause but I hope that the Minister can reassure the Committee that funding for the enforcement of these regulations will be properly considered.
Chris Philp
Let me start by speaking to clauses 6, 7, 21 and 22 stand part. I will then address the amendments moved by the shadow Minister.
The Chair
Order. I apologise for interrupting, Minister, but the stand part debates on clauses 7, 21 and 22 are part of the next grouping, not this one. I am fairly relaxed about it, but just be aware that you cannot have two debates on this.
Chris Philp
The grouping sheet I have here suggests that clause 7 stand part and clauses 21 and 22 stand part are in this grouping, but if I have misunderstood—
The Chair
No, there are two groups. Let me clarify this for everyone, because it is not as straightforward as it normally is. At the moment we are dealing with amendments 69 and 70. The next grouping, underneath this one on your selection paper, is the clause stand part debates—which is peculiar, as effectively we are having the stand part debate on clause 6 now. For the convenience of the Committee, and if the shadow Minister is happy, I am relaxed about taking all this together.
Alex Davies-Jones
I am happy to come back in and discuss clauses 7, 21 and 22 stand part afterwards.
The Chair
The hon. Lady can be called again. The Minister is not winding up at this point.
Chris Philp
In the interests of simplicity, I will stick to the selection list and adapt my notes accordingly to confine my comments to amendments 69 and 70, and then we will come to the stand part debates in due course. I am happy to comply, Sir Roger.
Speaking of compliance, that brings us to the topic of amendments 69 and 70. It is worth reminding ourselves of the current enforcement provisions in the Bill, which are pretty strong. I can reassure the hon. Member for Liverpool, Walton that the enforcement powers here are far from impotent. They are very potent. As the shadow Minister acknowledged in her remarks, we are for the first time ever introducing senior management liability, which relates to non-compliance with information notices and offences of falsifying, encrypting or destroying information. It will be punishable by a prison sentence of up to two years. That is critical, because without that information, Ofcom is unable to enforce.
We have had examples of large social media firms withholding information and simply paying a large fine. There was a Competition and Markets Authority case a year or two ago where a large social media firm did not provide information repeatedly requested over an extended period and ended up paying a £50 million fine rather than providing the information. Let me put on record now that that behaviour is completely unacceptable. We condemn it unreservedly. It is because we do not want to see that happen again that there will be senior manager criminal liability in relation to providing information, with up to two years in prison.
In addition, for the other duties in the Bill there are penalties that Ofcom can apply for non-compliance. First, there are fines of up to 10% of global revenue. For the very big American social media firms, the UK market is somewhere just below 10% of their global revenue, so 10% of their global revenue is getting on for 100% of their UK revenue. That is a very significant financial penalty, running in some cases into billions of pounds.
In extreme circumstances—if those measures are not enough to ensure compliance—there are what amount to denial of service powers in the Bill, where essentially Ofcom can require internet service providers and others, such as payment providers, to disconnect the companies in the UK so that they cannot operate here. Again, that is a very substantial measure. I hope the hon. Member for Liverpool, Walton would agree that those measures, which are in the Bill already, are all extremely potent.
The question prompted by the amendment is whether we should go further. I have considered that issue as we have been thinking about updating the Bill—as hon. Members can imagine, it is a question that I have been debating internally. The question is whether we should go further and say there is personal criminal liability for breaches of the duties that go beyond information provision. There are arguments in favour, which we have heard, but there are arguments against as well. One is that if we introduce criminal liability for those other duties, that introduces a risk that the social media firms, fearing criminal prosecution, will become over-zealous and just take everything down because they are concerned about being personally liable. That could end up having a chilling effect on content available online and goes beyond what we in Parliament would intend.
Chris Philp
In a moment.
For those reasons, I think we have drawn the line in the right place. There is personal criminal liability for information provision, with fines of 10% of local revenue and service disruption—unplugging powers—as well. Having thought about it quite carefully, I think we have struck the balance in the right place. We do not want to deter people from offering services in the UK. If they worried that they might go to prison too readily, it might deter people from locating here. I fully recognise that there is a balance to strike. I feel that the balance is being struck in the right place.
I will go on to comment on a couple of examples we heard about Carillion and the financial crisis, but before I do so, I will give way as promised.
Kirsty Blackman
I appreciate that the Minister says he has been swithering on this point—he has been trying to work out the correct place to draw the line. Given that we do not yet have a commitment for a standing committee—again, that is potentially being considered—we do not know how the legislation is going to work. Will the Minister, rather than accepting the amendment, give consideration to including the ability to make changes via secondary legislation so that there is individual criminal liability for different breaches? That would allow him the flexibility in the future, if the regime is not working appropriately, to add through secondary legislation individual criminal liability for breaches beyond those that are currently covered.
Chris Philp
I have not heard that idea suggested. I will think about it. I do not want to respond off the cuff, but I will give consideration to the proposal. Henry VIII powers, which are essentially what the hon. Lady is describing—an ability through secondary legislation effectively to change primary legislation—are obviously viewed askance by some colleagues if too wide in scope. We do use them, of course, but normally in relatively limited circumstances. Creating a brand new criminal offence via what amounts to a Henry VIII power would be quite a wide application of the power, but it is an idea that I am perfectly happy to go away and reflect on. I thank her for mentioning the idea.
A couple of examples were given about companies that have failed in the past. Carillion was not a financial services company and there was no regulatory oversight of the company at all. In relation to financial services regulation, despite the much stricter regulation that existed in the run-up to the 2008 financial crisis, that crisis occurred none the less. [Interruption.] We were not in government at the time. We should be clear-eyed about the limits of what regulation alone can deliver, but that does not deter us from taking the steps we are taking here, which I think are extremely potent, for all the reasons that I mentioned and will not repeat.
Question put, That the amendment be made.
The Chair
With this it will be convenient to discuss the following:
Clause 7 stand part.
Clauses 21 and 22 stand part.
My view is that the stand part debate on clause 6 has effectively already been had, but I will not be too heavy-handed about that at the moment.
Alex Davies-Jones
On clause 7, as I have previously mentioned, we were all pleased to see the Government bring in more provisions to tackle pornographic content online, much of which is easily accessible and can cause harm to those viewing it and potentially to those involved in it.
As we have previously outlined, a statutory duty of care for social platforms online has been missing for far too long, but we made it clear on Second Reading that such a duty will only be effective if we consider the systems, business models and design choices behind how platforms operate. For too long, platforms have been abuse-enabling environments, but it does not have to be this way. The amendments that we will shortly consider are largely focused on transparency, as we all know that the duties of care will only be effective if platforms are compelled to proactively supply their assessments to Ofcom.
On clause 21, the duty of care approach is one that the Opposition support and it is fundamentally right that search services are subject to duties including illegal content risk assessments, illegal content assessments more widely, content reporting, complaints procedures, duties about freedom of expression and privacy, and duties around record keeping. Labour has long held the view that search services, while not direct hosts of potentially damaging content, should have responsibilities that see them put a duty of care towards users first, as we heard in our evidence sessions from HOPE not hate and the Antisemitism Policy Trust.
It is also welcome that the Government have committed to introducing specific measures for regulated search services that are likely to be accessed by children. However, those measures can and must go further, so we will be putting forward some important amendments as we proceed.
Labour does not oppose clause 22, either, but I would like to raise some important points with the Minister. We do not want to be in a position whereby those designing, operating and using a search engine in the United Kingdom are subject to a second-rate internet experience. We also do not want to be in a position where we are forcing search services to choose what is an appropriate design for people in the UK. It would be worrying indeed if our online experience vastly differed from that of, let us say, our friends in the European Union. How exactly will clause 22 ensure parity? I would be grateful if the Minister could confirm that before we proceed.
Chris Philp
The shadow Minister has already touched on the effect of these clauses: clause 6 sets out duties applying to user-to-user services in a proportionate and risk-based way; clause 7 sets out the scope of the various duties of care; and clauses 21 and 22 do the same in relation to search services.
In response to the point about whether the duties on search will end up providing a second-rate service in the United Kingdom, I do not think that they will. The duties have been designed to be proportionate and reasonable. Throughout the Bill, Members will see that there are separate duties for search and for user-to-user services. That is reflected in the symmetry—which appears elsewhere, too—of clauses 6 and 7, and clauses 21 and 22. We have done that because we recognise that search is different. It indexes the internet; it does not provide a user-to-user service. We have tried to structure these duties in a way that is reasonable and proportionate, and that will not adversely impair the experience of people in the UK.
I believe that we are ahead of the European Union in bringing forward this legislation and debating it in detail, but the European Union is working on its Digital Services Act. I am confident that there will be no disadvantage to people conducting searches in United Kingdom territory.
Question put and agreed to.
Clause 6 accordingly ordered to stand part of the Bill.
Clause 7 ordered to stand part of the Bill.
Clause 8
Illegal content risk assessment duties
Alex Davies-Jones
I beg to move amendment 10, in clause 8, page 6, line 33, at end insert—
“(4A) A duty to publish the illegal content risk assessment and proactively supply this to OFCOM.”
This amendment creates a duty to publish an illegal content risk assessment and supply it to Ofcom.
The Chair
With this it will be convenient to discuss the following:
Amendment 14, in clause 8, page 6, line 33, at end insert—
“(4A) A duty for the illegal content risk assessment to be approved by either—
(a) the board of the entity; or, if the organisation does not have a board structure,
(b) a named individual who the provider considers to be a senior manager of the entity, who may reasonably be expected to be in a position to ensure compliance with the illegal content risk assessment duties, and reports directly into the most senior employee of the entity.”
This amendment seeks to ensure that regulated companies’ boards or senior staff have responsibility for illegal content risk assessments.
Amendment 25, in clause 8, page 7, line 3, after the third “the” insert “production,”.
This amendment requires the risk assessment to take into account the risk of the production of illegal content, as well as the risk of its presence and dissemination.
Amendment 19, in clause 8, page 7, line 14, at end insert—
“(h) how the service may be used in conjunction with other regulated user-to-user services such that it may—
(i) enable users to encounter illegal content on other regulated user-to-user services, and
(ii) constitute part of a pathway to harm to individuals who are users of the service, in particular in relation to CSEA content.”
This amendment would incorporate into the duties a requirement to consider cross-platform risk.
Clause stand part.
Amendment 20, in clause 9, page 7, line 30, at end insert
“, including by being directed while on the service towards priority illegal content hosted by a different service;”.
This amendment aims to include within companies’ safety duties a duty to consider cross-platform risk.
Amendment 26, in clause 9, page 7, line 30, at end insert—
“(aa) prevent the production of illegal content by means of the service;”.
This amendment incorporates a requirement to prevent the production of illegal content within the safety duties.
Amendment 18, in clause 9, page 7, line 35, at end insert—
“(d) minimise the presence of content which reasonably foreseeably facilitates or aids the discovery or dissemination of priority illegal content, including CSEA content.”
This amendment brings measures to minimise content that may facilitate or aid the discovery of priority illegal content within the scope of the duty to maintain proportionate systems and processes.
Amendment 21, in clause 9, page 7, line 35, at end insert—
“(3A) A duty to collaborate with other companies to take reasonable and proportionate measures to prevent the means by which their services can be used in conjunction with other services to facilitate the encountering or dissemination of priority illegal content, including CSEA content,”.
This amendment creates a duty to collaborate in cases where there is potential cross-platform risk in relation to priority illegal content and CSEA content.
Clause 9 stand part.
Amendment 30, in clause 23, page 23, line 24, after “facilitating” insert
“the production of illegal content and”.
This amendment requires the illegal content risk assessment to consider the production of illegal content.
Clause 23 stand part.
Amendment 31, in clause 24, page 24, line 2, after “individuals” insert “producing or”.
This amendment expands the safety duty to include the need to minimise the risk of individuals producing certain types of search content.
Clause 24 stand part.
Members will note that amendments 17 and 28 form part of a separate group. I hope that is clear.
Alex Davies-Jones
At this stage, I will speak to clause 8 and our amendments 10, 14, 25, 19 and 17.
The Chair
Order. This is confusing. The hon. Lady said “and 17”. Amendment 17 is part of the next group of amendments.
Alex Davies-Jones
Apologies, Sir Roger; I will speak to amendments 10, 14, 25 and 19.
Alex Davies-Jones
The Opposition welcome the moves to ensure that all user-to-user services are compelled to provide risk assessments in relation to illegal content, but there are gaps, ranging from breadcrumbing to provisions for the production of livestreaming of otherwise illegal content.
Labour is extremely concerned by the lack of transparency around the all-important illegal content risk assessments, which is why we have tabled amendment 10. The effectiveness of the entire Bill is undermined unless the Government commit to a more transparent approach more widely. As we all know, in the Bill currently, the vital risk assessments will only be made available to the regulator, rather than for public scrutiny. There is a real risk—for want of a better word—in that approach, as companies could easily play down or undermine the risks. They could see the provision of the risk assessments to Ofcom as a simple, tick-box exercise to satisfy the requirements of them, rather than using the important assessments as an opportunity truly to assess the likelihood of current and emerging risks.
As my hon. Friend the Member for Worsley and Eccles South will touch on in her later remarks, the current approach runs the risk of allowing businesses to shield themselves from true transparency. The Minister knows that this is a major issue, and that until service providers and platforms are legally compelled to provide data, we will be shielded from the truth, because there is no statutory requirement for them to be transparent. That is fundamentally wrong and should not be allowed to continue. If the Government are serious about their commitment to transparency, and to the protection of adults and children online, they should make this small concession and see it as a positive step forward.
Amendment 14 would ensure that regulated companies, boards or senior staff have appropriate oversight of risk assessments related to adults. An obligation on boards or senior managers to approve risk assessments would hardwire the safety duties and create a culture of compliance in the regulated firms. The success of the regulatory framework relies on regulated companies carefully risk assessing their platforms. Once risks have been identified, the platform can concentrate on developing and implementing appropriate mitigations.
To date, boards and top executives of the regulated companies have not taken the risks to children seriously enough. Platforms either have not considered producing risk assessments or, if they have done so, they have been of limited efficiency and have demonstrably failed to adequately identify and respond to harms to children. Need I remind the Minister that the Joint Committee on the draft Bill recommended that risk assessments should be approved at board level?
Introducing a requirement on regulated companies to have the board or a senior manager approve the risk assessment will hardwire the safety duties into decision making, and create accountability and responsibility at the most senior level of the organisation. That will trickle down the organisation and help embed a culture of compliance across the company. We need to see safety online as a key focus for these platforms, and putting the onus on senior managers to take responsibility is a positive step forward in that battle.
Kirsty Blackman
I want to talk about a few different things relating to the amendments. Speaking from the Opposition Front Bench, the hon. Member for Pontypridd covered in depth amendment 20, which relates to being directed to other content. Although this seems like a small amendment, it would apply in a significant number of different situations. Particular mention was made of Discord for gaming, but also of things such as moving from Facebook to Messenger—all those different directions that can happen. A huge number of those are important for those who would seek to abuse children online by trying to move from the higher-regulation services or ones with more foot traffic to areas with perhaps less moderation so as to attack children in more extreme ways.
I grew up on the internet and spent a huge amount of time speaking to people, so I am well aware that people can be anyone they want to be on the internet, and people do pretend to be lots of different people. If someone tells us their age on the internet, we cannot assume that that is in any way accurate. I am doing what I can to imprint that knowledge on my children in relation to any actions they are taking online. In terms of media literacy, which we will come on to discuss in more depth later, I hope that one of the key things that is being told to both children and adults is that it does not matter if people have pictures on their profile—they can be anybody that they want to online and could have taken those pictures from wherever.
In relation to amendment 21 on collaboration, the only reasonable concern that I have heard is about an action that was taken by Facebook in employing an outside company in the US. It employed an outside company that placed stories in local newspapers on concerns about vile things that were happening on TikTok. Those stories were invented—they were made up—specifically to harm TikTok’s reputation. I am not saying for a second that collaboration is bad, but I think the argument that some companies may make that it is bad because it causes them problems and their opponents may use it against them proves the need to have a regulator. The point of having a regulator is to ensure that any information or collaboration that is required is done in a way that, should a company decide to use it with malicious intent, the regulator can come down on them. The regulator ensures that the collaboration that we need to happen in order for emergent issues to be dealt with as quickly as possible is done in a way that does not harm people. If it does harm people, the regulator is there to take action.
I want to talk about amendments 25 and 30 on the production of images and child sexual abuse content. Amendment 30 should potentially have an “or” at the end rather than an “and”. However, I am very keen to support both of those amendments, and all the amendments relating to the production of child sexual abuse content. On the issues raised by the Opposition about livestreaming, for example, we heard two weeks ago about the percentage of self-generated child sexual abuse content. The fact is that 75% of that content is self-generated. That is absolutely huge.
If the Bill does not adequately cover production of the content, whether it is by children and young people who have been coerced into producing the content and using their cameras in that way, or whether it is in some other way, then the Bill fails to adequately protect our children. Purely on the basis of that 75% stat, which is so incredibly stark, it is completely reasonable that production is included. I would be happy to support the amendments in that regard; I think they are eminently sensible. Potentially, when the Bill was first written, production was not nearly so much of an issue. However, as it has moved on, it has become a huge issue and something that needs tackling. Like Opposition Members, I do not feel like the Bill covers production in as much detail as it should, in order to provide protection for children.
Dan Carden
Amendment 10 would create a duty to publish the illegal content risk assessment, and proactively supply that to Ofcom. This is new legislation that is really a trial that will set international precedent, and a lot of the more prescriptive elements—which are necessary—are perhaps the most challenging parts of the Bill. The Minister has been very thoughtful on some of the issues, so I want to ask him, when we look at the landscape of how we look to regulate companies, where does he stand on transparency and accountability? How far is he willing to go, and how far does the Bill go, on issues of transparency? It is my feeling that the more companies are forced to publish and open up, the better. As we saw with the case of the Facebook whistleblower Frances Haugen, there is a lot to uncover. I therefore take this opportunity to ask the Minister how far the Bill goes on transparency and what his thoughts are on that.
Chris Philp
Clause 8 sets out the risk assessment duties for illegal content, as already discussed, that apply to user-to-user services. Ofcom will issue guidance on how companies can undertake those. To comply with those duties, companies will need to take proportionate measures to mitigate the risks identified in those assessments. The clause lists a number of potential risk factors the providers must assess, including how likely it is that users will encounter illegal content, as defined later in the Bill,
“by means of the service”.
That phrase is quite important, and I will come to it later, on discussing some of the amendments, because it does not necessarily mean just on the service itself but, in a cross-platform point, other sites where users might find themselves via the service. That phrase is important in the context of some of the reasonable queries about cross-platform risks.
Moving on, companies will also need to consider how the design and operation of their service may reduce or increase the risks identified. Under schedule 3, which we will vote on, or at least consider, later on, companies will have three months to carry out risk assessments, which must be kept up to date so that fresh risks that may arise from time to time can be accommodated. Therefore, if changes are made to the service, the risks can be considered on an ongoing basis.
Amendment 10 relates to the broader question that the hon. Member for Liverpool, Walton posed about transparency. The Bill already contains obligations to publish summary risk assessments on legal but harmful content. That refers to some of the potentially contentious or ambiguous types of content for which public risk assessments would be helpful. The companies are also required to make available those risk assessments to Ofcom on request. That raises a couple of questions, as both the hon. Member for Liverpool, Walton mentioned and some of the amendments highlighted. Should companies be required to proactively serve up their risk assessments to Ofcom, rather than wait to be asked? Also, should those risk assessments all be published—probably online?
In considering those two questions, there are a couple of things to think about. The first is Ofcom’s capacity. As we have discussed, 25,000 services are in scope. If all those services proactively delivered a copy of their risk assessment, even if they are very low risk and of no concern to Ofcom or, indeed, any of us, they would be in danger of overwhelming Ofcom. The approach contemplated in the Bill is that, where Ofcom has a concern or the platform is risk assessed as being significant—to be clear, that would apply to all the big platforms—it will proactively make a request, which the platform will be duty bound to meet. If the platform does not do that, the senior manager liability and the two years in prison that we discussed earlier will apply.
Alex Davies-Jones
The Minister mentioned earlier that Ofcom would be adequately resourced and funded to cope with the regulatory duty set out in the Bill. If Ofcom is not able to receive risk assessments for all the platforms potentially within scope, even if those platforms are not deemed to be high risk, does that not call into question whether Ofcom has the resource needed to actively carry out its duties in relation to the Bill?
Chris Philp
Of course, Ofcom is able to request any of them if it wants to—if it feels that to be necessary—but receiving 25,000 risk assessments, including from tiny companies that basically pose pretty much no risk at all and hardly anyone uses, would, I think, be an unreasonable and disproportionate requirement to impose. I do not think it is a question of the resources being inadequate; it is a question of being proportionate and reasonable.
Dan Carden
The point I was trying to get the Minister to think about was the action of companies in going through the process of these assessments and then making that information publicly available to civil society groups; it is about transparency. It is what the sector needs; it is the way we will find and root out the problems, and it is a great missed opportunity in this Bill.
Chris Philp
To reassure the hon. Member on the point about doing the risk assessment, all the companies have to do the risk assessment. That obligation is there. Ofcom can request any risk assessment. I would expect, and I think Parliament would expect, it to request risk assessments either where it is concerned about risk or where the platform is particularly large and has a very high reach—I am thinking of Facebook and companies like that. But hon. Members are talking here about requiring Ofcom to receive and, one therefore assumes, to consider, because what is the point of receiving an assessment unless it considers it? Receiving it and just putting it on a shelf without looking at it would be pointless, obviously. Requiring Ofcom to receive and look at potentially 25,000 risk assessments strikes me as a disproportionate burden. We should be concentrating Ofcom’s resources—and it should concentrate its activity, I submit—on those companies that pose a significant risk and those companies that have a very high reach and large numbers of users. I suggest that, if we imposed an obligation on it to receive and to consider risk assessments for tiny companies that pose no risk, that would not be the best use of its resources, and it would take away resources that could otherwise be used on those companies that do pose risk and that have larger numbers of users.
Kim Leadbeater
Just to be clear, we are saying that the only reason why we should not be encouraging the companies to do the risk assessment is that Ofcom might not be able to cope with dealing with all the risk assessments. But surely that is not a reason not to do it. The risk assessment is a fundamental part of this legislation. We have to be clear that there is no point in the companies having those risk assessments if they are not visible and transparent.
Chris Philp
All the companies have to do the risk assessment, for example for the “illegal” duties, where they are required to by the Bill. For the “illegal” duties, that is all of them; they have to do those risk assessments. The question is whether they have to send them to Ofcom—all of them—even if they are very low risk or have very low user numbers, and whether Ofcom, by implication, then has to consider them, because it would be pointless to require them to be sent if they were not then looked at. We want to ensure that Ofcom’s resources are pointed at the areas where the risks arise. Ofcom can request any of these. If Ofcom is concerned—even a bit concerned—it can request them.
Hon. Members are then making a slightly adjacent point about transparency—about whether the risk assessments should be made, essentially, publicly available. In relation to comprehensive public disclosure, there are legitimate questions about public disclosure and about getting to the heart of what is going on in these companies in the way in which Frances Haugen’s whistleblower disclosures did. But we also need to be mindful of what we might call malign actors—people who are trying to circumvent the provisions of the Bill—in relation to some of the “illegal” provisions, for example. We do not want to give them so much information that they know how they can circumvent the rules. Again, there is a balance to strike between ensuring that the rules are properly enforced and having such a high level of disclosure that people seeking to circumvent the rules are able to work out how to do so.
Kirsty Blackman
If the rules are so bad that people can circumvent them, they are not good enough anyway and they need to be updated, but I have a specific question on this. The Minister says that Ofcom will be taking in the biggest risk assessments, looking at them and ensuring that they are adequate. Will he please give consideration to asking Ofcom to publish the risk assessments from the very biggest platforms? Then they will all be in one place. They will be easy for people to find and people will not have to rake about in the bottom sections of a website. And it will apply only in the case of the very biggest, most at risk platforms, which should be regularly updating their risk assessments and changing their processes on a very regular basis in order to ensure that people are kept safe.
The Chair
Order. I am sorry to interrupt the Minister, but I now have to adjourn the sitting until this afternoon, when the Committee will meet again, in Room 9 and with Ms Rees in the Chair.
Online Safety Bill (Sixth sitting)
Tuesday 7th June 2022
(3 years, 7 months ago)
Public Bill CommitteesOnline Safety Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 7 June 2022 - (7 Jun 2022)
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Chair
Welcome back. I have a few announcements. I have been reassured that we will have no transmission problems this afternoon, and apparently the audio of this morning’s sitting is available if Members want to listen to it. I have no objections to Members taking their jackets off, because it is rather warm this afternoon. We are expecting a Division in the main Chamber at about 4 o’clock, so we will suspend for 15 minutes if that happens.
Kirsty Blackman (Aberdeen North) (SNP)
I am sorry, Ms Rees, but I am afraid that I cannot hear you very well.
The Chair
I will shout a bit in that case.
Clause 8
Illegal content risk assessment duties
Amendment proposed (this day): 10, in clause 8, page 6, line 33, at end insert—
“(4A) A duty to publish the illegal content risk assessment and proactively supply this to OFCOM.”—(Alex Davies-Jones.)
This amendment creates a duty to publish an illegal content risk assessment and supply it to Ofcom.
Question again proposed, That the amendment be made.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 14, in clause 8, page 6, line 33, at end insert—
“(4A) A duty for the illegal content risk assessment to be approved by either—
(a) the board of the entity; or, if the organisation does not have a board structure,
(b) a named individual who the provider considers to be a senior manager of the entity, who may reasonably be expected to be in a position to ensure compliance with the illegal content risk assessment duties, and reports directly into the most senior employee of the entity.”
This amendment seeks to ensure that regulated companies’ boards or senior staff have responsibility for illegal content risk assessments.
Amendment 25, in clause 8, page 7, line 3, after the third “the” insert “production,”.
This amendment requires the risk assessment to take into account the risk of the production of illegal content, as well as the risk of its presence and dissemination.
Amendment 19, in clause 8, page 7, line 14, at end insert—
“(h) how the service may be used in conjunction with other regulated user-to-user services such that it may—
(i) enable users to encounter illegal content on other regulated user-to-user services, and
(ii) constitute part of a pathway to harm to individuals who are users of the service, in particular in relation to CSEA content.”
This amendment would incorporate into the duties a requirement to consider cross-platform risk.
Clause stand part.
Amendment 20, in clause 9, page 7, line 30, at end insert—
“, including by being directed while on the service towards priority illegal content hosted by a different service;”.
This amendment aims to include within companies’ safety duties a duty to consider cross-platform risk.
Amendment 26, in clause 9, page 7, line 30, at end insert—
“(aa) prevent the production of illegal content by means of the service;”.
This amendment incorporates a requirement to prevent the production of illegal content within the safety duties.
Amendment 18, in clause 9, page 7, line 35, at end insert—
“(d) minimise the presence of content which reasonably foreseeably facilitates or aids the discovery or dissemination of priority illegal content, including CSEA content.”
This amendment brings measures to minimise content that may facilitate or aid the discovery of priority illegal content within the scope of the duty to maintain proportionate systems and processes.
Amendment 21, in clause 9, page 7, line 35, at end insert—
“(3A) A duty to collaborate with other companies to take reasonable and proportionate measures to prevent the means by which their services can be used in conjunction with other services to facilitate the encountering or dissemination of priority illegal content, including CSEA content,”.
This amendment creates a duty to collaborate in cases where there is potential cross-platform risk in relation to priority illegal content and CSEA content.
Clause 9 stand part.
Amendment 30, in clause 23, page 23, line 24, after “facilitating” insert—
“the production of illegal content and”.
This amendment requires the illegal content risk assessment to consider the production of illegal content.
Clause 23 stand part.
Amendment 31, in clause 24, page 24, line 2, after “individuals” insert “producing or”.
This amendment expands the safety duty to include the need to minimise the risk of individuals producing certain types of search content.
Clause 24 stand part.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)
It is a great pleasure to serve under your chairmanship, Ms Rees, and I am glad that this afternoon’s Committee proceedings are being broadcast to the world.
Before we adjourned this morning, I was in the process of saying that one of the challenges with public publication of the full risk assessment, even for larger companies, is that the vulnerabilities in their systems, or the potential opportunities to exploit those systems for criminal purposes, would then be publicly exposed in a way that may not serve the public interest, and that is a reason for not requiring complete disclosure of everything.
However, I draw the Committee’s attention to the existing transparency provisions in clause 64. We will come on to them later, but I want to mention them now, given that they are relevant to amendment 10. The transparency duties state that, once a year, Ofcom must serve notice on the larger companies—those in categories 1, 2A and 2B—requiring them to produce a transparency report. That is not a power for Ofcom—it is a requirement. Clause 64(1) states that Ofcom
“must give every provider…a notice which requires the provider to produce…(a ‘transparency report’).”
The content of the transparency report is specified by Ofcom, as set out in subsection (3). As Members will see, Ofcom has wide powers to specify what must be included in the report. On page 186, schedule 8—I know that we will debate it later, but it is relevant to the amendment—sets out the scope of what Ofcom can require. It is an extremely long list that covers everything we would wish to see. Paragraph 1, for instance, states:
“The incidence of illegal content, content that is harmful to children and priority content that is harmful to adults on a service.”
Therefore, the transparency reporting requirement—it is not an option but a requirement—in clause 64 addresses the transparency point that was raised earlier.
Amendment 14 would require a provider’s board members or senior manager to take responsibility for the illegal content risk assessment. We agree with the Opposition’s point. Indeed, we agree with what the Opposition are trying to achieve in a lot of their amendments.
Chris Philp
There is a “but” coming. We think that, in all cases apart from one, the Bill as drafted already addresses the matter. In the case of amendment 14, the risk assessment duties as drafted already explicitly require companies to consider how their governance structures may affect the risk of harm to users arising from illegal content. Ofcom will provide guidance to companies about how they can comply with those duties, which is very likely to include measures relating to senior-level engagement. In addition, Ofcom can issue confirmation decisions requiring companies to take specific steps to come into compliance. To put that simply, if Ofcom thinks that there is inadequate engagement by senior managers in relation to the risk assessment duties, it can require—it has the power to compel—a change of behaviour by the company.
I come now to clause 9—I think this group includes clause 9 stand part as well. The shadow Minister has touched on this. Clause 9 contains safety duties in relation to—
Chris Philp
I think the group includes clause 9 stand part, but I will of course be guided by you, Ms Rees.
Chris Philp
Very well; we will debate clause 9 separately. In that case, I will move on to amendments 19 and 20, which seek to address cross-platform risk. Again, we completely agree with the Opposition that cross-platform risk is a critical issue. We heard about it in evidence. It definitely needs to be addressed and covered by the Bill. We believe that it is covered by the Bill, and our legal advice is that it is covered by the Bill, because in clause 8 as drafted—[Interruption.] Bless you—or rather, I bless the shadow Minister, following Sir Roger’s guidance earlier, lest I inadvertently bless the wrong person.
Clause 8 already includes the phrase to which I alluded previously. I am talking about the requirement that platforms risk-assess illegal content that might be encountered
“by means of the service”.
That is a critical phrase, because it means not just on that service itself; it also means, potentially, via that service if, for example, that service directs users onward to illegal content on another site. By virtue of the words,
“by means of the service”,
appearing in clause 8 as drafted, the cross-platform risk that the Opposition and witnesses have rightly referred to is covered. Of course, Ofcom will set out further steps in the code of practice as well.
Dame Maria Miller (Basingstoke) (Con)
I was listening very closely to what the Minister was saying and I was hoping that he might be able to comment on some of the evidence that was given, particularly by Professor Lorna Woods, who talked about the importance of risk assessments being about systems, not content. Would the Minister pick up on that point? He was touching on it in his comments, and I was not sure whether this was the appropriate point in the Bill at which to bring it up.
Chris Philp
I thank my right hon. Friend for raising that. The risk assessments and, indeed, the duties arising under this Bill all apply to systems and processes—setting up systems and processes that are designed to protect people and to prevent harmful and illegal content from being encountered. We cannot specify in legislation every type of harmful content that might be encountered. This is about systems and processes. We heard the Chairman of the Joint Committee on the draft Online Safety Bill, our hon. Friend the Member for Folkestone and Hythe (Damian Collins), confirm to the House on Second Reading his belief—his accurate belief—that the Bill takes a systems-and-processes approach. We heard some witnesses saying that as well. The whole point of this Bill is that it is tech-agnostic—to future-proof it, as hon. Members mentioned this morning—and it is based on systems and processes. That is the core architecture of the legislation that we are debating.
Amendments 25 and 26 seek to ensure that user-to-user services assess and mitigate the risk of illegal content being produced via functions of the service. That is covered, as it should be—the Opposition are quite right to raise the point—by the illegal content risk assessment and safety duties in clauses 8 and 9. Specifically, clause 8(5)(d), on page 7 of the Bill—goodness, we are only on page 7 and we have been going for over half a day already—requires services to risk-assess functionalities of their service being used to facilitate the presence of illegal content. I stress the word “presence” in clause 8(5)(d). Where illegal content is produced by a functionality of the service—for example, by being livestreamed—that content will be present on the service and companies must mitigate that risk. The objective that the Opposition are seeking to achieve, and with which we completely agree with, is covered in clause 8(5)(d) by the word “presence”. If the content is present, it is covered by that section.
Kirsty Blackman
Specifically on that, I understand the point the hon. Gentleman is making and appreciate his clarification. However, on something such as Snapchat, if somebody takes a photo, it is sent to somebody else, then disappears immediately, because that is what Snapchat does—the photo is no longer present. It has been produced and created there, but it is not present on the platform. Can the Minister consider whether the Bill adequately covers all the instances he hopes are covered?
Chris Philp
The hon. Lady raises an interesting point about time. However, the clause 8(5)(d) uses the wording,
“the level of risk of functionalities of the service facilitating the presence or dissemination of illegal content”
and so on. That presence can happen at any time, even fleetingly, as with Snapchat. Even when the image self-deletes after a certain period—so I am told, I have not actually used Snapchat—the presence has occurred. Therefore, that would be covered by clause 8(5)(d).
Alex Davies-Jones
Will the Minister explain how we would be able to prove, once the image is deleted, that it was present on the platform?
Chris Philp
The question of proof is a separate one, and that would apply however we drafted the clause. The point is that the clause provides that any presence of a prohibited image would fall foul of the clause. There are also duties on the platforms to take reasonable steps. In the case of matters such as child sexual exploitation and abuse images, there are extra-onerous duties that we have discussed before, for obvious and quite correct reasons.
Kirsty Blackman
Will the Minister stress again that in this clause specifically he is talking about facilitating any presence? That is the wording that he has just used. Can he clarify exactly what he means? If the Minister were to do so, it would be an important point for the Bill as it proceeds.
The Chair
Order. Minister, before you continue, before the Committee rose earlier today, there was a conversation about clause 9 being in, and then I was told it was out. This is like the hokey cokey; it is back in again, just to confuse matters further. I was confused enough, so that point needs to be clarified.
Alex Davies-Jones
It is grouped, Chair. We were discussing clause 8 and the relevant amendments, then we were going to come back to clause 9 and the relevant amendments.
Chris Philp
I am happy to follow your direction, Ms Rees. I find that that is usually the wisest course of action.
I will speak to amendment 18, which is definitely on the agenda for this grouping and which the shadow Minister addressed earlier. It would oblige service providers to put in place systems and processes
“to minimise the presence of content which reasonably foreseeably facilitates or aids the discovery or dissemination of priority illegal content, including CSEA content.”
The Government completely support that objective, quite rightly promoted by the Opposition, but it is set out in the Bill as drafted. The companies in scope are obliged to take comprehensive measures to tackle CSEA content, including where a service directs users on the first service to the second service.
Amendment 21, in a similar spirit, talks about cross-platform collaboration. I have already mentioned the way in which the referral of a user from one platform to another is within the scope of the Bill. Again, under its provisions, service providers must put in place proportionate systems and processes to mitigate identified cross-platform harms and, where appropriate, to achieve that objective service providers would be expected to collaborate and communicate with one another. If Ofcom finds that they are not engaging in appropriate collaborative behaviour, which means they are not discharging their duty to protect people and children, it can intervene. While agreeing completely with the objective sought, the Bill already addresses that.
Chris Philp
Obviously, I encourage the Committee to support those clauses standing part of the Bill. They impose duties on search services—we touched on search a moment ago—to assess the nature and risk to individuals of accessing illegal content via their services, and to minimise the risk of users encountering that illegal content. They are very similar duties to those we discussed for user-to-user services, but applied in the search context. I hope that that addresses all the relevant provisions in the group that we are debating.
Alex Davies-Jones
I am grateful for the opportunity to speak to amendments to clause 9 and to clauses 23 and 24, which I did not speak on earlier. I am also very grateful that we are being broadcast live to the world and welcome that transparency for all who might be listening.
On clause 9, it is right that the user-to-user services will be required to have specific duties and to take appropriate measures to mitigate and manage the risk of harm to individuals and their likelihood of encountering priority illegal content. Again, however, the Bill does not go far enough, which is why we are seeking to make these important amendments. On amendment 18, it is important to stress that the current scope of the Bill does not capture the range of ways in which child abusers use social networks to organise abuse, including to form offender networks. They post digital breadcrumbs that signpost to illegal content on third-party messaging apps and the dark web, and they share child abuse videos that are carefully edited to fall within content moderation guidelines. This range of techniques, known as child abuse breadcrumbing, is a significant enabler of online child abuse.
Our amendment would give the regulator powers to tackle breadcrumbing and ensure a proactive upstream response. The amendment would ensure that tens of millions of interactions with accounts that actively enable the discovery and sharing of child abuse material will be brought into regulatory scope. It will not leave that as ambiguous. The amendment will also ensure that companies must tackle child abuse at the earliest possible stage. As it stands, the Bill would reinforce companies’ current focus only on material that explicitly reaches the criminal threshold. Because companies do not focus their approach on other child abuse material, abusers can exploit this knowledge to post carefully edited child abuse images and content that enables them to connect and form networks with other abusers. Offenders understand and can anticipate that breadcrumbing material will not be proactively identified or removed by the host site, so they are able to organise and link to child abuse in plain sight.
We all know that child abuse breadcrumbing takes many forms, but techniques include tribute sites where users create social media profiles using misappropriated identities of known child abuse survivors. These are used by offenders to connect with likeminded perpetrators to exchange contact information, form offender networks and signpost child abuse material elsewhere online. In the first quarter of 2021, there were 6 million interactions with such accounts.
Abusers may also use Facebook groups to build offender groups and signpost to child abuse hosted on third-party sites. Those groups are thinly veiled in their intentions; for example, as we heard in evidence sessions, groups are formed for those with an interest in children celebrating their 8th, 9th or 10th birthdays. Several groups with over 50,000 members remained alive despite being reported to Meta, and algorithmic recommendations quickly suggested additional groups for those members to join.
Lastly, abusers can signpost to content on third-party sites. Abusers are increasingly using novel forms of technology to signpost to online child abuse, including QR codes, immersive technologies such as the metaverse, and links to child abuse hosted on the blockchain. Given the highly agile nature of the child abuse threat and the demonstrable ability of sophisticated offenders to exploit new forms of technology, this amendment will ensure that the legislation is effectively futureproofed. Technological change makes it increasingly important that the ability of child abusers to connect and form offender networks can be disrupted at the earliest possible stage.
Turning to amendment 21, we know that child abuse is rarely siloed on a single platform or app. Well-established grooming pathways see abusers exploit the design features of social networks to contact children before they move communication across to other platforms, including livestreaming sites, as we have already heard, and encrypted messaging services. Offenders manipulate features such as Facebook’s algorithmic friend suggestions to make initial contact with a large number of children. They can then use direct messages to groom them and coerce children into sending sexual images via WhatsApp. Similarly, as we heard earlier, abusers can groom children through playing videogames and then bringing them on to another ancillary platform, such as Discord.
The National Society for the Prevention of Cruelty to Children has shared details of an individual whose name has been changed, and whose case particularly highlights the problems that children are facing in the online space. Ben was 14 when he was tricked on Facebook into thinking he was speaking to a female friend of a friend, who turned out to be a man. Using threats and blackmail, he coerced Ben into sending abuse images and performing sex acts live on Skype. Those images and videos were shared with five other men, who then bombarded Ben with further demands. His mum, Rachel, said:
“The abuse Ben suffered had a devastating impact on our family. It lasted two long years, leaving him suicidal.
It should not be so easy for an adult to meet and groom a child on one site then trick them into livestreaming their own abuse on another app, before sharing the images with like-minded criminals at the click of a button.
Social media sites should have to work together to stop this abuse happening in the first place, so other children do not have to go through what Ben did.”
The current drafting of the Bill does not place sufficiently clear obligations on platforms to co-operate on the cross-platform nature of child abuse. Amendment 21 would require companies to take reasonable and proportionate steps to share threat assessments, develop proportionate mechanisms to share offender intelligence, and create a rapid response arrangement to ensure that platforms develop a coherent, systemic approach to new and emerging threats. Although the industry has developed a systemic response to the removal of known child abuse images, these are largely ad hoc arrangements that share information on highly agile risk profiles. The cross-platform nature of grooming and the interplay of harms across multiple services need to be taken into account. If it is not addressed explicitly in the Bill, we are concerned that companies may be able to cite competition concerns to avoid taking action.
Kirsty Blackman
On the topic of child abuse images, the hon. Member spoke earlier about livestreaming and those images not being captured. I assume that she would make the same point in relation to this issue: these live images may not be captured by AI scraping for them, so it is really important that they are included in the Bill in some way as well.
Alex Davies-Jones
I completely agree with the hon. Member, and appreciate her intervention. It is fundamental for this point to be captured in the Bill because, as we are seeing, this is happening more and more. More and more victims are coming forward who have been subject to livestreaming that is not picked up by the technology available, and is then recorded and posted elsewhere on smaller platforms.
Legal advice suggests that cross-platform co-operation is likely to be significantly impeded by the negative interplay with competition law unless there is a clear statutory basis for enabling or requiring collaboration. Companies may legitimately have different risk and compliance appetites, or may simply choose to hide behind competition law to avoid taking a more robust form of action.
New and emerging technologies are likely to produce an intensification of cross-platform risks in the years ahead, and we are particularly concerned about the child abuse impacts in immersive virtual reality and alternative-reality environments, including the metaverse. A number of high-risk immersive products are already designed to be platform-agnostic, meaning that in-product communication takes place between users across multiple products and environments. There is a growing expectation that these environments will be built along such lines, with an incentive for companies to design products in this way in the hope of blunting the ability of Governments to pursue user safety objectives.
Separately, regulatory measures that are being developed in the EU, but are highly likely to impact service users in the UK, could result in significant unintended safety consequences. Although the interoperability provisions in the Digital Markets Act are strongly beneficial when viewed through a competition lens—they will allow the competition and communication of multiple platforms—they could, without appropriate safety mitigations, provide new means for abusers to contact children across multiple platforms, significantly increase the overall profile of cross-platform risk, and actively frustrate a broad number of current online safety responses. Amendment 21 will provide corresponding safety requirements that can mitigate the otherwise significant potential for unintended consequences.
The Minister referred to clauses 23 and 24 in relation to amendments 30 and 31. We think a similar consideration should apply for search services as well as for user-to-user services. We implore that the amendments be made, in order to prevent those harms from occurring.
Chris Philp
I have already commented on most of those amendments, but one point that the shadow Minister made that I have not addressed was about acts that are essentially preparatory to acts of child abuse or the exchange of child sexual exploitation and abuse images. She was quite right to raise that issue as a matter of serious concern that we would expect the Bill to prevent, and I offer the Committee the reassurance that the Bill, as drafted, does so.
Schedule 6 sets out the various forms of child sexual exploitation and abuse that are designated as priority offences and that platforms have to take proactive steps to prevent. On the cross-platform point, that includes, as we have discussed, things that happen through a service as well as on a service. Critically, paragraph 9 of schedule 6 includes “inchoate offences”, which means someone not just committing the offence but engaging in acts that are preparatory to committing the offence, conspiring to commit the offence, or procuring, aiding or abetting the commission of the offence. The preparatory activities that the shadow Minister referred to are covered under schedule 6, particularly paragraph 9.
Alex Davies-Jones
I thank the Minister for giving way. I notice that schedule 6 includes provision on the possession of indecent photographs of children. Can he confirm that that provision encapsulates the livestreaming of sexual exploitation?
The Chair
With this it will be convenient to discuss amendment 28, in clause 10, page 9, line 18, at end insert—
“(ba) matters relating to CSEA content including—
(i) the level of illegal images blocked at the upload stage and number and rates of livestreams of CSEA in public and private channels terminated; and
(ii) the number and rates of images and videos detected and removed by different tools, strategies and/or interventions.”
This amendment requires the children’s risk assessment to consider matters relating to CSEA content.
Barbara Keeley (Worsley and Eccles South) (Lab)
As this is the first time I have spoken in the Committee, may I say that it is a pleasure to serve with you in the Chair, Ms Rees? I agree with my hon. Friend the Member for Pontypridd that we are committed to improving the Bill, despite the fact that we have some reservations, which we share with many organisations, about some of the structure of the Bill and some of its provisions. As my hon. Friend has detailed, there are particular improvements to be made to strengthen the protection of children online, and I think the Committee’s debate on this section is proving fruitful.
Amendment 28 is a good example of where we must go further if we are to achieve the goal of the Bill and protect children from harm online. The amendment seeks to require regulated services to assess their level of risk based, in part, on the frequency with which they are blocking, detecting and removing child sexual exploitation and abuse content from their platforms. By doing so, we will be able to ascertain the reality of their overall risk and the effectiveness of their existing response.
The addition of livestreamed child sexual exploitation and abuse content not only acknowledges first-generation CSEA content, but recognises that livestreamed CSEA content happens on both public and private channels, and that they require different methods of detection.
Furthermore, amendment 28 details the practical information needed to assess whether the action being taken by a regulated service is adequate in countering the production and dissemination of CSEA content, in particular first-generation CSEA content. Separating the rates of terminated livestreams of CSEA in public and private channels is important, because those rates may vary widely depending on how CSEA content is generated. By specifying tools, strategies and interventions, the amendment would ensure that the systems in place to detect and report CSEA are adequate, and that is why we would like it to be part of the Bill.
Chris Philp
The Government support the spirit of amendments 17 and 28, which seek to achieve critical objectives, but the Bill as drafted delivers those objectives. In relation to amendment 17 and cross-platform risk, clause 8 already sets out harms and risks—including CSEA risks—that arise by means of the service. That means through the service to other services, as well as on the service itself, so that is covered.
Amendment 28 calls for the risk assessments expressly to cover illegal child sexual exploitation content, but clause 8 already requires that to happen. Clause 8(5) states that the risk assessment must cover the
“risk of individuals who are users of the service encountering…each kind of priority illegal content”.
If we follow through the definition of priority illegal content, we find all those CSEA offences listed in schedule 6. The objective of amendment 28 is categorically delivered by clause 8(5)(b), referencing onwards to schedule 6.
Kirsty Blackman
The amendment specifically mentions the level and rates of those images. I did not quite manage to follow through all the things that the Minister just spoke about, but does the clause specifically talk about the level of those things, rather than individual incidents, the possibility of incidents or some sort of threshold for incidents, as in some parts of the Bill?
Chris Philp
The risk assessments that clause 8 requires have to be suitable and sufficient; they cannot be perfunctory and inadequate in nature. I would say that suitable and sufficient means they must go into the kind of detail that the hon. Lady requests. More details, most of which relate to timing, are set out in schedule 3. Ofcom will be making sure that these risk assessments are not perfunctory.
Importantly, in relation to CSEA reporting, clause 59, which we will come to, places a mandatory requirement on in-scope companies to report to the National Crime Agency all CSEA content that they detect on their platforms, if it has not already been reported. Not only is that covered by the risk assessments, but there is a criminal reporting requirement here. Although the objectives of amendments 17 and 28 are very important, I submit to the Committee that the Bill delivers the intention behind them already, so I ask the shadow Minister to withdraw them.
Question put, That the amendment be made.
The Chair
Amendments 20, 26, 18 and 21 to clause 9 have already been debated. Does the shadow Minister wish to press any of them to a vote?
Alex Davies-Jones
Amendments 20, 18 and 21.
Amendment proposed: 20, in clause 9, page 7, line 30, at end insert
“, including by being directed while on the service towards priority illegal content hosted by a different service;”—(Alex Davies-Jones.)
This amendment aims to include within companies’ safety duties a duty to consider cross-platform risk.
Question put, That the amendment be made.
Barbara Keeley
I beg to move amendment 15, in clause10, page 8, line 41, at end insert—
“(4A) A duty for the children’s risk assessment to be approved by either—
(a) the board of the entity; or, if the organisation does not have a board structure,
(b) a named individual who the provider considers to be a senior manager of the entity, who may reasonably be expected to be in a position to ensure compliance with the children’s risk assessment duties, and reports directly into the most senior employee of the entity.”
This amendment seeks to ensure that regulated companies’ boards or senior staff have responsibility for children’s risk assessments.
The Chair
With this it will be convenient to discuss the following:
Amendment 11, in clause 10, page 9, line 2, at end insert—
“(5A) A duty to publish the children’s risk assessment and proactively supply this to OFCOM.”
This amendment creates a duty to publish the children’s risk assessment and supply it to Ofcom.
Amendment 27, in clause 10, page 9, line 25, after “facilitating” insert “the production of illegal content and”
This amendment requires the children’s risk assessment to consider the production of illegal content.
Clause 10 stand part.
Amendment 16, in clause 25, page 25, line 10, at end insert—
‘”(3A) A duty for the children’s risk assessment to be approved by either—
(a) the board of the entity; or, if the organisation does not have a board structure,
(b) a named individual who the provider considers to be a senior manager of the entity, who may reasonably be expected to be in a position to ensure compliance with the children’s risk assessment duties, and reports directly into the most senior employee of the entity.”
This amendment seeks to ensure that regulated companies’ boards or senior staff have responsibility for children’s risk assessments.
Amendment 13, in clause 25, page 25, line 13, at end insert—
“(4A) A duty to publish the children’s risk assessment and proactively supply this to OFCOM.”
This amendment creates a duty to publish the children’s risk assessment and supply it to Ofcom.
Amendment 32, in clause 25, page 25, line 31, after “facilitating” insert “the production of illegal content and”
This amendment requires the children’s risk assessment to consider risks relating to the production of illegal content.
Clause 25 stand part.
Barbara Keeley
I will speak to other amendments in this group as well as amendment 15. The success of the Bill’s regulatory framework relies on regulated companies carefully risk-assessing their platforms. Once risks have been identified, the platform can concentrate on developing and implementing appropriate mitigations. However, up to now, boards and top executives have not taken the risk to children seriously. Services have either not considered producing risk assessments or, if they have done so, they have been of limited efficacy and failed to identify and respond to harms to children.
In evidence to the Joint Committee, Frances Haugen explained that many of the corporate structures involved are flat, and accountability for decision making can be obscure. At Meta, that means teams will focus only on delivering against key commercial metrics, not on safety. Children’s charities have also noted that corporate structures in the large technology platforms reward employees who move fast and break things. Those companies place incentives on increasing return on investment rather than child safety. An effective risk assessment and risk mitigation plan can impact on profit, which is why we have seen so little movement from companies to take the measures themselves without the duty being placed on them by legislation.
It is welcome that clause 10 introduces a duty to risk-assess user-to-user services that are likely to be accessed by children. But, as my hon. Friend the Member for Pontypridd said this morning, it will become an empty, tick-box exercise if the Bill does not also introduce the requirement for boards to review and approve the risk assessments.
The Joint Committee scrutinising the draft Bill recommended that the risk assessment be approved at board level. The Government rejected that recommendation on the grounds thar Ofcom could include that in its guidance on producing risk assessments. As with much of the Bill, it is difficult to blindly accept promised safeguards when we have not seen the various codes of practice and guidance materials. The amendments would make sure that decisions about and awareness of child safety went right to the top of regulated companies. The requirement to have the board or a senior manager approve the risk assessment will hardwire the safety duties into decision making and create accountability and responsibility at the most senior level of the organisation. That should trickle down the organisation and help embed a culture of compliance across it. Unless there is a commitment to child safety at the highest level of the organisation, we will not see the shift in attitude that is urgently needed to keep children safe, and which I believe every member of the Committee subscribes to.
On amendments 11 and 13, it is welcome that we have risk assessments for children included in the Bill, but the effectiveness of that duty will be undermined unless the risk assessments can be available for scrutiny by the public and charities. In the current version of the Bill, risk assessments will only be made available to the regulator, which we debated on an earlier clause. Companies will be incentivised to play down the likelihood of currently emerging risks because of the implications of having to mitigate against them, which may run counter to their business interests. Unless the risk assessments are published, there will be no way to hold regulated companies to account, nor will there be any way for companies to learn from one another’s best practice, which is a very desirable aim.
The current situation shows that companies are unwilling to share risk assessments even when requested. In October 2021, following the whistleblower disclosures made by Frances Haugen, the National Society for the Prevention of Cruelty to Children led a global coalition of 60 child protection organisations that urged Meta to publish its risk assessments, including its data privacy impact assessments, which are a legal requirement under data protection law. Meta refused to share any of its risk assessments, even in relation to child sexual abuse and grooming. The company argued that risk assessments were live documents and it would not be appropriate for it to share them with any organisation other than the Information Commissioner’s Office, to whom it has a legal duty to disclose. As a result, civil society organisations and the charities that I talked about continue to be in the dark about whether and how Meta has appropriately identified online risk to children.
Making risk assessments public would support the smooth running of the regime and ensure its broader effectiveness. Civil society and other interested groups would be able to assess and identify any areas where a company might not be meeting its safety duties and make full, effective use of the proposed super-complaints mechanism. It will also help civil society organisations to hold the regulated companies and the regulator, Ofcom, to account.
As we have seen from evidence sessions, civil society organisations are often at the forefront of understanding and monitoring the harms that are occurring to users. They have an in depth understanding of what mitigations may be appropriate and they may be able to support the regulator to identify any obvious omissions. The success of the systemic risk assessment process will be significantly underpinned by and reliant upon the regulator’s being able to rapidly and effectively identify new and emerging harms, and it is highly likely that the regulator will want to draw on civil society expertise to ensure that it has highly effective early warning functions in place.
However, civil society organisations will be hampered in that role if they remain unable to determine what, if anything, companies are doing to respond to online threats. If Ofcom is unable to rapidly identify new and emerging harms, the resulting delays could mean entire regulatory cycles where harms were not captured in risk profiles or company risk assessments, and an inevitable lag between harms being identified and companies being required to act upon them. It is therefore clear that there is a significant public value to publishing risk assessments.
Amendments 27 and 32 are almost identical to the suggested amendments to clause 8 that we discussed earlier. As my hon. Friend the Member for Pontypridd said in our discussion about amendments 25, 26 and 30, the duty to carry out a suitable and sufficient risk assessment could be significantly strengthened by preventing the creation of illegal content, not only preventing individuals from encountering it. I know the Minister responded to that point, but the Opposition did not think that response was fully satisfactory. This is just as important for children’s risk assessments as it is for illegal content risk assessments.
Online platforms are not just where abusive material is published. Sex offenders use mainstream web platforms and services as tools to commit child sexual abuse. This can be seen particularly in the livestreaming of child sexual exploitation. Sex offenders pay to direct and watch child sexual abuse in real time. The Philippines is a known hotspot for such abuse and the UK has been identified by police leads as the third-largest consumer of livestreamed abuse in the world. What a very sad statistic that our society is the third-largest consumer of livestreamed abuse in the world.
Ruby is a survivor of online sexual exploitation in the Philippines, although Ruby is not her real name; she recently addressed a group of MPs about her experiences. She told Members how she was trafficked into sexual exploitation aged 16 after being tricked and lied to about the employment opportunities she thought she would be getting. She was forced to perform for paying customers online. Her story is harrowing. She said:
“I blamed myself for being trapped. I felt disgusted by every action I was forced to do, just to satisfy customers online. I lost my self-esteem and I felt very weak. I became so desperate to escape that I would shout whenever I heard a police siren go by, hoping somebody would hear me. One time after I did this, a woman in the house threatened me with a knife.”
Eventually, Ruby was found by the Philippine authorities and, after a four-year trial, the people who imprisoned her and five other girls were convicted. She said it took many years to heal from the experience, and at one point she nearly took her own life.
It should be obvious that if we are to truly improve child protection online we need to address the production of new child abuse material. In the Bill, we have a chance to address not only what illegal content is seen online, but how online platforms are used to perpetrate abuse. It should not be a case of waiting until the harm is done before taking action.
Chris Philp
As the hon. Lady said, we discussed in the groupings for clauses 8 and 9 quite a few of the broad principles relating to children, but I will none the less touch on some of those points again because they are important.
On amendment 27, under clause 8 there is already an obligation on platforms to put in place systems and processes to reduce the risk that their services will be used to facilitate the presence of illegal content. As that includes the risk of illegal content being present, including that produced via the service’s functionality, the terrible example that the hon. Lady gave is already covered by the Bill. She is quite right to raise that example, because it is terrible when such content involving children is produced, but such cases are expressly covered in the Bill as drafted, particularly in clause 8.
Amendment 31 covers a similar point in relation to search. As I said for the previous grouping, search does not facilitate the production of content; it helps people to find it. Clearly, there is already an obligation on search firms to stop people using search engines to find illegal content, so the relevant functionality in search is already covered by the Bill.
Amendments 15 and 16 would expressly require board member sign-off for risk assessments. I have two points to make on that. First, the duties set out in clause 10(6)(h) in relation to children’s risk assessments already require the governance structures to be properly considered, so governance is directly addressed. Secondly, subsection (2) states that the risk assessment has to be “suitable and sufficient”, so it cannot be done in a perfunctory or slipshod way. Again, Ofcom must be satisfied that those governance arrangements are appropriate. We could invent all the governance arrangements in the world, but the outcome needs to be delivered and, in this case, to protect children.
Beyond governance, the most important things are the sanctions and enforcement powers that Ofcom can use if those companies do not protect children. As the hon. Lady said in her speech, we know that those companies are not doing enough to protect children and are allowing all kinds of terrible things to happen. If those companies continue to allow those things to happen, the enforcement powers will be engaged, and they will be fined up to 10% of their global revenue. If they do not sort it out, they will find that their services are disconnected. Those are the real teeth that will ensure that those companies comply.
Barbara Keeley
I know that the Minister listened to Frances Haugen and to the members of charities. The charities and civil society organisations that are so concerned about this point do not accept that the Bill addresses it. I cannot see how his point addresses what I said about board-level acceptance of that role in children’s risk assessments. We need to change the culture of those organisations so that they become different from how they were described to us. He, like us, was sat there when we heard from the big platform providers, and they are not doing enough. He has had meetings with Frances Haugen; he knows what they are doing. It is good and welcome that the regulator will have the powers that he mentions, but that is just not enough.
Chris Philp
I agree with the hon. Lady that, as I said a second ago, those platforms are not doing enough to protect children. There is no question about that at all, and I think there is unanimity across the House that they are not doing enough to protect children.
I do not think the governance point is a panacea. Frankly, I think the boards of these companies are aware of what is going on. When these big questions arise, they go all the way up to Mark Zuckerberg. It is not as if Mark Zuckerberg and the directors of companies such as Meta are unaware of these risks; they are extremely aware of them, as Frances Haugen’s testimony made clear.
We do address the governance point. As I say, the risk assessments do need to explain how governance matters are deployed to consider these things—that is in clause 10(6)(h). But for me, it is the sanctions—the powers that Ofcom will have to fine these companies billions of pounds and ultimately to disconnect their service if they do not protect our children—that will deliver the result that we need.
Barbara Keeley
The Minister is talking about companies of such scale that even fines of billions will not hurt them. I refer him to the following wording in the amendments:
“a named individual who the provider considers to be a senior manager of the entity, who may reasonably be expected to be in a position to ensure compliance with the children’s risk assessment duties”.
That is the minimum we should be asking. We should be asking these platforms, which are doing so much damage and have had to be dragged to the table to do anything at all, to be prepared to appoint somebody who is responsible. The Minister tries to gloss over things by saying, “Oh well, they must be aware of it.” The named individual would have to be aware of it. I hope he understands the importance of his role and the Committee’s role in making this happen. We could make this happen.
Chris Philp
As I say, clause 10 already references the governance arrangements, but my strong view is that the only thing that will make these companies sit up and take notice—the only thing that will make them actually protect children in a way they are currently not doing—is the threat of billions of pounds of fines and, if they do not comply even after being fined at that level, the threat of their service being disconnected. Ultimately, that is the sanction that will make these companies protect our children.
Kim Leadbeater (Batley and Spen) (Lab)
As my hon. Friend the Member for Worsley and Eccles South has said, the point here is about cultural change, and the way to do that is through leadership. It is not about shutting the gate after the horse has bolted. Fining the companies might achieve something, but it does not tackle the root of the problem. It is about cultural change and leadership at these organisations. We all agree across the House that they are not doing enough, so how do we change that culture? It has to come from leadership.
Chris Philp
Yes, and that is why governance is addressed in the clause as drafted. But the one thing that will really change the way the leadership of these companies thinks about this issue is the one thing they ultimately care about—money. The reason they allow unsafe content to circulate and do not rein in or temper their algorithms, and the reason we are in this situation, which has arisen over the last 10 years or so, is that these companies have consistently prioritised profit over protection. Ultimately, that is the only language they understand—it is that and legal compulsion.
While the Bill rightly addresses governance in clause 10 and in other clauses, as I have said a few times, what has to happen to make this change occur is the compulsion that is inherent in the powers to fine and to deny service—to pull the plug—that the Bill also contains. The thing that will give reassurance to our constituents, and to me as a parent, is knowing that for the first time ever these companies can properly be held to account. They can be fined. They can have their connection pulled out of the wall. Those are the measures that will protect our children.
Alex Davies-Jones
The Minister is being very generous with his time, but I do not think he appreciates the nature of the issue. Mark Zuckerberg’s net worth is $71.5 billion. Elon Musk, who is reported to be purchasing Twitter, is worth $218 billion. Bill Gates is worth $125 billion. Money does not matter to these people.
The Minister discusses huge fines for the companies and the potential sanction of bringing down their platforms. They will just set up another one. That is what we are seeing with the smaller platforms: they are closing down and setting up new platforms. These measures do not matter. What matters and will actually make a difference to the safety of children and adults online is personal liability—holding people personally responsible for the direct harm they are causing to people here in the United Kingdom. That is what these amendments seek to do, and that is why we are pushing them so heavily. I urge the Minister to respond to that.
Chris Philp
We discussed personal liability extensively this morning. As we discussed, there is personal liability in relation to providing information, with a criminal penalty of up to two years’ imprisonment, to avoid situations like the one we saw a year or two ago, where one of these companies failed to provide the Competition and Markets Authority with the information that it required.
The shadow Minister pointed out the very high levels of global turnover—$71.5 billion—that these companies have. That means that ultimately they can be fined up to $7 billion for each set of breaches. That is a vast amount of money, particularly if those breaches happen repeatedly. She said that such companies will just set up again if we deny their service. Clearly, small companies can close down and set up again the next day, but gigantic companies, such as Meta—Facebook—cannot do that. That is why I think the sanctions I have pointed to are where the teeth really lie.
I accept the point about governance being important as well; I am not dismissing that. That is why we have personal criminal liability for information provision, with up to two years in prison, and it is why governance is referenced in clause 10. I accept the spirit of the points that have been made, but I think the Bill delivers these objectives as drafted.
Chris Philp
One last time, because I am conscious that we need to make some progress this afternoon.
Dame Maria Miller
I have huge sympathy with the point that the Minister is making on this issue, but the hon. Member for Pontypridd is right to drive the point home. The Minister says there will be huge fines, but I think there will also be huge court bills. There will be an awful lot of litigation about how things are interpreted, because so much money will come into play. I just reiterate the importance of the guidance and the codes of practice, because if we do not get those right then the whole framework will be incredibly fragile. We will need ongoing scrutiny of how the Bill works or there will be a very difficult situation.
Chris Philp
My right hon. Friend, as always, makes a very good point. The codes of practice will be important, particularly to enable Ofcom to levy fines where appropriate and then successfully defend them. This is an area that may get litigated. I hope that, should lawyers litigating these cases look at our transcripts in the future, they will see how strongly those on both sides of the House feel about this point. I know that Ofcom will ensure that the codes of practice are properly drafted. We touched this morning on the point about timing; we will follow up with Ofcom to make sure that the promise it made us during the evidence session about the road map is followed through and that those get published in good time.
On the point about the Joint Committee, I commend my right hon. Friend for her persistence—[Interruption.] Her tenacity—that is the right word. I commend her for her tenacity in raising that point. I mentioned it to the Secretary of State when I saw her at lunchtime, so the point that my right hon. Friend made this morning has been conveyed to the highest levels in the Department.
I must move on to the final two amendments, 11 and 13, which relate to transparency. Again, we had a debate about transparency earlier, when I made the point about the duties in clause 64, which I think cover the issue. Obviously, we are not debating clause 64 now but it is relevant because it requires Ofcom—it is not an option but an obligation; Ofcom must do so—to require providers to produce a transparency report every year. Ofcom can say what is supposed to be in the report, but the relevant schedule lists all the things that can be in it, and covers absolutely everything that the shadow Minister and the hon. Member for Worsley and Eccles South want to see in there.
That requirement to publish transparently and publicly is in the Bill, but it is to be found in clause 64. While I agree with the Opposition’s objectives on this point, I respectfully say that those objectives are delivered by the Bill as drafted, so I politely and gently request that the amendments be withdrawn.
Kirsty Blackman
I have a couple of comments, particularly about amendments 15 and 16, which the Minister has just spoken about at some length. I do not agree with the Government’s assessment that the governance subsection is adequate. It states that the risk assessment must take into account
“how the design and operation of the service (including the business model, governance, use of proactive technology…may reduce or increase the risks identified.”
It is actually an assessment of whether the governance structure has an impact on the risk assessment. It has no impact whatever on the level at which the risk assessment is approved or not approved; it is about the risks that the governance structure poses to children or adults, depending on which section of the Bill we are looking at.
The Minister should consider what is being asked in the amendment, which is about the decision-making level at which the risk assessments are approved. I know the Minister has spoken already, but some clarification would be welcome. Does he expect a junior tech support member of staff, or a junior member of the legal team, to write the risk assessment and then put it in a cupboard? Or perhaps they approve it themselves and then nothing happens with it until Ofcom asks for it. Does he think that Ofcom would look unfavourably on behaviour like that? If he was very clear with us about that, it might put our minds at rest. Does he think that someone in a managerial position or a board member, or the board itself, should take decisions, rather than a very junior member of staff? There is a big spread of people who could be taking decisions. If he could give us an indication of what Ofcom might look favourably on, it would be incredibly helpful for our deliberations.
Chris Philp
I am anxious about time, but I will respond to that point because it is an important one. The hon. Lady is right to say that clause 10(6)(h) looks to identify the risks associated with governance. That is correct —it is a risk assessment. However in clause 11(2)(a), there is a duty to mitigate those risks, having identified what the risks are. If, as she hypothesised, a very junior person was looking at these matters from a governance point of view, that would be identified as a risk. If it was not, Ofcom would find that that was not sufficient or suitable. That would breach clause 10(2), and the service would then be required to mitigate. If it did not mitigate the risks by having a more senior person taking the decision, Ofcom would take enforcement action for its failure under clause 11(2)(a).
For the record, should Ofcom or lawyers consult the transcript to ascertain Parliament’s intention in the course of future litigation, it is absolutely the Government’s view, as I think it is the hon. Lady’s, that a suitable level of decision making for a children’s risk assessment would be a very senior level. The official Opposition clearly think that, because they have put it in their amendment. I am happy to confirm that, as a Minister, I think that. Obviously the hon. Lady, who speaks for the SNP, does too. If the transcripts of the Committee’s proceedings are examined in the future to ascertain Parliament’s intention, Parliament’s intention will be very clear.
Barbara Keeley
All I have to add is the obvious point—I am sure that we are going to keep running into this—that people should not have to look to a transcript to see what the Minister’s and Parliament’s intention was. It is clear what the Opposition’s intention is—to protect children. I cannot see why the Minister will not specify who in an organisation should be responsible. It should not be a question of ploughing through transcripts of what we have talked about here in Committee; it should be obvious. We have the chance here to do something different and better. The regulator could specify a senior level.
Chris Philp
Clearly, we are legislating here to cover, as I think we said this morning, 25,000 different companies. They all have different organisational structures, different personnel and so on. To anticipate the appropriate level of decision making in each of those companies and put it in the Bill in black and white, in a very prescriptive manner, might not adequately reflect the range of people involved.
Barbara Keeley
I beg to move amendment 72, in clause 10, page 9, line 24, after “characteristic” insert “or characteristics”.
The Chair
With this it will be convenient to discuss the following:
Amendment 73, in clause 10, page 9, line 24, after “group” insert “or groups”.
Amendment 85, in clause 12, page 12, line 22, leave out subsection (d) and insert—
“(d) the level of risk of harm to adults presented by priority content that is harmful to adults which particularly affects individuals with certain characteristics or members of certain groups;”.
This amendment would recognise the intersectionality of harms.
Amendment 74, in clause 12, page 12, line 24, after “characteristic” insert “or characteristics”.
Amendment 75, in clause 12, page 12, line 24, after “group” insert “or groups”.
Amendment 71, in clause 83, page 72, line 12, at end insert—
“(1A) For each of the above risks, OFCOM shall identify and assess the level of risk of harm which particularly affects people with certain characteristics or membership of a group or groups.”
This amendment requires Ofcom as part of its risk register to assess risks of harm particularly affecting people with certain characteristics or membership of a group or groups.
Barbara Keeley
May I say—this might be a point of order—how my constituency name is pronounced? I get a million different versions, but it is Worsley, as in “worse”. It is an unfortunate name for a great place.
I will speak to all the amendments in the group together, because they relate to how levels of risk are assessed in relation to certain characteristics. The amendments are important because small changes to the descriptions of risk assessment will help to close a significant gap in protection.
Clauses 10 and 12 introduce a duty on regulated companies to assess harms to adults and children who might have an innate vulnerability arising from being a member of a particular group or having a certain characteristic. However, Ofcom is not required to assess harms to people other than children who have that increased innate vulnerability. Amendment 71 would require Ofcom to assess risks of harm particularly affecting people with certain characteristics or membership of a group or groups as part of its risk register. That would reduce the regulatory burden if companies had Ofcom’s risk assessment to base their work on.
Getting this right is important. The risk management regime introduced by the Bill should not assume that all people are at the same risk of harm—they are clearly not. Differences in innate vulnerability increase the incidence and impact of harm, such as by increasing the likelihood of encountering content or of that content being harmful, or heightening the impact of the harm.
It is right that the Bill emphasises the vulnerability of children, but there are other, larger groups with innate vulnerability to online harm. As we know, that often reflects structural inequalities in society.
For example, women will be harmed in circumstances where men might not be, and they could suffer some harms that have a more serious impact than they might for men. A similar point can be made for people with other characteristics. Vulnerability is then compounded by intersectional issues—people might belong to more than one high-risk group—and I will come to that in a moment.
The initial Ofcom risk assessment introduced by clause 83 is not required to consider the heightened risks to different groups of people, but companies are required to assess that risk in their own risk assessments for children and adults. They need to be given direction by an assessment by Ofcom, which amendment 71 would require.
Amendments 72 to 75 address the lack of recognition in these clauses of intersectionality issues. They are small amendments in the spirit of the Bill’s risk management regime. As drafted, the Bill refers to a singular “group” or “characteristic” for companies to assess for risk. However, some people are subject to increased risks of harm arising from being members of more than one group. Companies’ risk assessments for children and adults should reflect intersectionality, and not just characteristics taken individually. Including the plural of “group” and “characteristic” in appropriate places would achieve that.
Kirsty Blackman
I will first speak to our amendment 85, which, like the Labour amendment, seeks to ensure that the Bill is crystal clear in addressing intersectionality. We need only consider the abuse faced by groups of MPs to understand why that is necessary. Female MPs are attacked online much more regularly than male MPs, and the situation is compounded if they have another minority characteristic. For instance, if they are gay or black, they are even more likely to be attacked. In fact, the MP who is most likely to be attacked is black and female. There are very few black female MPs, so it is not because of sheer numbers that they are at such increased risk of attack. Those with a minority characteristic are at higher risk of online harm, but the risk facing those with more than one minority characteristic is substantially higher, and that is what the amendment seeks to address.
I have spoken specifically about people being attacked on Twitter, Facebook and other social media platforms, but people in certain groups face an additional significant risk. If a young gay woman does not have a community around her, or if a young trans person does not know anybody else who is trans, they are much more likely to use the internet to reach out, to try to find people who are like them, to try to understand. If they are not accepted by their family, school or workplace, they are much more likely to go online to find a community and support—to find what is out there in terms of assistance—but using the internet as a vulnerable, at-risk person puts them at much more significant risk. This goes back to my earlier arguments about people requiring anonymity to protect themselves when using the internet to find their way through a difficult situation in which they have no role models.
It should not be difficult for the Government to accept this amendment. They should consider it carefully and understand that all of us on the Opposition Benches are making a really reasonable proposal. This is not about saying that someone with only one protected characteristic is not at risk; it is about recognising the intersectionality of risk and the fact that the risk faced by those who fit into more than one minority group is much higher than that faced by those who fit into just one. This is not about taking anything away from the Bill; it is about strengthening it and ensuring that organisations listen.
We have heard that a number of companies are not providing the protection that Members across the House would like them to provide against child sexual abuse. The governing structures, risk assessments, rules and moderation at those sites are better at ensuring that the providers make money than they are at providing protection. When regulated providers assess risk, it is not too much to ask them to consider not just people with one protected characteristic but those with multiple protected characteristics.
As MPs, we work on that basis every day. Across Scotland and the UK, we support our constituents as individuals and as groups. When protected characteristics intersect, we find ourselves standing in Parliament, shouting strongly on behalf of those affected and giving them our strongest backing, because we know that that intersection of harms is the point at which people are most vulnerable, in both the real and the online world. Will the Minister consider widening the provision so that it takes intersectionality into account and not only covers people with one protected characteristic but includes an over and above duty? I genuinely do not think it is too much for us to ask providers, particularly the biggest ones, to make this change.
Chris Philp
Once again, the Government recognise the intent behind these amendments and support the concept that people with multiple intersecting characteristics, or those who are members of multiple groups, may experience—or probably do experience—elevated levels of harm and abuse online compared with others. We completely understand and accept that point, as clearly laid out by the hon. Member for Aberdeen North.
There is a technical legal reason why the use of the singular characteristic and group singular is adopted here. Section 6(c) of the Interpretation Act 1978 sets out how words in Bills and Acts are interpreted, namely that such words in the singular also cover the plural. That means that references in the singular, such as
“individuals with a certain characteristic”
in clause 10(6)(d), also cover characteristics in the plural. A reference to the singular implies a reference to the plural.
Will those compounded risks, where they exist, be taken into account? The answer is yes, because the assessments must assess the risk in front of them. Where there is evidence that multiple protected characteristics or the membership of multiple groups produce compounded risks, as the hon. Lady set out, the risk assessment has to reflect that. That includes the general sectoral risk assessment carried out by Ofcom, which is detailed in clause 83, and Ofcom will then produce guidance under clause 84.
The critical point is that, because there is evidence of high levels of compounded risk when people have more than one characteristic, that must be reflected in the risk assessment, otherwise it is inadequate. I accept the point behind the amendments, but I hope that that explains, with particular reference to the 1978 Act, why the Bill as drafted covers that valid point.
Barbara Keeley
I have nothing to add. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 ordered to stand part of the Bill.
Clause 11
Safety duties protecting children
The Chair
We now come to amendment 95, tabled by the hon. Member for Upper Bann, who is not on the Committee. Does anyone wish to move the amendment? If not, we will move on.
Barbara Keeley
I beg to move amendment 29, in clause 11, page 10, line 20, at end insert—
“(c) prevent the sexual or physical abuse of a child by means of that service.”
This amendment establishes a duty to prevent the sexual or physical abuse of a child by means of a service.
The Chair
With this it will be convenient to discuss amendment 33, in clause 26, page 26, line 18, at end insert—
“(c) prevent the sexual or physical abuse of a child by means of that service.”
This amendment establishes a duty to prevent the sexual or physical abuse of a child by means of a service.
Barbara Keeley
The purpose of this clause is to ensure that children at risk of online harms are given protections from harmful, age-inappropriate content through specific children’s safety duties for user-to-user services likely to be accessed by children.
It is welcome that the Bill contains strong provisions to ensure that service providers act upon and mitigate the risks identified in the required risk assessment, and to introduce protective systems and processes to address what children encounter. This amendment aims to ensure that online platforms are proactive in their attempts to mitigate the opportunity for sex offenders to abuse children.
As we have argued with other amendments, there are missed opportunities in the Bill to be preventive in tackling the harm that is created. The sad reality is that online platforms create an opportunity for offenders to identify, contact and abuse children, and to do so in real time through livestreaming. We know there has been a significant increase in online sexual exploitation during the pandemic. With sex offenders unable to travel or have physical contact with children, online abuse increased significantly.
In 2021, UK law enforcement received a record 97,727 industry reports relating to online child abuse, a 29% increase on the previous year, which is shocking. An NSPCC freedom of information request to police forces in England and Wales last year showed that online grooming offences reached record levels in 2020-21, with the number of sexual communications with a child offences in England and Wales increasing by almost 70% in three years. There has been a deeply troubling trend in internet-facilitated abuse towards more serious sexual offences against children, and the average age of children in child abuse images, particularly girls, is trending to younger ages.
In-person contact abuse moved online because of the opportunity there for sex offenders to continue exploiting children. Sadly, they can do so with little fear of the consequences, because detection and disruption of livestreamed abuse is so low. The duty to protect children from sexual offenders abusing them in real time and livestreaming their exploitation cannot be limited to one part of the internet and tech sector. While much of the abuse might take place on the user-to-user services, it is vital that protections against such abuse are strengthened across the board, including in the search services, as set out in clause 26.
At the moment there is no list of harms in the Bill that must be prioritised by regulated companies. The NSPCC and others have suggested including a new schedule, similar to schedule 7, setting out what the primary priority harms should be. It would be beneficial for the purposes of parliamentary scrutiny for us to consider the types of priority harm that the Government intend the Bill to cover, rather than leaving that to secondary legislation. I hope the Minister will consider that and say why it has not yet been included.
To conclude, while we all hope the Bill will tackle the appalling abuse of children currently taking place online, this cannot be achieved without tackling the conditions in which these harms can take place. It is only by requiring that steps be taken across online platforms to limit the opportunities for sex offenders to abuse children that we can see the prevalence of this crime reduced.
Dame Maria Miller
I rise, hopefully to speak to clause 11 more generally—or will that be a separate stand part debate, Ms Rees?
Chris Philp
The Government obviously support the objective of these amendments, which is to prevent children from suffering the appalling sexual and physical abuse that the hon. Member for Worsley and Eccles South outlined in her powerful speech. It is shocking that these incidents have risen in the way that she described.
To be clear, that sort of appalling sexual abuse is covered in clause 9—which we have debated already—which covers illegal content. As Members would expect, child sexual abuse is defined as one of the items of priority illegal content, which are listed in more detail in schedule 6, where the offences that relate to sexual abuse are enumerated. As child sexual exploitation is a priority offence, services are already obliged through clause 9 to be “proactive” in preventing it from happening. As such, as Members would expect, the requirements contained in these amendments are already delivered through clause 9.
The hon. Member for Worsley and Eccles South also asked when we are going to hear what the primary priority harms to children might be. To be clear, those will not include the sexual exploitation offences, because as Members would also expect, those are already in the Bill as primary illegal offences. The primary priority harms might include material promoting eating disorders and that kind of thing, which is not covered by the criminal matters—the illegal matters. I have heard the hon. Lady’s point that if that list were to be published, or at least a draft list, that would assist Parliament in scrutinising the Bill. I will take that point away and see whether there is anything we can do in that area. I am not making a commitment; I am just registering that I have heard the point and will take it away.
Barbara Keeley
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Dame Maria Miller
I rise to speak to clause 11, because this is an important part of the Bill that deals with the safety duties protecting children. Many of us here today are spurred on by our horror at the way in which internet providers, platform providers and search engines have acted over recent years, developing their products with no regard for the safety of children, so I applaud the Government for bringing forward this groundbreaking legislation. They are literally writing the book on this, but in doing so, we have be very careful about the language we use and the way in which we frame our requirements of these organisations. The Minister has rightly characterised these organisations as being entirely driven by finance, not the welfare of their consumers, which must make them quite unique in the world. I can only hope that that will change: presumably, over time, people will not want to use products that have no regard for the safety of those who use them.
In this particular part of the Bill, the thorny issue of age assurance comes up. I would value the Minister’s views on some of the evidence that we received during our evidence sessions about how we ensure that age assurance is effective. Some of us who have been in this place for a while would be forgiven for thinking that we had already passed a law on age assurance. Unfortunately, that law did not seem to come to anything, so let us hope that second time is lucky. The key question is: who is going to make sure that the age assurance that is in place is good enough? Clause 11(3) sets out
“a duty to operate a service using proportionate systems and processes”
that is designed to protect children, but what is a proportionate system? Who is going to judge that? Presumably it will be Ofcom in the short term, and in the long term, I am sure the courts will get involved.
In our evidence, we heard some people advocating very strongly for these sorts of systems to be provided by third parties. I have to say, in a context where we are hearing how irresponsible the providers of these services are, I can understand why people would think that a third party would be a more responsible way forward. Can the Minister help the Committee understand how Ofcom will ensure that the systems used, particularly the age assurance systems, are proportionate—I do not particularly like that word; I would like those systems to be brilliant, not proportionate—and are actually doing what we need them to do, which is safeguard children? For the record, and for the edification of judges who are looking at this matter in future—and, indeed, Ofcom—will he set out how important this measure is within the Bill?
Chris Philp
I thank my right hon. Friend for her remarks, in which she powerfully and eloquently set out how important the clause is to protecting children. She is right to point out that this is a critical area in the Bill, and it has wide support across the House. I am happy to emphasise, for the benefit of those who may study our proceedings in future, that protecting children is probably the single-most important thing that the Bill does, which is why it is vital that age-gating, where necessary, is effective.
My right hon. Friend asked how Ofcom will judge whether the systems under clause 11(3) are proportionate to
“prevent children of any age from encountering”
harmful content and so on. Ultimately, the proof of the pudding is in the eating; it has to be effective. When Ofcom decides whether a particular company or service is meeting the duty set out in the clause, the simple test will be one of effectiveness: is it effective and does it work? That is the approach that I would expect Ofcom to take; that is the approach that I would expect a court to take. We have specified that age verification, which is the most hard-edged type of age assurance—people have to provide a passport or something of that nature—is one example of how the duty can be met. If another, less-intrusive means is used, it will still have to be assessed as effective by Ofcom and, if challenged, by the courts.
I think my right hon. Friend was asking the Committee to confirm to people looking at our proceedings our clear intent for the measures to be effective. That is the standard to which we expect Ofcom and the courts to hold those platforms in deciding whether they have met the duties set out in the clause.
Dame Maria Miller
For clarification, does the Minister anticipate that Ofcom might be able to insist that a third-party provider be involved if there is significant evidence that the measures put in place by a platform are ineffective?
Chris Philp
We have deliberately avoided being too prescriptive about precisely how the duty is met. We have pointed to age verification as an example of how the duty can be met without saying that that is the only way. We would not want to bind Ofcom’s hands, or indeed the hands of platforms. Clearly, using a third party is another way of delivering the outcome. If a platform were unable to demonstrate to Ofcom that it could deliver the required outcome using its own methods, Ofcom may well tell it to use a third party instead. The critical point is that the outcome must be delivered. That is the message that the social media firms, Ofcom and the courts need to hear when they look at our proceedings. That is set out clearly in the clause. Parliament is imposing a duty, and we expect all those to whom the legislation applies to comply with it.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 12
Adults’ risk assessment duties
Alex Davies-Jones
I beg to move amendment 12, in clause 12, page 12, line 10, at end insert—
“(4A) A duty to publish the adults’ risk assessment and proactively supply this to OFCOM.”
This amendment creates a duty to publish the adults’ risk assessment and supply it to Ofcom.
Alex Davies-Jones
The amendment creates a duty to publish the adults’ risk assessment and supply it to Ofcom. As my hon. Friend the Member for Worsley and Eccles South remarked when addressing clause 10, transparency and scrutiny of those all-important risk assessments must be at the heart of the Online Safety Bill. We all know that the Government have had a hazy record on transparency lately but, for the sake of all in the online space, I sincerely hope that the Minister will see the value in ensuring that the risk assessments are accurate, proactively supplied and published for us all to consider.
It is only fair that all the information about risks to personal safety be made available to users of category 1 services, which we know are the most popular and, often, the most troublesome services. We all want people to feel compelled to make their own decisions about their behaviour both online and offline. That is why we are pushing for a thorough approach to risk assessments more widely. Also, without a formal duty to publicise those risk assessments, I fear there will be little change in our safety online. The Minister has referenced that the platforms will be looking back at Hansard in years to come to determine whether or not they should be doing the right thing. Unless we make that a statutory obligation within the Bill, I fear that reference will fall on deaf ears.
Chris Philp
Once again, I agree with the point about transparency and the need to have those matters brought into the light of day. We heard from Frances Haugen how Facebook—now Meta—actively resisted doing so. However, I point to two provisions already in the Bill that deliver precisely that objective. I know we are debating clause 12, but there is a duty in clause 13(2) for platforms to publish in their terms of service—a public document—the findings of the most recent adult risk assessment. That duty is in clause 13—the next clause we are going to debate—in addition to the obligations I have referred to twice already in clause 64, where Ofcom compels those firms to publish their transparency reports. I agree with the points that the shadow Minister made, but suggest that through clause 13(2) and clause 64, those objectives are met in the Bill as drafted.
Alex Davies-Jones
I thank the Minister for his comments, but sadly we do not feel that is appropriate or robust enough, which is why we will be pressing the amendment to a Division.
Question put, That the amendment be made.
The Committee divided.
Alex Davies-Jones
While I am at risk of parroting my hon. Friend the Member for Worsley and Eccles South on clause 11, it is important that adults and the specific risks they face online are considered in the clause. The Minister knows we have wider concerns about the specific challenges of the current categorisation system. I will come on to that at great length later, but I thought it would be helpful to remind him at this relatively early stage that the commitments to safety and risk assessments for category 1 services will only work if category 1 encapsulates the most harmful platforms out there. That being said, Labour broadly supports this clause and has not sought to amend it.
Chris Philp
I am eagerly awaiting the lengthy representations that the shadow Minister just referred to, as are, I am sure, the whole Committee and indeed the millions watching our proceedings on the live broadcast. As the shadow Minister said, clause 13 sets out the safety duties in relation to adults. This is content that is legal but potentially harmful to adults, and for those topics specified in secondary legislation, it will require category 1 services to set out clearly what actions they might be taking—from the actions specified in subsection (4) —in relation to that content.
It is important to specify that the action they may choose to take is a choice for the platform. I know some people have raised issues concerning free speech and these duties, but I want to reiterate and be clear that this is a choice for the platform. They have to be publicly clear about what choices they are making, and they must apply those choices consistently. That is a significant improvement on where we are now, where some of these policies get applied in a manner that is arbitrary.
Question put and agreed to.
Clause 13 accordingly ordered to stand part of the Bill.
Clause 14
User empowerment duties
Alex Davies-Jones
I beg to move amendment 46, in clause 14, page 14, line 12, after “non-verified users” insert
“and to enable them to see whether another user is verified or non-verified.”
This amendment would make it clear that, as part of the User Empowerment Duty, users should be able to see which other users are verified and which are non-verified.
The Chair
With this it will be convenient to discuss the following:
Amendment 47, in clause 189, page 155, line 1, at end insert
“‘Identity Verification’ means a system or process designed to enable a user to prove their identity, for purposes of establishing that they are a genuine, unique, human user of the service and that the name associated with their profile is their real name.”
This amendment adds a definition of Identity Verification to the terms defined in the Bill.
New clause 8—OFCOM’s guidance about user identity verification—
“(1) OFCOM must produce guidance for providers of Category 1 services on how to comply with the duty set out in section 57(1).
(2) In producing the guidance (including revised or replacement guidance), OFCOM must have regard to—
(a) ensuring providers offer forms of identity verification which are likely to be accessible to vulnerable adult users and users with protected Characteristics under the Equality Act 2010,
(b) promoting competition, user choice, and interoperability in the provision of identity verification,
(c) protection of rights, including rights to privacy, freedom of expression, safety, access to information, and the rights of children,
(d) alignment with other relevant guidance and regulation, including with regards to Age Assurance and Age Verification.
(3) In producing the guidance (including revised or replacement guidance), OFCOM must set minimum standards for the forms of identity verification which Category services must offer, addressing—
(a) effectiveness,
(b) privacy and security,
(c) accessibility,
(d) time-frames for disclosure to Law Enforcement in case of criminal investigations,
(e) transparency for the purposes of research and independent auditing,
(f) user appeal and redress mechanisms.
(4) Before producing the guidance (including revised or replacement guidance), OFCOM must consult—
(a) the Information Commissioner,
(b) the Digital Markets Unit,
(c) persons whom OFCOM consider to have technological expertise relevant to the duty set out in section 57(1),
(d) persons who appear to OFCOM to represent the interests of users including vulnerable adult users of Category 1 services, and
(e) such other persons as OFCOM considers appropriate.
(5) OFCOM must publish the guidance (and any revised or replacement guidance).”
This new clause would require Ofcom to set a framework of principles and minimum standards for the User Verification Duty.
Alex Davies-Jones
The revised Bill seeks to address the problems associated with anonymity through requiring platforms to empower users, with new options to verify their identity and filter out non-verified accounts. This is in line with the approach recommended by Clean Up The Internet and also reflects the approach proposed in the Social Media Platforms (Identity Verification) Bill, which was tabled by the hon. Member for Stroud (Siobhan Baillie) and attracted cross-party support. It has the potential to strike a better balance between tackling the clear role that anonymity can play in fuelling abuse and disinformation, while safeguarding legitimate uses of anonymity, including by vulnerable users, for whom anonymity can act as a protection. However, Labour does share the concerns of stakeholders around the revised Bill, which we have sought to amend.
Amendment 46 aims to empower people to use this information about verification when making judgments about the reliability of other accounts and the content they share. This would ensure that the user verification duty helps disrupt the use of networks of inauthentic accounts to spread disinformation. Labour welcomes the inclusion in the revised Bill of measures designed to address harm associated with misuse of anonymous social media accounts. There is considerable evidence from Clean Up The Internet and others that anonymity fuels online abuse, bullying and trolling and that it is one of the main tools used by organised disinformation networks to spread and amplify false, extremist and hateful content.
The revised Bill seeks to address the problems associated with anonymity, by requiring platforms to empower users with new options to verify their identity and to filter out non-verified accounts. In doing so, it has the potential to strike a better balance between tackling the clear role that anonymity can play in fuelling abuse and misinformation while safeguarding legitimate users of anonymity, including vulnerable users, for whom anonymity acts as a protection.
Clause 14 falls short of truly empowering people to make the most well-informed decisions about the type of content they engage with. We believe that this could be simple, and a simple change from a design perspective. Category 1 platforms are already able to verify different types of accounts, whether they be personal or business accounts, so ensuring that people are equipped with this information more broadly would be an easy step for the big platforms to make. Indeed, the Joint Committee’s prelegislative scrutiny recommended that the Government consider, as part of Ofcom’s code of practice, a requirement for the largest and highest-risk platforms to offer the choice of verified or unverified status and user options on how they interact with accounts in either category.
I know that there are concerns about verification, and there is a delicate balance between anonymity, free speech and protecting us all online. I somewhat sympathise with the Minister in being tasked with bringing forward this complex legislation, but the options for choosing what content and users we do and do not engage with are already there on most platforms. On Twitter, we are able to mute accounts—I do so regularly—or keywords that we want to avoid. Similarly, we can restrict individuals on Instagram.
In evidence to the Joint Committee, the Secretary of State said that the first priority of the draft Bill was to end all online abuse, not just that from anonymous accounts. Hopes were raised about the idea of giving people the option to limit their interaction with anonymous or non-verified accounts. Clearly, the will is there, and the amendment ensures that there is a way, too. I urge the Minister to accept the amendment, if he is serious about empowering users across the United Kingdom.
Now I move on to amendment 47. As it stands, the Bill does not adequately define “verification” or set minimum standards for how it will be carried out. There is a risk that platforms will treat this as a loophole in order to claim that their current, wholly inadequate processes count as verification. We also see entirely avoidable risks of platforms developing new verification processes that fail to protect users’ privacy and security or which serve merely to extend their market dominance to the detriment of independent providers. That is why it is vital that a statutory definition of identity verification is placed in the Bill.
I have already spoken at length today, and I appreciate that we are going somewhat slowly on the Bill, but it is complex legislation and this is an incredibly important detail that we need to get right if the Bill is to be truly world leading. Without a definition of identity verification, I fear that we are at risk of allowing technology, which can easily replicate the behaviours of a human being, to run rife, which would essentially invalidate the process of verification entirely.
I have also spoken at length about my concerns relating to AI technologies, the lack of future proofing in the Bill and the concerns that could arise in the future. I am sure that the Minister is aware that that could have devastating impacts on our democracy and our online safety more widely.
New clause 8 would ensure that the user empowerment duty and user verification work as intended by simply requiring Ofcom to set out principles and minimum standards for compliance. We note that the new clause is entirely compatible with the Government’s stated aims for the Bill and would provide a clearer framework for both regulated companies and the regulator. By its very nature, it is vital that in preparing the guidance Ofcom must ensure that the delicate balance that I touched on earlier between freedom of expression, the right to privacy and safety online is kept in mind throughout.
We also felt it important that, in drawing up the guidance a collaborative approach should be taken. Regulating the online space is a mammoth task, and while we have concerns about Ofcom’s independence, which I will gladly touch on later, we also know that it will be best for us all if it is required to draw on the expertise of other expert organisations in doing so.
The Chair
There is a Division in the House, so I will suspend the sitting for 15 minutes.
Chris Philp
I would be delighted to speak to the amendment, which would change the existing user empowerment duty in clause 14 to require category 1 services to enable adult users to see whether other users are verified. In effect, however, that objective already follows as a natural consequence of the duty in clause 14(6). When a user decides to filter out non-verified users, by definition such users will be able to see content only from verified users, so they could see from that who was verified and who was not. The effect intended by the amendment, therefore, is already achieved through clause 14(6).
Kirsty Blackman
I am sorry to disagree with the Minister so vigorously, but that is a rubbish argument. It does not make any sense. There is a difference between wanting to filter out everybody who is not verified and wanting to actually see if someone who is threatening someone else online is a verified or a non-verified user. Those are two very different things. I can understand why a politician, for example, might not want to filter out unverified users but would want to check whether a person was verified before going to the police to report a threat.
Chris Philp
When it comes to police investigations, if something is illegal and merits a report to the police, users should report it, regardless of whether someone is verified or not—whatever the circumstances. I would encourage any internet user to do that. That effectively applies on Twitter already; some people have blue ticks and some people do not, and people should report others to the police if they do something illegal, whether or not they happen to have a blue tick.
Amendment 47 seeks to create a definition of identity verification in clause 189. In addition, it would compel the person’s real name to be displayed. I understand the spirit of the amendment, but there are two reasons why I would not want to accept it and would ask hon. Members not to press it. First, the words “identity verification” are ordinary English words with a clear meaning and we do not normally define in legislation ordinary English words with a clear meaning. Secondly, the amendment would add the new requirement that, if somebody is verified, their real name has to be displayed, but I do not think that that is the effect of the drafting as it stands. Somebody may be verified, and the company knows who they are—if the police go to the company, they will have the verified information—but there is no obligation, as the amendment is drafted, for that information to be displayed publicly. The effect of that part of the amendment would be to force users to choose between disclosing their identity to everyone or having no control over who they interact with. That may not have been the intention, but I am not sure that this would necessarily make sense.
New clause 8 would place requirements on Ofcom about how to produce guidance on user identity verification and what that guidance must contain. We already have provisions on that in clause 58, which we will no doubt come to, although probably not later on today—maybe on Thursday. Clause 58 allows Ofcom to include in its regulatory guidance the principles and standards referenced in the new clause, which can then assist service providers in complying with their duties. Of course, if they choose to ignore the guidelines and do not comply with their duties, they will be subject to enforcement action, but we want to ensure that there is flexibility for Ofcom, in writing those guidelines, and for companies, in following those guidelines or taking alternative steps to meet their duty.
This morning, a couple of Members talked about the importance of remaining flexible and being open to future changes in technology and a wide range of user needs. We want to make sure that flexibility is retained. As drafted, new clause 8 potentially undermines that flexibility. We think that the powers set out in clause 58 give Ofcom the ability to set the relevant regulatory guidance.
Clause 14 implements the proposals made by my hon. Friend the Member for Stroud in her ten-minute rule Bill and the proposals made, as the shadow Minister has said, by a number of third-party stakeholders. We should all welcome the fact that these new user empowerment duties have now been included in the Bill in response to such widespread parliamentary lobbying.
Alex Davies-Jones
I am grateful to the Minister for giving way. I want to recount my own experience on this issue. He mentioned that anybody in receipt of anonymous abuse on social media should report it to the police, especially if it is illegal. On Thursday, I dared to tweet my opinions on the controversial Depp-Heard case in America. As a result of putting my head above the parapet, my Twitter mentions were an absolute sewer of rape threats and death threats, mainly from anonymous accounts. My Twitter profile was mocked up—I had devil horns and a Star of David on my forehead. It was vile. I blocked, deleted and moved on, but I also reported those accounts to Twitter, especially those that sent me rape threats and death threats.
That was on Thursday, and to date no action has been taken and I have not received any response from Twitter about any of the accounts I reported. The Minister said they should be reported to the police. If I reported all those accounts to the police, I would still be there now reporting them. How does he anticipate that this will be resourced so that social media companies can tackle the issue? That was the interaction resulting from just one tweet that I sent on Thursday, and anonymous accounts sent me a barrage of hate and illegal activity.
Chris Philp
The shadow Minister raises a very good point. Of course, what she experienced on Twitter was despicable, and I am sure that all members of the Committee would unreservedly condemn the perpetrators who put that content on there. Once the Bill is passed, there will be legal duties on Twitter to remove illegal content. At the moment, they do not exist, and there is no legal obligation for Twitter to remove that content, even though much of it, from the sound of it, would cross one of various legal thresholds. Perhaps some messages qualify as malicious communication, and others might cross other criminal thresholds. That legal duty does not exist at the moment, but when this Bill passes, for the first time there will be that duty to protect not just the shadow Minister but users across the whole country.
Question put, That the amendment be made.
Kim Leadbeater
I beg to move amendment 105, in clause 15, page 14, line 33, after “ensure” insert “the safety of people involved in UK elections and”.
The Chair
With this it will be convenient to discuss amendment 106, in clause 37, page 25, line 31, at end insert—
‘(2A) OFCOM must prepare and issue a code of practice for providers of Category 1 and 2(a) services describing measures recommended for the purpose of compliance with duties set out in section 15 concerning the safety of people taking part in elections.”
Kim Leadbeater
I rise to speak to amendments 105 and 106, in my name, on protecting democracy and democratic debate.
Within the Bill, there are significant clauses intended to prevent the spread of harm online, to protect women and girls against violence and to help prevent child sexual exploitation, while at the same time protecting the right of journalists to do their jobs. Although those clauses are not perfect, I welcome them.
The Bill is wide-ranging. The Minister talked on Second Reading about the power in clause 150 to protect another group—those with epilepsy—from being trolled with flashing images. That subject is close to my heart due to the campaign for Zach’s law—Zach is a young boy in my constituency. I know we will return to that important issue later in the Committee, and I thank the Minister for his work on it.
In protecting against online harm while preserving fundamental rights and values, we must also address the threats posed to those involved in the democratic process. Let me be clear: this is not self-serving. It is about not just MPs but all political candidates locally and nationally and those whose jobs facilitate the execution of our democratic process and political life: the people working on elections or for those elected to public office at all levels across the UK. These people must be defended from harm not only for their own protection, but to protect our democracy itself and, with it, the right of all our citizens to a political system capable of delivering on their priorities free from threats and intimidation.
Many other groups in society are also subjected to a disproportionate amount of targeted abuse, but those working in and around politics sadly receive more than almost any other people in this country, with an associated specific set of risks and harms. That does not mean messages gently, or even firmly, requesting us to vote one way or another—a staple of democratic debate—but messages of hate, abuse and threats intended to scare people in public office, grind them down, unfairly influence their voting intentions or do them physical and psychological harm. That simply cannot be an acceptable part of political life.
As I say, we are not looking for sympathy, but we have a duty to our democracy to try to stamp that out from our political discourse. Amendment 105 would not deny anybody the right to tell us firmly where we are going wrong—quite right, too—but it is an opportunity to draw the essential distinction between legitimately holding people in public life to account and illegitimate intimidation and harm.
The statistics regarding the scale of online abuse that MPs receive are shocking. In 2020, a University of Salford study found that MPs received over 7,000 abusive or hate-filled tweets a month. Seven thousand separate messages of harm a month on Twitter alone directed at MPs is far too many, but who in this room does not believe that the figure is almost certainly much higher today? Amnesty conducted a separate study in 2017 looking at the disproportionate amount of abuse that women and BAME MPs faced online, finding that my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott) was the recipient of almost a third of all the abusive tweets analysed, as alluded to already by the hon. Member for Edinburgh—
Kim Leadbeater
I knew that. [Laughter.]
Five years later, we continue to see significant volumes of racist, sexist and homophobic hate-filled abuse and threats online to politicians of all parties. That is unacceptable in itself, but we must ask whether this toxic environment helps to keep decent people in politics or, indeed, attracts good people into politics, so that our democracy can prosper into the future across the political spectrum. The reality we face is that our democracy is under attack online each and every day, and every day we delay acting is another day on which abuse becomes increasingly normalised or is just seen as part of the job for those who have put themselves forward for public service. This form of abuse harms society as a whole, so it deserves specific consideration in the Bill.
While elected Members and officials are not a special group of people deserving of more legal protections than anyone else, we must be honest that the abuse they face is distinct and specific to those roles and directly affects our democracy itself. It can lead to the most serious physical harm, with two Members of Parliament having been murdered in the last six years, and many others face death threats or threats of sexual or other violence on a daily basis. However, this is not just about harm to elected representatives; online threats are often seen first, and sometimes only, by their members of staff. They may not be the intended target, but they are often the people harmed most. I am sure we all agree that that is unacceptable and cannot continue.
All of us have probably reported messages and threats to social media platforms and the police, with varying degrees of success in terms of having them removed or the individuals prosecuted. Indeed, we sadly heard examples of that from my hon. Friend the shadow Minister. Often we are told that nothing can be done. Currently, the platforms look at their own rules to determine what constitutes freedom of speech or expression and what is hateful speech or harm. That fine line moves. There is no consistency across platforms, and we therefore urgently need more clarity and a legal duty in place to remove that content quickly.
Amendment 105 would explicitly include in the Bill protection and consideration for those involved in UK elections, whether candidates or staff. Amendment 106 would go further and place an obligation on Ofcom to produce a code of practice, to be issued to the platforms. It would define what steps platforms must take to protect those involved in elections and set out what content is acceptable or unacceptable to be directed at them.
Kirsty Blackman
I want to make a few comments on the amendment. As a younger female parliamentarian, I find that I am often asked to speak to young people about becoming an MP or getting involved in politics. I find it difficult to say to young women, “Yes, you should do this,” and most of the reason for that is what people are faced with online. It is because a female MP cannot have a Twitter account without facing abuse. I am sure male MPs do as well, but it tends to be worse for women.
We cannot engage democratically and with constituents on social media platforms without receiving abuse and sometimes threats as well. It is not just an abusive place to be—that does not necessarily meet the threshold for illegality—but it is pretty foul and toxic. There have been times when I have deleted Twitter from my phone because I just need to get away from the vile abuse that is being directed towards me. I want, in good conscience, to be able to make an argument to people that this is a brilliant job, and it is brilliant to represent constituents and to make a difference on their behalf at whatever level of elected politics, but right now I do not feel that I am able to do that.
When my footballing colleague, the hon. Member for Batley and Spen, mentions “UK elections” in the amendment, I assume she means that in the widest possible way—elections at all levels.
Kirsty Blackman
Sometimes we miss out the fact that although MPs face abuse, we have a level of protection as currently elected Members. Even if there were an election coming up, we have a level of security protection and access that is much higher than for anybody else challenging a candidate or standing in a council or a Scottish Parliament election. As sitting MPs, we already have an additional level of protection because of the security services we have in place. We need to remember, and I assume this is why the amendment is drawn in a pretty broad way, that everybody standing for any sort of elected office faces significant risk of harm—again, whether or not that meets the threshold for illegality.
There are specific things that have been mentioned. As has been said, epilepsy is specifically mentioned as a place where specific harm occurs. Given the importance of democracy, which is absolutely vital, we need to have a democratic system where people are able to stand in elections and make their case. Given the importance of democracy, which is absolutely vital, we need to have a democratic system where people are able to stand in elections and make their case. That is why we have election addresses and a system where the election address gets delivered through every single person’s door. There is an understanding and acceptance by people involved in designing democratic processes that the message of all candidates needs to get out there. If the message of all candidates cannot get out there because some people are facing significant levels of abuse online, then democracy is not acting in the way that it should be. These amendments are fair and make a huge amount of sense. They are protecting the most important tenets of democracy and democratic engagement.
I want to say something about my own specific experiences. We have reported people to the police and have had people in court over the messages they have sent, largely by email, which would not be included in the Bill, but there have also been some pretty creepy ones on social media that have not necessarily met the threshold. As has been said, it is my staff who have had to go to court and stand in the witness box to explain the shock and terror they have felt on seeing the email or the communication that has come in, so I think any provision should include that.
Finally, we have seen situations where people working in elections—this is not an airy-fairy notion, but something that genuinely happened—have been photographed and those pictures have been shared on social media, and they have then been abused as a result. They are just doing their job, handing out ballot papers or standing up and announcing the results on the stage, and they have to abide by the processes that are in place now. In order for us to have free and fair elections that are run properly and that people want to work at and support, we need to have that additional level of protection. The hon. Member for Batley and Spen made a very reasonable argument and I hope the Minister listened to it carefully.
Chris Philp
I have listened very carefully to both the hon. Member for Batley and Spen and the hon. Member for Aberdeen North. I agree with both of them that abuse and illegal activity directed at anyone, including people running for elected office, is unacceptable. I endorse and echo the comments they made in their very powerful and moving speeches.
In relation to the technicality of these amendments, what they are asking for is in the Bill already but in different places. This clause is about protecting content of “democratic importance” and concerns stopping online social media firms deleting content through over-zealous takedown. What the hon. Members are talking about is different. They are talking about abuse and illegal activities, such as rape threats, that people get on social media, particularly female MPs, as they both pointed out. I can point to two other places in the Bill where what they are asking for is delivered.
First, there are the duties around illegal content that we debated this morning. If there is content online that is illegal—some of the stuff that the shadow Minister referred to earlier sounds as if it would meet that threshold—then in the Bill there is a duty on social media firms to remove that content and to proactively prevent it if it is on the priority list. The route to prosecution will exist in future, as it does now, and the user-verification measures, if a user is verified, make it more likely for the police to identify the person responsible. In the context of identifying people carrying out abuse, I know the Home Office is looking at the Investigatory Powers Act 2016 as a separate piece of work that speaks to that issue.
So illegal content is dealt with in the illegal content provisions in the Bill, but later we will come to clause 150, which updates the Malicious Communications Act 1988 and creates a new harmful communications offence. Some of the communications that have been described may not count as a criminal offence under other parts of criminal law, but if they meet the test of harmful communication in clause 150, they will be criminalised and will therefore have to be taken down, and prosecution will be possible. In meeting the very reasonable requests that the hon. Members for Batley and Spen and for Aberdeen North have made, I would point to those two parts of the Bill.
Kirsty Blackman
But clause 150(5) says that if a message
“is, or is intended to be, a contribution to a matter of public interest”,
people are allowed to send it, which basically gives everybody a get-out clause in relation to anything to do with elections.
Kirsty Blackman
I know we are not discussing that part of the Bill, and if the Minister wants to come back to this when we get to clause 150, I have no problem with that.
Chris Philp
I will answer the point now, as it has been raised. Clause 150 categorically does not give a get-out-of-jail-free card or provide an automatic excuse. Clearly, there is no way that abusing a candidate for elected office with rape threats and so on could possibly be considered a matter of public interest. In fact, even if the abuse somehow could be considered as possibly contributing to public debate, clause 150(5) says explicitly in line 32 on page 127:
“but that does not determine the point”.
Even where there is some potentially tenuous argument about a contribution to a matter of public interest, which most definitely would not be the case for the rape threats that have been described, that is not determinative. It is a balancing exercise that gets performed, and I hope that puts the hon. Lady’s mind at rest.
Kim Leadbeater
The Minister makes a really valid point and is right about the impact on the individual. The point I am trying to make with the amendments is that this is about the impact on the democratic process, which is why I think it fits in with clause 15. It is not about how individuals feel; it is about the impact that that has on behaviours, and about putting the emphasis and onus on platforms to decide what is of democratic importance. In the evidence we had two weeks ago, the witnesses certainly did not feel comfortable with putting the onus on platforms. If we were to have a code of practice, we would at least give them something to work with on the issue of what is of democratic importance. It is about the impact on democracy, not just the harm to the individual involved.
Chris Philp
Clearly, if a communication is sufficiently offensive that it meets the criminal threshold, it is covered, and that would obviously harm the democratic process as well. If a communication was sufficiently offensive that it breached the harmful communication offence in clause 150, it would also, by definition, harm the democratic process, so communications that are damaging to democracy would axiomatically be caught by one thing or the other. I find it difficult to imagine a communication that might be considered damaging to democracy but that would not meet one of those two criteria, so that it was not illegal and would not meet the definition of a harmful communication.
My main point is that the existing provisions in the Bill address the kinds of behaviours that were described in those two speeches—the illegal content provisions, and the new harmful communication offence in clause 150. On that basis, I hope the hon. Member for Batley and Spen will withdraw the amendment, safe in the knowledge that the Bill addresses the issue that she rightly and reasonably raises.
Question put, That the amendment be made.
The Chair
With this it will be convenient to discuss the following:
Clause 16 stand part.
New clause 7—Report on duties to protect content of democratic importance and journalistic content—
“(1) The Secretary of State must publish a report which—
(a) reviews the extent to which Category 1 services have fulfilled their duties under—
(i) Clause 15; and
(ii) Clause 16;
(b) analyses the effectiveness of Clauses 15 and 16 in protecting against—
(i) foreign state actors;
(ii) extremist groups and individuals; and
(iii) sources of misinformation and disinformation.
(2) The report must be laid before Parliament within one year of this Act being passed.”
This new clause would require the Secretary of State to publish a report reviewing the effectiveness of Clauses 15 and 16.
Alex Davies-Jones
I will speak to clauses 15 and 16 and to new clause 7. The duties outlined in the clause, alongside clause 16, require platforms to have special terms and processes for handling journalistic and democratically important content. In respect of journalistic content, platforms are also required to provide an expedited appeals process for removed posts, and terms specifying how they will define journalistic content. There are, however, widespread concerns about both those duties.
As the Bill stands, we feel that there is too much discretion for platforms. They are required to define “journalistic” content, a role that they are completely unsuited to and, from what I can gather, do not want. In addition, the current drafting leaves the online space open to abuse. Individuals intent on causing harm are likely to apply to take advantage of either of those duties; masquerading as journalists or claiming democratic importance in whatever harm they are causing, and that could apply to almost anything. In the evidence sessions, we also heard about the concerns expressed brilliantly by Kyle Taylor from Fair Vote and Ellen Judson from Demos, that the definitions as they stand in the Bill thus far are broad and vague. However, we will come on to those matters later.
Ultimately, treating “journalistic” and “democratically important” content differently is unworkable, leaving platforms to make impossible judgments over, for example, when and for how long an issue becomes a matter of reasonable public debate, or in what settings a person is acting as a journalist. As the Minister knows, the duties outlined in the clause could enable a far-right activist who was standing in an election, or potentially even just supporting candidates in elections, to use all social media platforms. That might allow far-right figures to be re-platformed on to social media sites where they would be free to continue spreading hate.
The Bill indicates that content will be protected if created by a political party ahead of a vote in Parliament, an election or a referendum, or when campaigning on a live political issue—basically, anything. Can the Minister confirm whether the clause means that far-right figures who have been de-platformed for hate speech already must be reinstated if they stand in an election? Does that include far-right or even neo-Nazi political parties? Content and accounts that have been de-platformed from mainstream platforms for breaking terms of service should not be allowed to return to those platforms via this potential—dangerous—loophole.
As I have said, however, I know that these matters are complex and, quite rightly, exemptions must be in place to allow for free discussion around matters of the day. What cannot be allowed to perpetuate is hate sparked by bad actors using simple loopholes to avoid any consequences.
On clause 16, the Minister knows about the important work that Hope not Hate is doing in monitoring key far-right figures. I pay tribute to it for its excellent work. Many of them self-define as journalists and could seek to exploit this loophole in the Bill and propagate hate online. Some of the most high-profile and dangerous far-right figures in the UK, including Stephen Yaxley-Lennon, also known as Tommy Robinson, now class themselves as journalists. There are also far-right and conspiracy-theory so-called “news companies” such as Rebel Media and Urban Scoop. Both those replicate mainstream news publishers, but are used to spread misinformation and discriminatory content. Many of those individuals and organisations have been de-platformed already for consistently breaking the terms of service of major social media platforms, and the exemption could see them demand their return and have their return allowed.
New clause 7 would require the Secretary of State to publish a report reviewing the effectiveness of clauses 15 and 16. It is a simple new clause to require parliamentary scrutiny of how the Government’s chosen means of protecting content of democratic importance and content of journalistic content are working.
Hacked Off provided me with a list of people it found who have claimed to be journalists and who would seek to exploit the journalistic content duty, despite being banned from social media because they are racists or bad actors. First is Charles C. Johnson, a far-right activist who describes himself as an “investigative journalist”. Already banned from Twitter for saying he would “take out” a civil rights activist, he is also alleged to be a holocaust denier.
Secondly, we have Robert Stacy McCain. Robert has been banned from Twitter for participating in targeted abuse. He was a journalist for The Washington Post, but is alleged to have also been a member of the League of the South, a far-right group known to include racists. Then, there is Richard B. Spencer, a far-right journalist and former editor, only temporary banned for using overlapping accounts. He was pictured making the Nazi salute and has repeated Nazi propaganda. When Trump became President, he encouraged people to “party like it’s 1933”. Sadly, the list goes on and on.
Transparency is at the very heart of the Bill. The Minister knows we have concerns about clauses 15 and 16, as do many of his own Back Benchers. We have heard from my hon. Friend the Member for Batley and Spen how extremist groups and individuals and foreign state actors are having a very real impact on the online space. If the Minister is unwilling to move on tightening up those concepts, the very least he could commit to is a review that Parliament will be able to formally consider.
Chris Philp
I thank the shadow Minister for her comments and questions. I would like to pick up on a few points on the clauses. First, there was a question about what content of democratic importance and content of journalistic importance mean in practice. As with many concepts in the Bill, we will look to Ofcom to issue codes of practice specifying precisely how we might expect platforms to implement the various provisions in the Bill. That is set out in clause 37(10)(e) and (f), which appear at the top of page 37, for ease. Clauses 15 and 16 on content of democratic and journalistic importance are expressly referenced as areas where codes of practice will have to be published by Ofcom, which will do further work on and consult on that. It will not just publish it, but will go through a proper process.
The shadow Minister expressed some understandable concerns a moment ago about various extremely unpleasant people, such as members of the far right who might somehow seek to use the provisions in clauses 15 and 16 as a shield behind which to hide, to enable them to continue propagating hateful, vile content. I want to make it clear that the protections in the Bill are not absolute—it is not that if someone can demonstrate that what they are saying is of democratic importance, they can say whatever they like. That is not how the clauses are drafted.
I draw attention to subsection (2) of both clauses 15 and 16. At the end of the first block of text, just above paragraph (a), it says “taken into account”: the duty is to ensure that matters concerning the importance of freedom of expression relating to content of democratic importance are taken into account when making decisions. It is not an absolute prohibition on takedown or an absolute protection, but simply something that has to be taken into account.
If someone from the far right, as the shadow Minister described, was spewing out vile hatred, racism or antisemitism, and tried to use those clauses, the fact that they might be standing in an election might well be taken into account. However, in performing that balancing exercise, the social media platforms and Ofcom acting as enforcers—and the court if it ever got judicially reviewed—would weigh those things up and find that taking into account content of democratic importance would not be sufficient to outweigh considerations around vile racism, antisemitism or misogyny.
Alex Davies-Jones
The Minister mentions that it would be taken into account. How long does he anticipate it would be taken into account for, especially given the nature of an election? A short campaign could be a number of weeks, or something could be posted a day before an election, be deemed democratically important and have very serious and dangerous ramifications.
Chris Philp
As I say, if content was racist, antisemitic or flagrantly misogynistic, the balancing exercise is performed and the democratic context may be taken into account. I do not think the scales would tip in favour of leaving the content up. Even during an election period, I think common sense dictates that.
To be clear on the timing point that the hon. Lady asked about, the definition of democratic importance is not set out in hard-edged terms. It does not say, “Well, if you are in a short election period, any candidate’s content counts as of democratic importance.” It is not set out in a manner that is as black and white as that. If, for example, somebody was a candidate but it was just racist abuse, I am not sure how even that would count as democratic importance, even during an election period, because it would just be abuse; it would not be contributing to any democratic debate. Equally, somebody might not be a candidate, or might have been a candidate historically, but might be contributing to a legitimate debate after an election. That might be seen as being of democratic importance, even though they were not actually a candidate. As I said, the concept is not quite as black and white as that. The main point is that it is only to be taken into account; it is not determinative.
Alex Davies-Jones
I appreciate the Minister’s allowing me to come back on this. During the Committee’s evidence sessions, we heard of examples where bad-faith state actors were interfering in the Scottish referendum, hosting Facebook groups and perpetuating disinformation around the royal family to persuade voters to vote “Yes” to leave the United Kingdom. That disinformation by illegal bad-faith actors could currently come under both the democratic importance and journalistic exemptions, so would be allowed to remain for the duration of that campaign. Given the exemptions in the Bill, it could not be taken down but could have huge, serious ramifications for democracy and the security of the United Kingdom.
Chris Philp
I understand the points that the hon. Lady is raising. However, I do not think that it would happen in that way.
Chris Philp
No, I don’t. First of all, as I say, it is taken into account; it is not determinative. Secondly, on the point about state-sponsored disinformation, as I think I mentioned yesterday in response to the hon. Member for Liverpool, Walton, there is, as we speak, a new criminal offence of foreign interference being created in the National Security Bill. That will criminalise the kind of foreign interference in elections that she referred to. Because that would then create a new category of illegal content, that would flow through into this Bill. That would not be overridden by the duty to protect content of democratic importance set out here. I think that the combination of the fact that this is a balancing exercise, and not determinative, and the new foreign interference offence being created in the National Security Bill, will address the issue that the hon. Lady is raising—reasonably, because it has happened in this country, as she has said.
I will briefly turn to new clause 7, which calls for a review. I understand why the shadow Minister is proposing a review, but there is already a review mechanism in the Bill; it is to be found in clause 149, and will, of course, include a review of the way that clauses 15 and 16 operate. They are important clauses; we all accept that journalistic content and content of democratic importance is critical to the functioning of our society. Case law relating to article 10 of the European convention on human rights, for example, recognises content of journalistic importance as being especially critical. These two clauses seek to ensure that social media firms, in making their decisions, and Ofcom, in enforcing the firms, take account of that. However, it is no more than that: it is “take account”, it is not determinative.
Question put and agreed to.
Clause 15 accordingly ordered to stand part of the Bill.
Clause 16 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Steve Double.)
Online Safety Bill (Seventh sitting)
Thursday 9th June 2022
(3 years, 7 months ago)
Public Bill CommitteesOnline Safety Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 9 June 2022 - (9 Jun 2022)
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Chair
We are now sitting in public and proceedings are being broadcast. Please switch electronic devices to silent. Tea and coffee are not allowed during sittings. I have no objections to Members taking their jackets off—it is very warm in this room.
Clause 17
Duty about content reporting
Question proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)
Good morning, Ms Rees. It is a pleasure to serve once again under your chairmanship. I wondered whether the shadow Minister, the hon. Member for Pontypridd, wanted to speak first—I am always happy to follow her, if she would prefer that.
Chris Philp
I do my best.
Clauses 17 and 27 have similar effects, the former applying to user-to-user services and the latter to search services. They set out an obligation on the companies to put in place effective and accessible content reporting mechanisms, so that users can report issues. The clauses will ensure that service providers are made aware of illegal and harmful content on their sites. In relation to priority illegal content, the companies must proactively prevent it in the first place, but in the other areas, they may respond reactively as well.
The clause will ensure that anyone who wants to report illegal or harmful content can do so in a quick and reasonable way. We are ensuring that everyone who needs to do that will be able to do so, so the facility will be open to those who are affected by the content but who are not themselves users of the site. For example, that might be non-users who are the subject of the content, such as a victim of revenge pornography, or non-users who are members of a specific group with certain characteristics targeted by the content, such as a member of the Jewish community reporting antisemitic content. There is also facility for parents and other adults with caring responsibility for children, and adults caring for another adult, to report content. Clause 27 sets out similar duties in relation to search. I commend the clauses to the Committee.
Kirsty Blackman (Aberdeen North) (SNP)
I will talk about this later, when we come to a subsequent clause to which I have tabled some amendments—I should have tabled some to this clause, but unfortunately missed the chance to do so.
I appreciate the Minister laying out why he has designated the people covered by this clause; my concern is that “affected” is not wide enough. My logic is that, on the strength of these provisions, I might not be able to report racist content that I come across on Twitter if I am not the subject of that content—if I am not a member of a group that is the subject of the content or if I am not caring for someone who is the subject of it.
I appreciate what the Minister is trying to do, and I get the logic behind it, but I think the clause unintentionally excludes some people who would have a reasonable right to expect to be able to make reports in this instance. That is why I tabled amendments 78 and 79 to clause 28, about search functions, but those proposals would have worked reasonably for this clause as well. I do not expect a positive answer from the Minister today, but perhaps he could give consideration to my concern. My later amendments would change “affected person” to “any other person”. That would allow anyone to make a report, because if something is illegal content, it is illegal content. It does not matter who makes the report, and it should not matter that I am not a member of the group of people targeted by the content.
I report things all the time, particularly on Twitter, and a significant amount of it is nothing to do with me. It is not stuff aimed at me; it is aimed at others. I expect that a number of the platforms will continue to allow reporting for people who are outwith the affected group, but I do not want to be less able to report than I am currently, and that would be the case for many people who see concerning content on the internet.
Alex Davies-Jones
The hon. Lady is making a really important point. One stark example that comes to my mind is when English footballers suffered horrific racist abuse following the penalty shootout at the Euros last summer. Hundreds of thousands of people reported the abuse that they were suffering to the social media platforms on their behalf, in an outcry of solidarity and support, and it would be a shame if people were prevented from doing that.
Kirsty Blackman
I absolutely agree. I certainly do not think I am suggesting that the bigger platforms such as Twitter and Facebook will reduce their reporting mechanisms as a result of how the Bill is written. However, it is possible that newer or smaller platforms, or anything that starts after this legislation comes, could limit the ability to report on the basis of these clauses.
Barbara Keeley (Worsley and Eccles South) (Lab)
Good morning, Ms Rees.
It is important that users of online services are empowered to report harmful content, so that it can be removed. It is also important for users to have access to complaints procedures when wrong moderation decisions have been made. Reporting and complaint mechanisms are integral to ensuring that users are safe and that free speech is upheld, and we support these provisions in the Bill.
Clauses 17 and 18, and clauses 27 and 28, are two parts of the same process: content reporting by individual users, and the handling of content reported as a complaint. However, it is vital that these clauses create a system that works. That is the key point that Labour Members are trying to make, because the wild west system that we have at the moment does not work.
It is welcome that the Government have proposed a system that goes beyond the users of the platform and introduces a duty on companies. However, companies have previously failed to invest enough money in their complaints systems for the scale at which they are operating in the UK. The duties in the Bill are an important reminder to companies that they are part of a wider society that goes beyond their narrow shareholder interest.
One example of why this change is so necessary, and why Labour Members are broadly supportive of the additional duties, is the awful practice of image abuse. With no access to sites on which their intimate photographs are being circulated, victims of image abuse have very few if any routes to having the images removed. Again, the practice of image abuse has increased during the pandemic, including through revenge porn, which the Minister referred to. The revenge porn helpline reported that its case load more than doubled between 2019 and 2020.
These clauses should mean that people can easily report content that they consider to be either illegal, or harmful to children, if it is hosted on a site likely to be accessed by children, or, if it is hosted on a category 1 platform, harmful to adults. However, the Minister needs to clarify how these service complaints systems will be judged and what the performance metrics will be. For instance, how will Ofcom enforce against a complaint?
In many sectors of the economy, even with long-standing systems of regulation, companies can have tens of millions of customers reporting content, but that does not mean that any meaningful action can take place. The hon. Member for Aberdeen North has just told us how often she reports on various platforms, but what action has taken place? Many advocacy groups of people affected by crimes such as revenge porn will want to hear, in clear terms, what will happen to material that has been complained about. I hope the Minister can offer that clarity today.
Transparency in reporting will be vital to analysing trends and emerging types of harm. It is welcome that in schedule 8, which we will come to later, transparency reporting duties apply to the complaints process. It is important that as much information as possible is made public about what is going on in companies’ complaints and reporting systems. As well as the raw number of complaints, reporting should include what is being reported or complained about, as the Joint Committee on the draft Bill recommended last year. Again, what happens to the reported material will be an important metric on which to judge companies.
Finally, I will mention the lack of arrangements for children. We have tabled new clause 3, which has been grouped for discussion with other new clauses at the end of proceedings, but it is relevant to mention it now briefly. The Children’s Commissioner highlighted in her oral evidence to the Committee how children had lost faith in complaints systems. That needs to be changed. The National Society for the Prevention of Cruelty to Children has also warned that complaints mechanisms are not always appropriate for children and that a very low proportion of children have ever reported content. A child specific user advocacy body could represent the interests of child users and support Ofcom’s regulatory decisions. That would represent an important strengthening of protections for users, and I hope the Government will support it when the time comes.
Jane Stevenson (Wolverhampton North East) (Con)
I rise briefly to talk about content reporting. I share the frustrations of the hon. Member for Aberdeen North. The way I read the Bill was that it would allow users and affected persons, rather than “or” affected persons, to report content. I hope the Minister can clarify that that means affected persons who might not be users of a platform. That is really important.
Will the Minister also clarify the use of human judgment in these decisions? Many algorithms are not taking down some content at the moment, so I would be grateful if he clarified that there is a need for platforms to provide a genuine human judgment on whether content is harmful.
Kirsty Blackman
I want to raise an additional point about content reporting and complaints procedures. I met with representatives of Mencap yesterday, who raised the issue of the accessibility of the procedures that are in place. I appreciate that the Bill talks about procedures being accessible, but will the Minister give us some comfort about Ofcom looking at the reporting procedures that are in place, to ensure that adults with learning disabilities in particular can access those content reporting and complaints procedures, understand them and easily find them on sites?
That is a specific concern that Mencap raised on behalf of its members. A number of its members will be users of sites such as Facebook, but may find it more difficult than others to access and understand the procedures that are in place. I appreciate that, through the Bill, the Minister is making an attempt to ensure that those procedures are accessible, but I want to make sure they are accessible not just for the general public but for children, who may need jargon-free access to content reporting and complaints procedures, and for people with learning disabilities, who may similarly need jargon-free, easy-to-understand and easy-to-find access to those procedures.
Chris Philp
Let me try to address some of the questions that have been raised in this short debate, starting with the question that the hon. Member for Aberdeen North quite rightly asked at the beginning. She posed the question, “What if somebody who is not an affected person encountered some content and wanted to report it?” For example, she might encounter some racist content on Twitter or elsewhere and would want to be able to report it, even though she is not herself the target of it or necessarily a member of the group affected. I can also offer the reassurance that my hon. Friend the Member for Wolverhampton North East asked for.
The answer is to be found in clause 17(2), which refers to
“A duty to operate a service using systems and processes that allow users and”—
I stress “and”—“affected persons”. As such, the duty to offer content reporting is to users and affected persons, so if the hon. Member for Aberdeen North was a user of Twitter but was not herself an affected person, she would still be able to report content in her capacity as a user. I hope that provides clarification.
Kirsty Blackman
I appreciate that. That is key, and I am glad that this is wider than just users of the site. However, taking Reddit as an example, I am not signed up to that site, but I could easily stumble across content on it that was racist in nature. This clause would mean that I could not report that content unless I signed up to Reddit, because I would not be an affected person or a user of that site.
Chris Philp
I thank the hon. Lady for her clarificatory question. I can confirm that in order to be a user of a service, she would not necessarily have to sign up to it. The simple act of browsing that service, of looking at Reddit—not, I confess, an activity that I participate in regularly—regardless of whether or not the hon. Lady has an account with it, makes her a user of that service, and in that capacity she would be able to make a content report under clause 17(2) even if she were not an affected person. I hope that clears up the question in a definitive manner.
The hon. Lady asked in her second speech about the accessibility of the complaints procedure for children. That is strictly a matter for clause 18, which is the next clause, but I will quickly answer her question. Clause 18 contains provisions that explicitly require the complaints process to be accessible. Subsection (2)(c) states that the complaints procedure has to be
“easy to access, easy to use (including by children) and transparent”,
so the statutory obligation that she requested is there in clause 18.
Kirsty Blackman
Can the Minister explain the logic in having that phrasing for the complaints procedure but not for the content-reporting procedure? Surely it would also make sense for the content reporting procedure to use the phrasing
“easy to access, easy to use (including by children) and transparent.”
Chris Philp
There is in clause 17(2)
“a duty to operate a service that allows users and affected persons to easily report content which they consider to be content of a…kind specified below”,
which, of course, includes services likely to be accessed by children, under subsection (4). The words “easily report” are present in clause 17(2).
I will move on to the question of children reporting more generally, which the shadow Minister raised as well. Clearly, a parent or anyone with responsibility for a child has the ability to make a report, but it is also worth mentioning the power in clauses 140 to 142 to make super-complaints, which the NSPCC strongly welcomed its evidence. An organisation that represents a particular group—an obvious example is the NSPCC representing children, but it would apply to loads of other groups—has the ability to make super-complaints to Ofcom on behalf of those users, if it feels they are not being well treated by a platform. A combination of the parent or carer being able to make individual complaints, and the super-complaint facility, means that the points raised by Members are catered for. I commend the clause to the Committee.
Question put and agreed to.
Clause 17 accordingly ordered to stand part of the Bill.
Clause 18
Duties about complaints procedures
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 78, in clause 28, page 28, line 28, leave out “affected” and replace with “any other”
This amendment allows those who do not fit the definition of “affected person” to make a complaint about search content which they consider to be illegal.
Amendment 79, in clause 28, page 28, line 30, leave out “affected” and replace with “any other”
This amendment allows those who do not fit the definition of “affected person” to make a complaint about search content which they consider not to comply with sections 24, 27 or 29.
Clause 28 stand part.
New clause 1—Report on redress for individual complaints—
“(1) The Secretary of State must publish a report assessing options for dealing with appeals about complaints made under—
(a) section 18; and
(b) section 28
(2) The report must—
(a) provide a general update on the fulfilment of duties about complaints procedures which apply in relation to all regulated user-to-user services and regulated search services;
(b) assess which body should be responsible for a system to deal with appeals in cases where a complainant considers that a complaint has not been satisfactorily dealt with; and
(c) provide options for how the system should be funded, including consideration of whether an annual surcharge could be imposed on user-to-user services and search services.
(3) The report must be laid before Parliament within six months of the commencement of this Act.”
Barbara Keeley
I will speak to new clause 1. Although duties about complaints procedures are welcome, it has been pointed out that service providers’ user complaints processes are often obscure and difficult to navigate—that is the world we are in at the moment. The lack of any external complaints option for individuals who seek redress is worrying.
The Minister has just talked about the super-complaints mechanism—which we will come to later in proceedings—to allow eligible entities to make complaints to Ofcom about a single regulated service if that complaint is of particular importance or affects a particularly large number of service users or members of the public. Those conditions are constraints on the super-complaints process, however.
An individual who felt that they had been failed by a service’s complaints system would have no source of redress. Without redress for individual complaints once internal mechanisms have been exhausted, victims of online abuse could be left with no further options, consumer protections could be compromised, and freedom of expression could be impinged upon for people who felt that their content had been unfairly removed.
Various solutions have been proposed. The Joint Committee recommended the introduction of an online safety ombudsman to consider complaints for which recourse to internal routes of redress had not resulted in resolution and the failure to address risk had led to significant and demonstrable harm. Such a mechanism would give people an additional body through which to appeal decisions after they had come to the end of a service provider’s internal process. Of course, we as hon. Members are all familiar with the ombudsman services that we already have.
Concerns have been raised about the level of complaints such an ombudsman could receive. However, as the Joint Committee noted, complaints would be received only once the service’s internal complaints procedure had been exhausted, as is the case for complaints to Ofcom about the BBC. The new clause seeks to ensure that we find the best possible solution to the problem. There needs to be a last resort for users who have suffered serious harm on services. It is only through the introduction of an external redress mechanism that service providers can truly be held to account for their decisions as they impact on individuals.
Dame Maria Miller (Basingstoke) (Con)
I rise to contribute to the stand part debate on clauses 18 and 28. It was interesting, though, to hear the debate on clause 17, because it is right to ask how the complaints services will be judged. Will they work in practice? When we start to look at how to ensure that the legislation works in all eventualities, we need to ensure that we have some backstops for when the system does not work as it should.
It is welcome that there will be clear duties on providers to have operational complaints procedures—complaints procedures that work in practice. As we all know, many of them do not at the moment. As a result, we have a loss of faith in the system, and that is not going to be changed overnight by a piece of legislation. For years, people have been reporting things—in some cases, very serious criminal activity—that have not been acted on. Consumers—people who use these platforms—are not going to change their mind overnight and suddenly start trusting these organisations to take their complaints seriously. With that in mind, I hope that the Minister listened to the points I made on Second Reading about how to give extra support to victims of crimes or people who have experienced things that should not have happened online, and will look at putting in place the right level of support.
The hon. Member for Worsley and Eccles South talked about the idea of an ombudsman; it may well be that one should be in place to deal with situations where complaints are not dealt with through the normal processes. I am also quite taken by some of the evidence we received about third-party complaints processes by other organisations. We heard a bit about the revenge porn helpline, which was set up a few years ago when we first recognised in law that revenge pornography was a crime. The Bill creates a lot more victims of crime and recognises them as victims, but we are not yet hearing clearly how the support systems will adequately help that massively increased number of victims to get the help they need.
I will probably talk in more detail about this issue when we reach clause 70, which provides an opportunity to look at the—unfortunately—probably vast fines that Ofcom will be imposing on organisations and how we might earmark some of that money specifically for victim support, whether by funding an ombudsman or helping amazing organisations such as the revenge porn helpline to expand their services.
We must address this issue now, in this Bill. If we do not, all those fines will go immediately into the coffers of the Treasury without passing “Go”, and we will not be able to take some of that money to help those victims directly. I am sure the Government absolutely intend to use some of the money to help victims, but that decision would be at the mercy of the Treasury. Perhaps we do not want that; perhaps we want to make it cleaner and easier and have the money put straight into a fund that can be used directly for people who have been victims of crime or injustice or things that fall foul of the Bill.
I hope that the Minister will listen to that and use this opportunity, as we do in other areas, to directly passport fines for specific victim support. He will know that there are other examples of that that he can look at.
Kirsty Blackman
As the right hon. Member for Basingstoke has mentioned the revenge porn helpline, I will mention the NSPCC’s Report Remove tool for children. It does exactly the same thing, but for younger people—the revenge porn helpline is specifically only for adults. Both those tools together cover the whole gamut, which is massively helpful.
The right hon. Lady’s suggestion about the hypothecation of fines is a very good one. I was speaking to the NSPCC yesterday, and one of the issues that we were discussing was super-complaints. Although super-complaints are great and I am very glad that they are included in the Bill, the reality is that some of the third-sector organisations that are likely to be undertaking super-complaints are charitable organisations that are not particularly well funded. Given how few people work for some of those organisations and the amazing amount of work they do, if some of the money from fines could support not just victims but the initial procedure for those organisations to make super-complaints, it would be very helpful. That is, of course, if the Minister does not agree with the suggestion of creating a user advocacy panel, which would fulfil some of that role and make that support for the charitable organisations less necessary—although I am never going to argue against support for charities: if the Minister wants to hypothecate it in that way, that would be fantastic.
I tabled amendments 78 and 79, but the statement the Minister made about the definition of users gives me a significant level of comfort about the way that people will be able to access a complaints procedure. I am terribly disappointed that the Minister is not a regular Reddit user. I am not, either, but I am well aware of what Reddit entails. I have no desire to sign up to Reddit, but knowing that even browsing the site I would be considered a user and therefore able to report any illegal content I saw, is massively helpful. On that basis, I am comfortable not moving amendments 78 and 79.
On the suggestion of an ombudsman—I am looking at new clause 1—it feels like there is a significant gap here. There are ombudsman services in place for many other areas, where people can put in a complaint and then go to an ombudsman should they feel that it has not been appropriately addressed. As a parliamentarian, I find that a significant number of my constituents come to me seeking support to go to the ombudsman for whatever area it is in which they feel their complaint has not been appropriately dealt with. We see a significant number of issues caused by social media companies, in particular, not taking complaints seriously, not dealing with complaints and, in some cases, leaving illegal content up. Particularly in the initial stages of implementation—in the first few years, before companies catch up and are able to follow the rules put in place by the Bill and Ofcom—a second-tier complaints system that is removed from the social media companies would make things so much better than they are now. It would provide an additional layer of support to people who are looking to make complaints.
Dame Maria Miller
I am sure the hon. Lady will agree with me that it is not either/or—it is probably both. Ultimately, she is right that an ombudsman would be there to help deal with what I think will be a lag in implementation, but if someone is a victim of online intimate image abuse, in particular, they want the material taken down immediately, so we need to have organisations such as those that we have both mentioned there to help on the spot. It has to be both, has it not?
Kirsty Blackman
I completely agree. Both those helplines do very good work, and they are absolutely necessary. I would strongly support their continuation in addition to an ombudsman-type service. Although I am saying that the need for an ombudsman would likely be higher in the initial bedding-in years, it will not go away—we will still need one. With NHS complaints, the system has been in place for a long time, and it works pretty well in the majority of cases, but there are still cases it gets wrong. Even if the social media companies behave in a good way and have proper complaints procedures, there will still be instances of them getting it wrong. There will still be a need for a higher level. I therefore urge the Minister to consider including new clause 1 in the Bill.
Shaun Bailey (West Bromwich West) (Con)
It is a pleasure to see you in the Chair, Ms Rees, and to make my first contribution in Committee—it will be a brief one. It is great to follow the hon. Member for Aberdeen North, and I listened intently to my right hon. Friend the Member for Basingstoke, from whom I have learned so much having sat with her in numerous Committees over the past two years.
I will speak to clause 18 stand part, in particular on the requirements of the technical specifications that the companies will need to use to ensure that they fulfil the duties under the clause. The point, which has been articulated well by numerous Members, is that we can place such a duty on service providers, but we must also ensure that the technical specifications in their systems allow them to follow through and deliver on it.
I sat in horror during the previous sitting as I listened to the hon. Member for Pontypridd talking about the horrendous abuse that she has to experience on Twitter. What that goes to show is that, if the intention of this clause and the Bill are to be fulfilled, we must ensure that the companies enable themselves to have the specifications in their systems on the ground to deliver the requirements of the Bill. That might mean that the secondary legislation is slightly more prescriptive about what those systems look like.
It is all well and good us passing primary legislation in this place to try to control matters, but my fear is that if those companies do not have systems such that they can follow through, there is a real risk that what we want will not materialise. As we proceed through the Bill, there will be mechanisms to ensure that that risk is mitigated, but the point that I am trying to make to my hon. Friend the Minister is that we should ensure that we are on top of this, and that companies have the technical specifications in their complaints procedures to meet the requirements under clause 18.
We must ensure that we do not allow the excuse, “Oh, well, we’re a bit behind the times on this.” I know that later clauses seek to deal with that, but it is important that we do not simply fall back on excuses. We must embed a culture that allows the provisions of the clause to be realised. I appeal to the Minister to ensure that we deal with that and embed a culture that looks at striding forward to deal with complaints procedures, and that these companies have the technical capabilities on the ground so that they can deal with these things swiftly and in the right way. Ultimately, as my right hon. Friend the Member for Basingstoke said, it is all well and good us making these laws, but it is vital that we ensure that they can be applied.
Chris Philp
Let me address some of the issues raised in the debate. First, everyone in the House recognises the enormous problem at the moment with large social media firms receiving reports about harmful and even illegal content that they just flagrantly ignore. The purpose of the clause, and indeed of the whole Bill and its enforcement architecture, is to ensure that those large social media firms no longer ignore illegal and harmful content when they are notified about it. We agree unanimously on the importance of doing that.
The requirement for those firms to take the proper steps is set out in clause 18(2)(b), at the very top of page 18 —it is rather depressing that we are on only the 18th of a couple of hundred pages. That paragraph creates a statutory duty for a social media platform to take “appropriate action”—those are the key words. If the platform is notified of a piece of illegal content, or content that is harmful to children, or of content that it should take down under its own terms and conditions if harmful to adults, then it must do so. If it fails to do so, Ofcom will have the enforcement powers available to it to compel—ultimately, escalating to a fine of up to 10% of global revenue or even service disconnection.
Chris Philp
Let me develop the point before I give way. Our first line of defence is Ofcom enforcing the clause, but we have a couple of layers of additional defence. One of those is the super-complaints mechanism, which I have mentioned before. If a particular group of people, represented by a body such as the NSPCC, feel that their legitimate complaints are being infringed systemically by the social media platform, and that Ofcom is failing to take the appropriate action, they can raise that as a super-complaint to ensure that the matter is dealt with.
Chris Philp
I should give way to the hon. Member for Aberdeen North first, and then I will come to the shadow Minister.
Kirsty Blackman
I wanted to ask specifically about the resourcing of Ofcom, given the abilities that it will have under this clause. Will Ofcom have enough resource to be able to be that secondary line of defence?
Chris Philp
A later clause gives Ofcom the ability to levy the fees and charges it sees as necessary and appropriate to ensure that it can deliver the duties. Ofcom will have the power to set those fees at a level to enable it to do its job properly, as Parliament would wish it to do.
Barbara Keeley
This is the point about individual redress again: by talking about super-complaints, the Minister seems to be agreeing that it is not there. As I said earlier, for super-complaints to be made to Ofcom, the issue has to be of particular importance or to impact a particularly large number of users, but that does not help the individual. We know how much individuals are damaged; there must be a system of external redress. The point about internal complaints systems is that we know that they are not very good, and we require a big culture change to change them, but unless there is some mechanism thereafter, I cannot see how we are giving the individual any redress—it is certainly not through the super-complaints procedure.
Chris Philp
As I said explicitly a few moments ago, the hon. Lady is right to point out the fact that the super-complaints process is to address systemic issues. She is right to say that, and I think I made it clear a moment or two ago.
Whether there should be an external ombudsman to enforce individual complaints, rather than just Ofcom enforcing against systemic complaints, is a question worth addressing. In some parts of our economy, we have ombudsmen who deal with individual complaints, financial services being an obvious example. The Committee has asked the question, why no ombudsman here? The answer, in essence, is a matter of scale and of how we can best fix the issue. The volume of individual complaints generated about social media platforms is just vast. Facebook in the UK alone has tens of millions of users—I might get this number wrong, but I think it is 30 million or 40 million users.
Chris Philp
I will in a moment. The volume of complaints that gets generated is vast. The way that we will fix this is not by having an external policeman to enforce on individual complaints, but by ensuring that the systems and processes are set up correctly to deal with problems at this large scale. [Interruption.] The shadow Minister, the hon. Member for Pontypridd, laughs, but it is a question of practicality. The way we will make the internet safe is to make sure that the systems and processes are in place and effective. Ofcom will ensure that that happens. That will protect everyone, not just those who raise individual complaints with an ombudsman.
Several hon. Members rose—
Chris Philp
I can see that there is substantial demand to comment, so I shall start by giving way to my right hon. Friend the Member for Basingstoke.
Dame Maria Miller
The Minister is doing an excellent job explaining the complex nature of the Bill. Ultimately, however, as he and I know, it is not a good argument to say that this is such an enormous problem that we cannot have a process in place to deal with it. If my hon. Friend looks back at his comments, he will see that that is exactly the point he was making. Although it is possibly not necessary with this clause, I think he needs to give some assurances that later in the Bill he will look at hypothecating some of the money to be generated from fines to address the issues of individual constituents, who on a daily basis are suffering at the hands of the social media companies. I apologise for the length of my intervention.
Chris Philp
It is categorically not the Government’s position that this problem is too big to fix. In fact, the whole purpose of this piece of groundbreaking and world-leading legislation is to fix a problem of such magnitude. The point my right hon. Friend was making about the hypothecation of fines to support user advocacy is a somewhat different one, which we will come to in due course, but there is nothing in the Bill to prevent individual groups from assisting individuals with making specific complaints to individual companies, as they are now entitled to do in law under clauses 17 and 18.
The point about an ombudsman is a slightly different one—if an individual complaint is made to a company and the individual complainant is dissatisfied with the outcome of their individual, particular and personal complaint, what should happen? In the case of financial services, if, for example, someone has been mis-sold a mortgage and they have suffered a huge loss, they can go to an ombudsman who will bindingly adjudicate that individual, single, personal case. The point that I am making is that having hundreds of thousands or potentially millions of cases being bindingly adjudicated on a case-by- case basis is not the right way to tackle a problem of this scale. The right way to tackle the problem is to force the social media companies, by law, to systemically deal with all of the problem, not just individual problems that may end up on an ombudsman’s desk.
That is the power in the Bill. It deals at a systems and processes level, it deals on an industry-wide level, and it gives Ofcom incredibly strong enforcement powers to make sure this actually happens. The hon. Member for Pontypridd has repeatedly called for a systems and processes approach. This is the embodiment of such an approach and the only way to fix a problem of such magnitude.
Kim Leadbeater
I associate myself with the comments of the right hon. Member for Basingstoke. Surely, if we are saying that this is such a huge problem, that is an argument for greater stringency and having an ombudsman. We cannot say that this is just about systems. Of course it is about systems, but online harms—we have heard some powerful examples of this—are about individuals, and we have to provide redress and support for the damage that online harms do to them. We have to look at systemic issues, as the Minister is rightly doing, but we also have to look at individual cases. The idea of an ombudsman and greater support for charities and those who can support victims of online crime, as mentioned by the hon. Member for Aberdeen North, is really important.
Chris Philp
I thank the hon. Lady for her thoughtful intervention. There are two separate questions here. One is about user advocacy groups helping individuals to make complaints to the companies. That is a fair point, and no doubt we will debate it later. The ombudsman question is different; it is about whether to have a right of appeal against decisions by social media companies. Our answer is that, rather than having a third-party body—an ombudsman—effectively acting as a court of appeal against individual decisions by the social media firms, because of the scale of the matter, the solution is to compel the firms, using the force of law, to get this right on a systemic and comprehensive basis.
Chris Philp
I give way first to the hon. Member for Aberdeen North—I think she was first on her feet—and then I will come to the hon. Member for Pontypridd.
Kirsty Blackman
Does the Minister not think this is going to work? He is creating this systems and processes approach, which he suggests will reduce the thousands of complaints—complaints will be made and complaints procedures will be followed. Surely, if it is going to work, in 10 years’ time we are going to need an ombudsman to adjudicate on the individual complaints that go wrong. If this works in the way he suggests, we will not have tens of millions of complaints, as we do now, but an ombudsman would provide individual redress. I get what he is arguing, but I do not know why he is not arguing for both things, because having both would provide the very best level of support.
Chris Philp
I will address the review clause now, since it is relevant. If, in due course, as I hope and expect, the Bill has the desired effect, perhaps that would be the moment to consider the case for an ombudsman. The critical step is to take a systemic approach, which the Bill is doing. That engages the question of new clause 1, which would create a mechanism, probably for the reason the hon. Lady just set out, to review how things are going and to see if, in due course, there is a case for an ombudsman, once we see how the Bill unfolds in practice.
Chris Philp
Let me finish the point. It is not a bad idea to review it and see how it is working in practice. Clause 149 already requires a review to take place between two and four years after Royal Assent. For the reasons that have been set out, it is pretty clear from this debate that we would expect the review to include precisely that question. If we had an ombudsman on day one, before the systems and processes had had a chance to have their effect, I fear that the ombudsman would be overwhelmed with millions of individual issues. The solution lies in fixing the problem systemically.
Several hon. Members rose—
Chris Philp
I think the shadow Minister wanted to intervene, unless I have answered her point already.
Alex Davies-Jones
I wanted to reiterate the point that the hon. Member for Aberdeen North made, which the Minister has not answered. If he has such faith that the systems and processes will be changed and controlled by Ofcom as a result of the Bill, why is he so reluctant to put in an ombudsman? It will not be overwhelmed with complaints if the systems and processes work, and therefore protect victims. We have already waited far too long for the Bill, and now he says that we need to wait two to four years for a review, and even longer to implement an ombudsman to protect victims. Why will he not just put this in the Bill now to keep them safe?
Chris Philp
Because we need to give the new systems and processes time to take effect. If the hon. Lady felt so strongly that an ombudsman was required, she was entirely at liberty to table an amendment to introduce one, but she has not done so.
Jane Stevenson
I wonder whether Members would be reassured if companies were required to have a mechanism by which users could register their dissatisfaction, to enable an ombudsman, or perhaps Ofcom, to gauge the volume of dissatisfaction and bring some kind of group claim against the company. Is that a possibility?
Chris Philp
Yes. My hon. Friend hits the nail on the head. If there is a systemic problem and a platform fails to act appropriately not just in one case, but in a number of them, we have, as she has just described, the super-complaints process in clauses 140 to 142. Even under the Bill as drafted, without any changes, if a platform turns out to be systemically ignoring reasonable complaints made by the public and particular groups of users, the super-complainants will be able to do exactly as she describes. There is a mechanism to catch this—it operates not at individual level, but at the level of groups of users, via the super-complaint mechanism—so I honestly feel that the issue has been addressed.
When the numbers are so large, I think that the super-complaint mechanism is the right way to push Ofcom if it does not notice. Obviously, the first line of defence is that companies comply with the Bill. The second line of defence is that if they fail to do so, Ofcom will jump on them. The third line of defence is that if Ofcom somehow does not notice, a super-complaint group—such as the NSPCC, acting for children—will make a super-complaint to Ofcom. We have three lines of defence, and I submit to the Committee that they are entirely appropriate.
Barbara Keeley
The Minister said that the Opposition had not tabled an amendment to bring in an ombudsman.
Barbara Keeley
On this clause. What we have done, however—we are debating it now—is to table a new clause to require a report on redress for individual complaints. The Minister talks about clause 149 and a process that will kick in between two and five years away, but we have a horrendous problem at the moment. I and various others have described the situation as the wild west, and very many people—thousands, if not millions, of individuals—are being failed very badly. I do not see why he is resisting our proposal for a report within six months of the commencement of the Act, which would enable us to start to see at that stage, not two to five years down the road, how these systems—he is putting a lot of faith in them—were turning out. I think that is a very sound idea, and it would help us to move forward.
Chris Philp
The third line of defence—the super-complaint process—is available immediately, as I set out a moment ago. In relation to new clause 1, which the hon. Lady mentioned a moment ago, I think six months is very soon for a Bill of this magnitude. The two-to-five-year timetable under the existing review mechanism in clause 149 is appropriate.
Although we are not debating clause 149, I hope, Ms Rees, that you will forgive me for speaking about it for a moment. If Members turn to pages 125 and 126 and look at the matters covered by the review, they will see that they are extraordinarily comprehensive. In effect, the review covers the implementation of all aspects of the Bill, including the need to minimise the harms to individuals and the enforcement and information-gathering powers. It covers everything that Committee members would want to be reviewed. No doubt as we go through the Bill we will have, as we often do in Bill Committee proceedings, a number of occasions on which somebody tables an amendment to require a review of x, y or z. This is the second such occasion so far, I think, and there may be others. It is much better to have a comprehensive review, as the Bill does via the provisions in clause 149.
Question put and agreed to.
Clause 18 accordingly ordered to stand part of the Bill.
Clause 19
Duties about freedom of expression and privacy
Question proposed, That the clause stand part of the Bill.
Chris Philp
Clause 19, on user-to-user services, and its associated clause 29, which relates to search services, specify a number of duties in relation to freedom of expression and privacy. In carrying out their safety duties, in-scope companies will be required by clause 19(2) to have regard to the importance of protecting users’ freedom of expression and privacy.
Let me pause for a moment on this issue. There has been some external commentary about the Bill’s impact on freedom of expression. We have already seen, via our discussion of a previous clause, that there is nothing in the Bill that compels the censorship of speech that is legal and not harmful to children. I put on the record again the fact that nothing in the Bill requires the censorship of legal speech that poses no harm to children.
We are going even further than that. As far as I am aware, for the first time ever there will be a duty on social media companies, via clause 19(2), to have regard to freedom of speech. There is currently no legal duty at all on platforms to have regard to freedom of speech. The clause establishes, for the first time, an obligation to have regard to freedom of speech. It is critical that not only Committee members but others more widely who consider the Bill should bear that carefully in mind. Besides that, the clause speaks to the right to privacy. Existing laws already speak to that, but the clause puts it in this Bill as well. Both duties are extremely important.
In addition, category 1 service providers—the really big ones—will need proactively to assess the impact of their policies on freedom of expression and privacy. I hope all Committee members will strongly welcome the important provisions I have outlined.
Barbara Keeley
As the Minister says, clauses 19 and 29 are designed to provide a set of balancing provisions that will require companies to have regard to freedom of expression and privacy when they implement their safety duties. However, it is important that companies cannot use privacy and free expression as a basis to argue that they can comply with regulation in less substantive ways. That is a fear here.
Category 1 providers will need to undertake an impact assessment to determine the impact of their product and safety decisions on freedom of expression, but it is unclear whether that applies only in respect of content that is harmful to adults. Unlike with the risk assessments for the illegal content and child safety duties set out in part 3, chapter 2, these clauses do not set expectations about whether risk assessments are of a suitable and sufficient quality. It is also not clear what powers Ofcom has at its disposal to challenge any assessments that it considers insufficient or that reach an inappropriate or unreasonable assessment of how to balance fundamental rights. I would appreciate it if the Minister could touch on that when he responds.
The assumption underlying these clauses is that privacy and free expression may need to act as a constraint on safety measures, but I believe that that is seen quite broadly as simplistic and potentially problematic. To give one example, a company could argue that end-to-end encryption is important for free expression, and privacy could justify any adverse impact on users’ safety. The subjects of child abuse images, which could more easily be shared because of such a decision, would see their safety and privacy rights weakened. Such an argument fails to take account of the broader nuance of the issues at stake. Impacts on privacy and freedom of expression should therefore be considered across a range of groups rather than assuming an overarching right that applies equally to all users.
Similarly, it will be important that Ofcom understands and delivers its functions in relation to these clauses in a way that reflects the complexity and nuance of the interplay of fundamental rights. It is important to recognise that positive and negative implications for privacy and freedom of expression may be associated with any compliance decision. I think the Minister implied that freedom of speech was a constant positive, but it can also have negative connotations.
Kirsty Blackman
I am pleased that the clause is in the Bill, and I think it is a good one to include. Can the Minister reaffirm what he said on Tuesday about child sexual abuse, and the fact that the right to privacy does not trump the ability—particularly with artificial intelligence—to search for child sexual abuse images?
Chris Philp
I confirm what the hon. Lady has just said. In response to the hon. Member for Worsley and Eccles South, it is important to say that the duty in clause 19 is “to have regard”, which simply means that a balancing exercise must be performed. It is not determinative; it is not as if the rights in the clause trump everything else. They simply have to be taken into account when making decisions.
To repeat what we discussed on Tuesday, I can explicitly and absolutely confirm to the hon. Member for Aberdeen North that in my view and the Government’s, concerns about freedom of expression or privacy should not trump platforms’ ability to scan for child sexual exploitation and abuse images or protect children. It is our view that there is nothing more important than protecting children from exploitation and sexual abuse.
We may discuss this further when we come to clause 103, which develops the theme a little. It is also worth saying that Ofcom will be able to look at the risk assessments and, if it feels that they are not of an adequate standard, take that up with the companies concerned. We should recognise that the duty to have regard to freedom of expression is not something that currently exists. It is a significant step forward, in my view, and I commend clauses 19 and 29 to the Committee.
Nick Fletcher (Don Valley) (Con)
I have been contacted by a number of people about this clause, and they have serious concerns about the “have regard” statement. The Christian Institute said that it was
“promised ‘considerably stronger protections for free speech’, but the Bill does not deliver. Internet companies will be under ‘a duty to have regard to the importance of’ protecting free speech,”
but a “have regard” duty
“has no weight behind it. It is perfectly possible to…have regard to something…and then ignore it in practice.”
The “have regard” duty is not strong enough, and it is a real concern for a lot of people out there. Protecting children is absolutely imperative, but there are serious concerns when it comes to freedom of speech. Can the Minister address them for me?
Chris Philp
As I have said, at the moment there is nothing at all. Platforms such as Facebook can and do arbitrarily censor content with little if any regard for freedom of speech. Some platforms have effectively cancelled Donald Trump while allowing the Russian state to propagate shocking disinformation about the Russian invasion of Ukraine, so there is real inconsistency and a lack of respect for freedom of speech. This at least establishes something where currently there is nothing. We can debate whether “have regard to” is strong enough. We have heard the other point of view from the other side of the House, which expressed concern that it might be used to allow otherwise harmful content, so there are clearly arguments on both sides of the debate. The obligation to have regard does have some weight, because the issue cannot be completely ignored. I do not think it would be adequate to simply pay lip service to it and not give it any real regard, so I would not dismiss the legislation as drafted.
I would point to the clauses that we have recently discussed, such as clause 15, under which content of democratic importance—which includes debating current issues and not just stuff said by an MP or candidate—gets additional protection. Some of the content that my hon. Friend the Member for Don Valley referred to a second ago would probably also get protection under clause 14, under which content of democratic importance has to be taken in account when making decisions about taking down or removing particular accounts. I hope that provides some reassurance that this is a significant step forwards compared with where the internet is today.
Alex Davies-Jones
I share the Minister’s sentiments about the Bill protecting free speech; we all want to protect that. He mentions some of the clauses we debated on Tuesday regarding democratic importance. Some would say that debating this Bill is of democratic importance. Since we started debating the Bill on Tuesday, and since I have mentioned some of the concerns raised by stakeholders and others about the journalistic exemption and, for example, Tommy Robinson, my Twitter mentions have been a complete sewer—as everyone can imagine. One tweet I received in the last two minutes states:
“I saw your vicious comments on Tommy Robinson…The only reason you want to suppress him is to bury the Pakistani Muslim rape epidemic”
in this country. Does the Minister agree that that is content of democratic importance, given we are debating this Bill, and that it should remain on Twitter?
Chris Philp
That sounds like a very offensive tweet. Could the hon. Lady read it again? I didn’t quite catch it.
Alex Davies-Jones
Yes:
“I saw your vicious comments on Tommy Robinson…The only reason you want to suppress him is to bury the Pakistani Muslim rape epidemic”
in this country. It goes on:
“this is a toxic combination of bloc vote grubbing and woke”
culture, and there is a lovely GIF to go with it.
Chris Philp
I do not want to give an off-the-cuff assessment of an individual piece of content—not least because I am not a lawyer. It does not sound like it meets the threshold of illegality. It most certainly is offensive, and that sort of matter is one that Ofcom will set out in its codes of practice, but there is obviously a balance between freedom of speech and content that is harmful, which the codes of practice will delve into. I would be interested if the hon. Lady could report that to Twitter and then report back to the Committee on what action it takes.
Chris Philp
At the moment, there is no legal obligation to do anything about it, which is precisely why this Bill is needed, but let us put it to the test.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clause 20
Record-keeping and review duties
Question proposed, That the clause stand part of the Bill.
Barbara Keeley
Record-keeping and review duties on in-scope services make up an important function of the regulatory regime that we are discussing today. Platforms will need to report all harms identified and the action taken in response to this, in line with regulation. The requirements to keep records of the action taken in response to harm will be vital in supporting the regulator to make effective decisions about regulatory breaches and whether company responses are sufficient. That will be particularly important to monitor platforms’ responses through risk assessments—an area where some charities are concerned that we will see under-reporting of harms to evade regulation.
Evidence of under-reporting can be seen in the various transparency reports that are currently being published voluntarily by sites, where we are not presented with the full picture and scale of harm and the action taken to address that harm is thus obscured.
As with other risk assessments, the provisions in clauses 20 and 30 could be strengthened through a requirement on in-scope services to publish their risk assessments. We have made that point many times. Greater transparency would allow researchers and civil society to track harms and hold services to account.
Chris Philp
The shadow Minister has eloquently introduced the purpose and effect of the clause, so I shall not repeat what she has said. On her point about publication, I repeat the point that I made on Tuesday, which is that the transparency requirements—they are requirements, not options—set out in clause 64 oblige Ofcom to ensure the publication of appropriate information publicly in exactly the way she requests.
Question put and agreed to.
Clause 20 accordingly ordered to stand part of the Bill.
Clauses 21 to 24 ordered to stand part of the Bill.
Clause 25
Children’s risk assessment duties
Amendment proposed: 16, in clause 25, page 25, line 10, at end insert—
“(3A) A duty for the children’s risk assessment to be approved by either—
(a) the board of the entity; or, if the organisation does not have a board structure,
(b) a named individual who the provider considers to be a senior manager of the entity, who may reasonably be expected to be in a position to ensure compliance with the children’s risk assessment duties, and reports directly into the most senior employee of the entity.” —(Alex Davies-Jones.)
This amendment seeks to ensure that regulated companies’ boards or senior staff have responsibility for children’s risk assessments.
The Chair
I call Kirsty Blackman to move amendment 22. [Interruption.] Sorry—my bad, as they say. I call Barbara Keeley to move amendment 22.
Barbara Keeley
I beg to move amendment 22, in clause 31, page 31, line 17, leave out subsection (3).
This amendment removes the condition that applies a child use test to a service or part of a service.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clause 32 stand part.
That schedule 3 be the Third schedule to the Bill.
Clause 33 stand part.
Barbara Keeley
The purpose of the amendment is to remove the child use test from the children’s access assessment and to make sure that any service likely to be accessed by children is within the scope of the child safety duty. The amendment is supported by the NSPCC and other children’s charities.
Children require protection wherever they are online. I am sure that every Committee member believes that. The age-appropriate design code from the Information Commissioner’s Office requires all services that are likely to be accessed by children to provide high levels of data protection and privacy. Currently, the Bill will regulate only user-to-user and search services that have a significant number of child users or services for which children form a significant part of their user base. It will therefore not apply to all services that fall within the scope of the ICO’s code, creating a patchwork of regulation that could risk uncertainty, legal battles and unnecessary complexity. It might also create a perverse incentive for online services to stall the introduction of their child safety measures until Ofcom has the capacity to investigate and reach a determination on the categorisation of their sites.
The inclusion of a children’s access assessment in the Bill may result in lower standards of protection, with highly problematic services such as Telegram and OnlyFans able to claim that they are excluded from the child safety duties because children do not account for a significant proportion of their user base. However, evidence has shown that children have been able to access those platforms.
Other services will remain out of the scope of the Bill as currently drafted. They include harmful blogs that promote life-threatening behaviours, such as pro-anorexia sites with provider-generated rather than user-generated content; some of the most popular games among children that do not feature user-generated content but are linked to increasing gambling addiction among children, and through which some families have lost thousands of pounds; and other services with user-generated content that is harmful but does not affect an appreciable number of children. That risks dozens, hundreds or even thousands of children falling unprotected.
Parents have the reasonable expectation that, under the new regime introduced by the Bill, children will be protected wherever they are online. They cannot be expected to be aware of exemptions or distinctions between categories of service. They simply want their children to be protected and their rights upheld wherever they are.
As I say, children have the right to be protected from harmful content and activity by any platform that gives them access. That is why the child user condition in clause 31 should be deleted from the Bill. As I have said, the current drafting could leave problematic platforms out of scope if they were to claim that they did not have a significant number of child users. It should be assumed that platforms are within the scope of the child safety duties unless they can provide evidence that children cannot access their sites, for example through age verification tools.
Although clause 33 provides Ofcom with the power to determine that a platform is likely to be accessed by children, this will necessitate Ofcom acting on a company-by-company basis to bring problematic sites back into scope of the child safety duties. That will take considerable time, and it will delay children receiving protection. It would be simpler to remove the child user condition from clause 31, as I have argued.
Kirsty Blackman
I would have been quite happy to move the amendment, but I do not think the Opposition would have been terribly pleased with me if I had stolen it. I have got my name on it, and I am keen to support it.
As I have said, I met the NSPCC yesterday, and we discussed how clause 31(3) might work, should the Minister decide to keep it in the Bill and not accept the amendment. There are a number of issues with the clause, which states that the child user condition is met if
“a significant number of children”
are users of the service, or if the service is
“likely to attract a significant number of users who are children”.
I do not understand how that could work. For example, a significant number of people who play Fortnite are adults, but a chunk of people who play it are kids. If some sort of invisible percentage threshold is applied in such circumstances, I do not know whether that threshold will be met. If only 20% of Fortnite users are kids, and that amounts only to half a million children, will that count as enough people to meet the child access assessment threshold?
Fortnite is huge, but an appropriate definition is even more necessary for very small platforms and services. With the very far-right sites that we have mentioned, it may be that only 0.5% of their users are children, and that may amount only to 2,000 children—a very small number. Surely, because of the risk of harm if children access these incredibly damaging and dangerous sites that groom people for terrorism, they should have a duty to meet the child access requirement threshold, if only so that we can tell them that they must have an age verification process—they must be able to say, “We know that none of our users are children because we have gone through an age verification process.” I am keen for children to be able to access the internet and meet their friends online, but I am keen for them to be excluded from these most damaging sites. I appreciate the action that the Government have taken in relation to pornographic content, but I do not think that this clause allows us to go far enough in stopping children accessing the most damaging content that is outwith pornographic content.
The other thing that I want to raise is about how the number of users will be calculated. The Minister made it very clear earlier on, and I thank him for doing so, that an individual does not have to be a registered user to be counted as a user of a site. People can be members of TikTok, for example, only if they are over 13. TikTok has some hoops in place—although they are not perfect—to ensure that its users are over 13, and to be fair, it does proactively remove users that it suspects are under 13, particularly if they are reported. That is a good move.
My child is sent links to TikTok videos through WhatsApp, however. He clicks on the links and is able to watch the videos, which will pop up in the WhatsApp mini-browser thing or in the Safari browser. He can watch the videos without signing up as a registered user of TikTok and without using the platform itself—the videos come through Safari, for example, rather than through the app. Does the Minister expect that platforms will count those people as users? I suggest that the majority of people who watch TikTok by those means are doing so because they do not have a TikTok account. Some will not have accounts because they are under 13 and are not allowed to by TikTok or by the parental controls on their phones.
My concern is that, if the Minister does not provide clarity on this point, platforms will count just the number of registered users, and will say, “It’s too difficult for us to look at the number of unregistered users, so in working out whether we meet the criteria, we are not even going to consider people who do not access our specific app or who are not registered users in some way, shape or form.” I have concerns about the operation of the provisions and about companies using that “get out of jail free” card. I genuinely believe that the majority of those who access TikTok other than through its platform are children and would meet the criteria. If the Minister is determined to keep subsection (3) and not accept the amendment, I feel that he should make it clear that those users must be included in the counting by any provider assessing whether it needs to fulfil the child safety duties.
Kim Leadbeater
I agree with thon. Lady’s important point, which feeds into the broader question of volume versus risk—no matter how many children see something that causes harm and damage, one is one too many—and the categorisation of service providers into category 1 to category 2A and category 2B. The depth of the risk is the problem, rather than the number of people who might be affected. The hon. Lady also alluded to age verification—I am sure we will come to that at some point—which is another can of worms. The important point, which she made well, is about volume versus risk. The point is not how many children see something; even if only a small number of children see something, the damage has been done.
Kirsty Blackman
I absolutely agree. In fact, I have tabled an amendment to widen category 1 to include sites with the highest risk of harm. The Minister has not said that he agrees with my amendment specifically, but he seems fairly amenable to increasing and widening some duties to include the sites of highest risk. I have also tabled another new clause on similar issues.
I am glad that these clauses are in the Bill—a specific duty in relation to children is important and should happen—but as the shadow Minister said, clause 31(3) is causing difficulty. It is causing difficulty for me and for organisations such as the NSPCC, which is unsure how the provisions will operate and whether they will do so in the way that the Government would like.
I hope the Minister will answer some of our questions when he responds. If he is not willing to accept the amendment, will he give consideration to how the subsection could be amended in the future—we have more stages, including Report and scrutiny in the other place—to ensure that there is clarity and that the intention of the purpose is followed through, rather than being an intention that is not actually translated into law?
Chris Philp
Colleagues have spoken eloquently to the purpose and effect of the various clauses and schedule 3 —the stand part component of this group. On schedule 3, the shadow Minister, the hon. Member for Worsley and Eccles South, asked about timing. The Government share her desire to get this done as quickly as possible. In its evidence a couple of weeks ago, Ofcom said it would be publishing its road map before the summer, which would set out the timetable for moving all this forward. We agree that that is extremely important.
I turn to one or two questions that arose on amendment 22. As always, the hon. Member for Aberdeen North asked a number of very good questions. The first was whether the concept of a “significant number” applied to a number in absolute terms or a percentage of the people using a particular service, and which is looked at when assessing what is significant. The answer is that it can be either—either a large number in absolute terms, by reference to the population of the whole United Kingdom, or a percentage of those using the service. That is expressed in clause 31(4)(a). Members will note the “or” there. It can be a number in proportion to the total UK population or the proportion using a service. I hope that answers the hon. Member’s very good question.
Kirsty Blackman
My concern is where services that meet neither of those criteria—they do not meet the “significant number” criterion in percentage terms because, say, only 0.05% of their users are children, and they do not meet it in population terms, because they are a pretty small platform and only have, say, 1,000 child users—but those children who use the platform are at very high risk because of the nature of the platform or the service provided. My concern is for those at highest risk where neither of the criteria are met and the service does not have to bother conducting any sort of age verification or access requirements.
Chris Philp
I am concerned to ensure that children are appropriately protected, as the hon. Lady sets out. Let me make a couple of points in that area before I address that point.
The hon. Lady asked another question earlier, about video content. She gave the example of TikTok videos being viewed or accessed not directly on TikTok but via some third-party means, such as a WhatsApp message. First, it is worth emphasising again that in order to count as a user, a person does not have to be registered and can simply be viewing the content. Secondly, if someone is viewing something through another service, such as WhatsApp—the hon. Lady used the example of browsing the internet on another site—the duty will bite at the level of WhatsApp, and it will have to consider the content that it is providing access to. As I said, someone does not have to be registered with a service in order to count as a user of that service.
On amendment 22, there is a drafting deficiency, if I may put it politely—this is a point of drafting rather than of principle. The amendment would simply delete subsection (3), but there would still be references to the “child user condition”—for example, the one that appears on the same page of the Bill at line 11. If the amendment were adopted as drafted, it would end up leaving references to “child user condition” in the Bill without defining what it meant, because we would have deleted the definition.
Barbara Keeley
Is the Minister coming on to say that he is accepting what we are saying here?
Chris Philp
No, is the short answer. I was just mentioning in passing that there is that drafting issue.
On the principle, it is worth being very clear that, when it comes to content or matters that are illegal, that applies to all platforms, regardless of size, where children are at all at risk. In schedule 6, we set out a number of matters—child sexual exploitation and abuse, for example—as priority offences that all platforms have to protect children from proactively, regardless of scale.
Barbara Keeley
The Minister has not addressed the points I raised. I specifically raised—he has not touched on this—harmful pro-anorexia blogs, which we know are dangerous but are not in scope, and games that children access that increase gambling addiction. He says that there is separate legislation for gambling addiction, but families have lost thousands of pounds through children playing games linked to gambling addiction. There are a number of other services that do not affect an appreciable number of children, and the drafting causes them to be out of scope.
The Chair
There is no hard and fast rule about moving the Adjournment motion. It is up to the Government Whip.
Chris Philp
I have a few more things to say, but I am happy to finish here if it is convenient.
Ordered, That the debate be now adjourned.—(Steve Double.)
Online Safety Bill (Eighth sitting)
Thursday 9th June 2022
(3 years, 7 months ago)
Public Bill CommitteesOnline Safety Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 9 June 2022 - (9 Jun 2022)
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Chair
I remind the Committee that with this we are discussing the following:
Clause stand part.
Clause 32 stand part.
That schedule 3 be the Third schedule to the Bill.
Clause 33 stand part.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)
When the sitting was suspended for lunch, I was concluding my remarks and saying that where children are the victim of illegal activity or illegal content, all of that is covered in other aspects of the Bill. For areas such as gambling, we have separate legislation that protects children. In relation to potentially harmful content, the reason there is a “significant number” test for the child user condition that we are debating is that, without it, platforms that either would not have any children accessing them or had nothing of any concern on them—such as a website about corporation tax—would have an unduly burdensome and disproportionate obligation placed on them. That is why there is the test—just to ensure that there is a degree of proportionality in these duties. We find similar qualifications in other legislation; that includes the way the age-appropriate design code works. Therefore, I respectfully resist the amendment.
Question put, That the amendment be made.
Barbara Keeley (Worsley and Eccles South) (Lab)
I beg to move amendment 23, in clause 34, page 33, line 41, after “service” insert “that targets users”.
The Chair
With this it will be convenient to discuss the following:
Amendment 24, in clause 35, page 34, line 34, after “service” insert “that targets users”.
New clause 5—Duty to distinguish paid-for advertisements—
“(1) A provider of a Category 2A service must operate the service using systems and processes designed to clearly distinguish to users of that service paid-for advertisements from all other content appearing in or via search results of the service.
(2) The systems and processes described under subsection (1)—
(a) must include clearly displaying the words “paid-for advertisement” next to any paid-for advertisement appearing in or via search results of the service, and
(b) may include measures such as but not limited to the application of colour schemes to paid-for advertisements appearing in or via search results of the service.
(3) The reference to paid-for advertisements appearing “in or via search results of a search service” does not include a reference to any advertisements appearing as a result of any subsequent interaction by a user with an internet service other than the search service.
(4) If a person is the provider of more than one Category 2A service, the duties set out in this section apply in relation to each such service.
(5) The duties set out in this section extend to the design, operation and use of a Category 2A service that hosts paid-for advertisements targeted at users of that service in the United Kingdom.
(6) For the meaning of “Category 2A service”, see section 81 (register of a categories of service).
(7) For the meaning of “paid-for advertisement”, see section 189 (interpretation: general).”
New clause 6—Duty to verify advertisements—
“(1) A provider of a Category 2A service must operate an advertisement verification process for any relevant advertisement appearing in or via search results of the service.
(2) In this section, “relevant advertisement” means any advertisement for a service or product to be designated in regulations made by the Secretary of State.
(3) The verification process under subsection (1) must include a requirement for advertisers to demonstrate that they are authorised by a UK regulatory body.
(4) In this section, “UK regulatory body” means a UK regulator responsible for the regulation of a particular service or product to be designated in regulations made by the Secretary of State.
(5) If a person is the provider of more than one Category 2A service, the duties set out in this section apply in relation to each such service.
(6) For the meaning of “Category 2A service”, see section 81 (register of a categories of service).
(7) Regulations under this section shall be made by statutory instrument.
(8) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.”
Barbara Keeley
I begin by thanking my hon. Friend the Member for Washington and Sunderland West (Mrs Hodgson) for her work on drafting these amendments and others relating to this chapter, which I will speak to shortly. She has campaigned excellently over many years in her role as chair of the all-party parliamentary group on ticket abuse. I attended the most recent meeting of that group back in April to discuss what we need to see changed in the Bill to protect people from scams online. I am grateful to those who have supported the group and the anti-ticket touting campaign for their insights.
It is welcome that, after much flip-flopping, the Government have finally conceded to Labour’s calls and those of many campaign groups to include a broad duty to tackle fraudulent advertising on search engines through chapter 5 of part 3 of the Bill. We know that existing laws to protect consumers in the online world have failed to keep pace with the actors attempting to exploit them, and that is particularly true of scams and fraudulent advertisements.
Statistics show a steep increase in this type of crime in the online world, although those figures are likely to be a significant underestimate and do not capture the devastating emotional impact that scams have on their victims. The scale of the problem is large and it is growing.
The Financial Conduct Authority estimates that fraud costs the UK up to £190 billion a year, with 86% of that fraud committed online. We know those figures are increasing. The FCA more than doubled the number of scam warnings it issued between 2019 and 2020, while UK Finance data shows that there has been a significant rise in cases across all scam types as criminals adapt to targeting victims online. The pandemic, which led to a boom in internet shopping, created an environment ripe for exploitation. Reported incidents of scams and fraud have increased by 41% since before the pandemic, with one in 10 of us now victims of fraud.
Being scammed can cause serious psychological harm. Research by the Money and Mental Health Policy Institute suggests that three in 10 online scam victims felt depressed as a result of being scammed, while four in 10 said they felt stressed. Clearly, action to tackle the profound harms that result from fraudulent advertising is long overdue.
This Bill is an important opportunity but, as with other issues the Government are seeking to address, we need to see changes if it is to be successful. Amendments 23 and 24 are small and very simple, but would have a profound impact on the ability of the Bill to prevent online fraud from taking place and to protect UK users.
As currently drafted, the duties set out in clauses 34 and 35 for category 1 and 2A services extend only to the design, operation and use of a category 1 or 2A service in the United Kingdom. Our amendments would mean that the duties extended to the design, operation and use of a category 1 or 2A service that targets users in the United Kingdom. That change would make the Bill far more effective, because it would reduce the risk of a company based overseas being able to target UK consumers without any action being taken against them—being allowed to target the public fraudulently without fear of disruption.
That would be an important change, because paid-for advertisements function by the advertiser stating where in the world, by geographical location, they wish to target consumers. For instance, a company would be able to operate from Hong Kong and take out paid-for advertisements to target consumers just in one particular part of north London. The current wording of the Bill does not acknowledge the fact that internet services can operate from anywhere in the world and use international boundaries to circumvent UK legislation.
Other legislation has been successful in tackling scams across borders. I draw the Committee’s attention to the London Olympic Games and Paralympic Games Act 2006, which made it a crime to sell a ticket to the Olympics into the black market anywhere in the world, rather than simply in the UK where the games took place. I suggest that we should learn from the action taken to regulate the Olympics back in 2012 and implement the same approach through amendments 23 and 24.
New clause 5 was also tabled by my hon. Friend the Member for Washington and Sunderland West, who will be getting a lot of mentions this afternoon.
Barbara Keeley
New clause 5 would tackle one of the reasons people become subject to fraud online by introducing a duty for search engines to ensure that all paid-for search advertisements should be made to look distinct from non-paid-for search results. When bad actors are looking to scam consumers, they often take out paid-for advertising on search results, so that they can give consumers the false impression that their websites are official and trustworthy.
Paid search results occur when companies pay a charge to have their site appear at the top of search results. This is valuable to them because it is likely to direct consumers towards their site. The new clause would stop scam websites buying their way to the top of a search result.
Let me outline some of the consequences of not distinguishing between paid-for and not-paid-for advertisements, because they can be awful. Earlier this year, anti-abortion groups targeted women who were searching online for a suitable abortion clinic. The groups paid for the women to have misleading adverts at the top of their search that directed them towards an anti-abortion centre rather than a clinic. One woman who knew that she wanted to have an abortion went on researching where she could have the procedure. Her search for a clinic on Google led her to an anti-abortion centre that she went on to contact and visit. That was because she trusted the top search results on Google, which were paid for. The fact that it was an advertisement was indicated only by the two letters “AD” appearing in very small font underneath the search headline and description.
Another example was reported by The Times last year. Google had been taking advertising money from scam websites selling premier league football tickets, even though the matches were taking place behind closed doors during lockdown. Because these advertisements appeared at the top of search results, it is entirely understandable that people looking for football tickets were deceived into believing that they would be able to attend the games, which led to them being scammed.
There have been similar problems with passport renewals. As colleagues will be very aware, people have been desperately trying to renew their passports amid long delays because of the backlog of cases. This is a target for fraudsters, who take out paid advertisements to offer people assistance with accessing passport renewal services and then scam them.
New clause 5 would end this practice by ensuring that search engines provide clear messaging to show that the user is looking at a paid-for advertisement, by stating that clearly and through other measures, such as a separate colour scheme. A duty to distinguish paid-for advertising is present in many other areas of advertising. For example, when we watch TV, there is no confusion between what is a programme and what is an advert; the same is true of radio advertising; and when someone is reading a newspaper or magazine, the line between journalism and the advertisements that fund the paper is unmistakable.
We cannot continue to have these discrepancies and be content with the internet being a wild west. Therefore, it is clear that advertising on search engines needs to be brought into line with advertising in other areas, with a requirement on search engines to distinguish clearly between paid-for and organic results.
New clause 6 is another new clause tabled by my hon. Friend the Member for Washington and Sunderland West. It would protect consumers from bad actors trying to exploit them online by placing a duty on search engines to verify adverts before they accept them. That would mean that, before their adverts were allowed to appear in a paid-for search result, companies would have to demonstrate that they were authorised by a UK regulatory body designated by the Secretary of State.
This methodology for preventing fraud is already in process for financial crime. Google only accepts financial services advertisements from companies that are a member of the Financial Conduct Authority. This gives companies a further incentive to co-operate with regulators and it protects consumers by preventing companies that are well-known for their nefarious activities from dominating search results and then misleading consumers. By extending this best practice to all advertisements, search engines would no longer be able to promote content that is fake or fraudulent after being paid to do so.
Without amending the Bill in this way, we risk missing an opportunity to tackle the many forms of scamming that people experience online, one of which is the world of online ticketing. In my role as shadow Minister for the arts and civil society, I have worked on this issue and been informed by the expertise of my hon. Friend the Member for Washington and Sunderland West.
In the meeting of the all-party parliamentary group on ticket abuse in April, we heard about the awful consequences of secondary ticket reselling practices. Ticket reselling websites, such as Viagogo, are rife with fraud. Large-scale ticket touts dominate the resale site, and Viagogo has a well-documented history of breaching consumer protection laws. Those breaches include a number of counts of fraud for selling non-existent tickets. Nevertheless, Viagogo continues to take out paid-for advertisements with Google and is continually able to take advantage of consumers by dominating search results and commanding false trust.
If new clause 6 is passed, then secondary ticketing websites such as Viagogo would have to be members of a regulatory body responsible for secondary ticketing, such as the Society of Ticket Agents and Retailers, or STAR. Viagogo would then have to comply with STAR standards for its business model to be successful.
I have used ticket touting as an example, but the repercussions of this change would be wider than that. Websites that sell holidays and flights, such as Skyscanner, would have to be a member of the relevant regulatory group, for example the Association of British Travel Agents. People would be able to go to football matches, art galleries and music festivals without fearing that they are getting ripped off or have been issued with fake tickets.
I will describe just a few examples of the poor situation we are in at the moment, to illustrate the need for change. The most heartbreaking one is of an elderly couple who bought two tickets from a secondary ticketing website to see their favourite artist, the late Leonard Cohen, to celebrate their 70th wedding anniversary. When the day came around and they arrived at the venue, they were turned away and told they had been sold fake tickets. The disappointment they must have felt would have been very hard to bear. In another instance, a British soldier serving overseas decided to buy his daughter concert tickets because he could not be with her on her birthday. When his daughter went along to the show, she was turned away at the door and told she could not enter because the tickets had been bought through a scam site and were invalid.
Kirsty Blackman (Aberdeen North) (SNP)
I rise to agree with all the amendments in this group that have been tabled by the Opposition. I want to highlight a couple of additional groups who are particularly at risk in relation to fraudulent advertising. One of those is pensioners and people approaching pension age. Because of the pension freedoms that are in place, we have a lot of people making uninformed decisions about how best to deal with their pensions, and sometimes they are able to withdraw a significant amount of money in one go. For an awful lot of people, withdrawing that money and paying the tax on it leads to a major financial loss—never mind the next step that they may take, which is to provide the money to fraudsters.
For pensioners in particular, requiring adverts to be clearly different from other search results would make a positive difference. The other thing that we have to remember is that pensioners generally did not grow up online, and some of them struggle more to navigate the internet than some of us who are bit younger.
John Nicolson (Ochil and South Perthshire) (SNP)
I speak with some experience of this issue, because I had a constituent who was a pensioner and who was scammed of £20,000—her life savings. Does my hon. Friend realise that it is sometimes possible to pressurise the banks into returning the money? In that particular case, I got the money back for my constituent by applying a great deal of pressure on the bank, and it is worth knowing that the banks are susceptible to a bit of publicity. That is perhaps worth bearing in mind, because it is a useful power that we have as Members of Parliament.
Kirsty Blackman
I thank my hon. Friend for his public service announcement. His constituent is incredibly lucky that my hon. Friend managed to act in that way and get the money back to her, because there are so many stories of people not managing to get their money back and losing their entire life savings as a result of scams. It is the case that not all those scams take place online—people can find scams in many other places—but we have the opportunity with the Bill to take action on scams that are found on the internet.
The other group I want to mention, and for whom highlighting advertising could make a positive difference, is people with learning disabilities. People with learning disabilities who use the internet may not understand the difference between adverts and search results, as the hon. Member for Worsley and Eccles South mentioned. They are a group who I would suggest are particularly susceptible to fraudulent advertising.
We are speaking a lot about search engines, but a lot of fraudulent advertising takes place on Facebook and so on. Compared with the majority of internet users, there is generally an older population on such sites, and the ability to tackle fraudulent advertising there is incredibly useful. We know that the sites can do it, because there are rules in place now around political advertising on Facebook, for example. We know that it is possible for them to take action; it is just that they have not yet taken proper action.
I am happy to support the amendments, but I am also glad that the Minister has put these measures in the Bill, because they will make a difference to so many of our constituents.
Chris Philp
I thank the hon. Member for Aberdeen North for her latter remarks. We made an important addition to the Bill after listening to parliamentarians across the House and to the Joint Committee, which many people served on with distinction. I am delighted that we have been able to make that significant move. We have heard a lot about how fraudulent advertising can affect people terribly, particularly more vulnerable people, so that is an important addition.
Amendments 23 and 24 seek to make it clear that where the target is in the UK, people are covered. I am happy to assure the Committee that that is already covered, because the definitions at the beginning of the Bill—going back to clause 3(5)(b), on page 3—make it clear that companies are in scope, both user-to-user and search, if there is a significant number of UK users or where UK users form one of the target markets, or is the only target market. Given the reference to “target markets” in the definitions, I hope that the shadow Minister will withdraw the amendment, because the matter is already covered in the Bill.
New clause 5 raises important points about the regulation of online advertising, but that is outside the purview of what the Bill is trying to achieve. The Government are going to work through the online advertising programme to tackle these sorts of issues, which are important. The shadow Minister is right to raise them, but they will be tackled holistically by the online advertising programme, and of course there are already codes of practice that apply and are overseen by the Advertising Standards Authority. Although these matters are very important and I agree with the points that she makes, there are other places where those are best addressed.
New clause 6 is about the verification process. Given that the Bill is primary legislation, we want to have the core duty to prevent fraudulent advertising in the Bill. How that is implemented in this area, as in many others, is best left to Ofcom and its codes of practice. When Ofcom publishes the codes of practice, it might consider such a duty, but we would rather leave Ofcom, as the expert regulator, with the flexibility to implement that via the codes of practice and leave the hard-edged duty in the Bill as drafted.
Barbara Keeley
We are going to press amendments 23 and 24 to a vote because they are very important. I cited the example of earlier legislation that considered it important, in relation to selling tickets, to include the wording “anywhere in the world”. We know that ticket abuses happen with organisations in different parts of the world.
Chris Philp
The hon. Lady is perfectly entitled to press to a vote whatever amendments she sees fit, but in relation to amendments 24 and 25, the words she asks for,
“where the UK is a target market”,
are already in the Bill, in clause 3(5)(b), on page 3, which set out the definitions at the start. I will allow the hon. Lady a moment to look at where it states:
“United Kingdom users form one of the target markets for the service”.
That applies to user-to-user and to search, so it is covered already.
Barbara Keeley
The problem is that we are getting into the wording of the Bill. As with the child abuse clause that we discussed before lunch, there are limitations. Clause 3 states that a service has links with the United Kingdom if
“the service has a significant number of United Kingdom users”.
It does not matter if a person is one of 50, 100 or 1,000 people who get scammed by some organisation operating in another part of the country. The 2006 Bill dealing with the sale of Olympic tickets believed that was important, and we also believe it is important. We have to find a way of dealing with ticket touting and ticket abuse.
Turning to fraudulent advertising, I have given examples and been supported very well by the hon. Member for Aberdeen North. It is not right that vulnerable people are repeatedly taken in by search results, which is the case right now. The reason we have tabled all these amendments is that we are trying to protect vulnerable people, as with every other part of the Bill.
Chris Philp
That is of course our objective as well, but let me just return to the question of the definitions. The hon. Lady is right that clause 3(5)(a) says
“a significant number of United Kingdom users”,
but paragraph (b) just says,
“United Kingdom users form one of the target markets”.
There is no significant number qualification in paragraph (b), and to put it beyond doubt, clause 166(1) makes it clear that service providers based outside the United Kingdom are within the scope of the Bill. To reiterate the point, where the UK is a target market, there is no size qualification: the service provider is in scope, even if it is only one user.
Barbara Keeley
Does the Minister want to say anything about the other points I made about advertisements?
Chris Philp
Not beyond the points I made previously, no.
Question put, That the amendment be made.
The Chair
With this it will be convenient to discuss the following:
Amendment 45, in clause 35, page 34, line 2, leave out subsection (1) and insert—
“(1) A provider of a Category 2A service must operate the service using proportionate systems and processes designed to—
(a) prevent individuals from encountering content consisting of fraudulent advertisements by means of the service;
(b) minimise the length of time for which any such content is present;
(c) where the provider is alerted by a person to the presence of such content, or becomes aware of it in any other way, swiftly take down such content.”
This amendment brings the fraudulent advertising provisions for Category 2A services in line with those for Category 1 services.
Government amendments 91 to 94.
Clause 35 stand part.
Amendment 44, in clause 36, page 35, line 10, at end insert—
“(4A) An offence under Part 3 of the Consumer Protection from Unfair Trading Regulations 2008.”
This amendment adds further offences to those which apply for the purposes of the Bill’s fraudulent advertising provisions.
Clause 36 stand part.
Barbara Keeley
I am aware that the Minister has reconsidered the clause and tabled a Government amendment that is also in this group, with the same purpose as our amendment 45. That is welcome, as there was previously no justifiable reason why the duties on category 1 services and category 2A services were misaligned.
All three of the duties on category 1 services introduced by clause 34 are necessary to address the harm caused by fraudulent and misleading online adverts. Service providers need to take proportionate but effective action to prevent those adverts from appearing or reappearing, and when they do appear, those service providers need to act quickly by swiftly taking them down. The duties on category 2A services were much weaker, only requiring them to minimise the risk of individuals encountering content consisting of fraudulent advertisements in or via search results of the service. There was no explicit reference to prevention, even though that is vital, or any explicit requirement to act quickly to take harmful adverts down.
That difference would have created an opportunity for fraudsters to exploit by focusing on platforms with lesser protections. It could have resulted in an increase in fraud enabled by paid-for advertising on search services, which would have undermined the aims of the Bill. I am glad that the Government have recognised this and will require the same proactive, preventative response to harmful ads from regulated search engines as is required from category 1 services.
Chris Philp
As we have heard already, these clauses are very important because they protect people from online fraudulent advertisements for the first time—something that the whole House quite rightly called for. As the shadow Minister said, the Government heard Parliament’s views on Second Reading, and the fact that the duties in clause 35 were not as strongly worded as those in clause 34 was recognised. The Government heard what Members said on Second Reading and tabled Government amendments 91 to 94, which make the duties on search firms in clause 35 as strong as those on user-to-user firms in clause 34. Opposition amendment 45 would essentially do the same thing, so I hope we can adopt Government amendments 91 to 94 without needing to move amendment 45. It would do exactly the same thing—we are in happy agreement on that point.
I listened carefully to what the shadow Minister said on amendment 44. The example she gave at the end of her speech—the poor lady who was induced into sending money, which she thought was being sent to pay off creditors but was, in fact, stolen—would, of course, be covered by the Bill as drafted, because it would count as an act of fraud.
The hon. Lady also talked about some other areas that were not fraud, such as unfair practices, misleading statements or statements that were confusing, which are clearly different from fraud. The purpose of clause 35 is to tackle fraud. Those other matters are, as she says, covered by the Consumer Protection from Unfair Trading Regulations 2008, which are overseen and administered by the Competition and Markets Authority. While matters to do with unfair, misleading or confusing content are serious—I do not seek to minimise their importance—they are overseen by a different regulator and, therefore, better handled by the CMA under its existing regulations.
If we introduce this extra offence to the list in clause 36, we would end up having a bit of regulatory overlap and confusion, because there would be two regulators involved. For that reason, and because those other matters—unfair, misleading and confusing advertisements —are different to fraud, I ask that the Opposition withdraw amendment 44 and, perhaps, take it up on another occasion when the CMA’s activities are in the scope of the debate.
Barbara Keeley
No, we want to press this amendment to a vote. I have had further comment from the organisations that I quoted. They believe that we do need the amendment because it is important to stop harmful ads going up in the first place. They believe that strengthened provisions are needed for that. Guidance just puts the onus for protecting consumers on the other regulatory regimes that the Minister talked about. The view of organisations such as StepChange is that those regimes—the Advertising Standards Authority regime—are not particularly strong.
The regulatory framework for financial compulsion is fragmented. FCA-regulated firms are clearly under much stronger obligations than those that fall outside FCA regulations. I believe that it would be better to accept the amendment, which would oblige search engines and social media giants to prevent harmful and deceptive ads from appearing in the first place. The Minister really needs to take on board the fact that in this patchwork, this fragmented world of different regulatory systems, some of the existing systems are clearly failing badly, and the strong view of expert organisations is that the amendment is necessary.
Question put and agreed to.
Clause 34 accordingly ordered to stand part of the Bill.
Clause 35
Duties about fraudulent advertising: Category 2A services
Amendments made: 91, in clause 35, page 34, line 3, leave out from “to” to end of line 5 and insert—
“(a) prevent individuals from encountering content consisting of fraudulent advertisements in or via search results of the service;
(b) if any such content may be encountered in or via search results of the service, minimise the length of time that that is the case;
(c) where the provider is alerted by a person to the fact that such content may be so encountered, or becomes aware of that fact in any other way, swiftly ensure that individuals are no longer able to encounter such content in or via search results of the service.”
This amendment alters the duty imposed on providers of Category 2A services relating to content consisting of fraudulent advertisements so that it is in line with the corresponding duty imposed on providers of Category 1 services by clause 34(1).
Amendment 92, in clause 35, page 34, line 16, leave out “reference” and insert “references”.
This amendment is consequential on Amendment 91.
Amendment 93, in clause 35, page 34, line 18, leave out “is a reference” and insert “are references”.
This amendment is consequential on Amendment 91.
Amendment 94, in clause 35, page 34, line 22, leave out
“does not include a reference”
and insert “do not include references”.—(Chris Philp.)
This amendment is consequential on Amendment 91.
Clause 35, as amended, ordered to stand part of the Bill.
Clause 36
Fraud etc offences
Amendment proposed: 44, in clause 36, page 35, line 10, at end insert—
“(4A) An offence under Part 3 of the Consumer Protection from Unfair Trading Regulations 2008.”—(Barbara Keeley.)
This amendment adds further offences to those which apply for the purposes of the Bill’s fraudulent advertising provisions.
Question put, That the amendment be made.
The Chair
Amendment 96 has been tabled by Carla Lockhart, who is not on the Committee. Does anyone wish to move amendment 96? No.
Alex Davies-Jones
I beg to move amendment 65, in clause 37, page 36, line 27, at end insert—
“(ia) organisations that campaign for the removal of animal abuse content, and”.
This amendment would add organisations campaigning for the removal of animal content to the list of bodies Ofcom must consult.
The Chair
With this it will be convenient to discuss the following:
Amendment 63, in schedule 4, page 176, line 29, at end insert “and
(x) there are adequate safeguards to monitor cruelty towards humans and animals;”.
This amendment would ensure that ensuring adequate safeguards to monitor cruelty towards humans and animals is one of the online safety objectives for user-to-user services.
Amendment 64, in schedule 4, page 177, line 4, at end insert “and
(vii) the systems and process are appropriate to detect cruelty towards humans and animals;”.
This amendment would ensure that ensuring systems and processes are appropriate to detect cruelty towards humans and animals is one of the online safety objectives for search services.
Amendment 60, in clause 52, page 49, line 5, at end insert—
“(e) an offence, not within paragraph (a), (b) or (c), of which the subject is an animal.”
This amendment brings offences to which animals are subject within the definition of illegal content.
Amendment 59, in schedule 7, page 185, line 39, at end insert—
“Animal Welfare
22A An offence under any of the following provisions of the Animal Welfare Act 2006—
(a) section 4 (unnecessary suffering);
(b) section 5 (mutilation);
(c) section 7 (administration of poisons);
(d) section 8 (fighting);
(e) section 9 (duty of person responsible for animal to ensure welfare).
22B An offence under any of the following provisions of the Animal Health and Welfare (Scotland) Act 2006—
(a) section 19 (unnecessary suffering);
(b) section 20 (mutilation);
(c) section 21 (cruel operations);
(d) section 22 (administration of poisons);
(e) section 23 (fighting);
(f) section 24 (ensuring welfare of animals).
22C An offence under any of the following provisions of the Welfare of Animals Act (Northern Ireland) 2011—
(a) section 4 (unnecessary suffering);
(b) section 5 (prohibited procedures);
(c) section 7 (administration of poisons);
(d) section 8 (fighting);
(e) section 9 (ensuring welfare of animals).
22D For the purpose of paragraphs 22A, 22B or 22C of this Schedule, the above offences are deemed to have taken place regardless of whether the offending conduct took place within the United Kingdom, if the offending conduct would have constituted an offence under the provisions contained within those paragraphs.”
This amendment adds certain animal welfare offences to the list of priority offences in Schedule 7.
Amendment 66, in clause 140, page 121, line 8, at end insert—
“(d) causing harm to any human or animal.”
This amendment ensures groups are able to make complaints regarding animal abuse videos.
Amendment 67, in clause 140, page 121, line 20, at end insert
“, or a particular group that campaigns for the removal of harmful online content towards humans and animals”.
This amendment makes groups campaigning against harmful content eligible to make supercomplaints.
Alex Davies-Jones
It is, as ever, a pleasure to serve under your chairship, Ms Rees. Amendment 65 would add organisations campaigning for the removal of animal content to the list of bodies that Ofcom must consult. As we all know, Ofcom must produce codes of practice that offer guidance on how regulated services can comply with its duties. Later in the Bill, clause 45 makes clear that if a company complies with the code of practice, it will be deemed to have complied with the Bill in general. In addition, the duties for regulated services come into force at the same time as the codes of practice. That all makes what the codes say extremely important.
The absence of protections relating to animal abuse content is a real omission from the Bill. Colleagues will have seen the written evidence from Action for Primates, which neatly summarised the key issues on which Labour is hoping to see agreement from the Government. Given this omission, it is clear that the current draft of the Bill is not fit for tackling animal abuse, cruelty and violence, which is all too common online.
There are no explicit references to content that can be disturbing and distressing to those who view it—both children and adults. We now know that most animal cruelty content is produced specifically for sharing on social media, often for profit through the monetisation schemes offered by platforms such as YouTube. Examples include animals being beaten, set on fire, crushed or partially drowned; the mutilation and live burial of infant monkeys; a kitten intentionally being set on by a dog and another being stepped on and crushed to death; live and conscious octopuses being eaten; and animals being pitted against each other in staged fights.
Animals being deliberately placed into frightening or dangerous situations from which they cannot escape or are harmed before being “rescued” on camera is becoming increasingly popular on social media, too. For example, kittens and puppies are “rescued” from the clutches of a python. Such fake rescues not only cause immense suffering to animals, but are fraudulent because viewers are asked to donate towards the rescue and care of the animals. This cannot be allowed to continue.
Indeed, as part of its Cancel Out Cruelty campaign, the Royal Society for the Prevention of Cruelty to Animals conducted research, which found that in 2020 there were nearly 500 reports of animal cruelty on social media. That was more than twice the figure reported for 2019. The majority of these incidents appeared on Facebook. David Allen, head of prevention and education at the RSPCA, has spoken publicly about the issue, saying:
“Sadly, we have seen an increase in recent years in the number of incidents of animal cruelty being posted and shared on social media such as Facebook, Instagram, TikTok and Snapchat.”
John Nicolson
I totally agree with the points that the hon. Lady is making. Does she agree that the way in which the Bill is structured means that illegal acts that are not designated as “priority illegal” will likely be put at the very end of companies’ to-do list and that they will focus considerably more effort on what they will call “priority illegal” content?
Alex Davies-Jones
I completely agree with and welcome the hon. Gentleman’s contribution. It is a very valid point and one that we will explore further. It shows the necessity of this harm being classed as a priority harm in order that we protect animals, as well as people.
David Allen continued:
“We’re very concerned that the use of social media has changed the landscape of abuse with videos of animal cruelty being shared for likes and kudos with this sort of content normalising—and even making light of—animal cruelty. What’s even more worrying is the level of cruelty that can be seen in these videos, particularly as so many young people are being exposed to graphic footage of animals being beaten or killed which they otherwise would never have seen.”
Although the Bill has a clear focus on protecting children, we must remember that the prevalence of cruelty to animals online has the potential to have a hugely negative impact on children who may be inadvertently seeing that content through everyday social media channels.
Jane Stevenson (Wolverhampton North East) (Con)
The hon. Lady knows that I am a great animal lover, and I obviously have concerns about children being exposed to these images. I am just wondering how she would differentiate between abusive images and the images that are there to raise awareness of certain situations that animals are in. I have seen many distressing posts about the Yulin dogmeat festival and about beagles being used in laboratory experiments. How would she differentiate between images that are there to raise awareness of the plight of animals and the abusive ones?
Alex Davies-Jones
I thank the hon. Lady for her contribution. Like me, she is a passionate campaigner for animal welfare. It was a pleasure to serve on the Committee that considered her Glue Traps (Offences) Act 2022, which I know the whole House was pleased to pass. She raises a very important point and one that the Bill later explores with regard to other types of content, such as antisemitic content and racist content in terms of education and history and fact. The Bill deals specifically with that later, and this content would be dealt with in the same way. We are talking about where content is used as an educational tool and a raising-awareness tool, compared with just images and videos of direct abuse.
To give hon. Members a real sense of the extent of the issue, I would like to share some findings from a recent survey of the RSPCA’s frontline officers. These are pretty shocking statistics, as I am sure Members will all agree. Eighty-one per cent. of RSPCA frontline officers think that more abuse is being caught on camera. Nearly half think that more cases are appearing on social media. One in five officers said that one of the main causes of cruelty to animals is people hurting animals just to make themselves more popular on social media. Some of the recent cruelty videos posted on social media include a video of a magpie being thrown across the road on Instagram in June 2021; a woman captured kicking her dog on TikTok in March 2021; a teenager being filmed kicking a dog, which was shared on WhatsApp in May 2021; and videos posted on Instagram of cockerels being forced to fight in March 2021.
I am sure that colleagues will be aware of the most recent high-profile case, which was when disturbing footage was posted online of footballer Kurt Zouma attacking his cat. There was, quite rightly, an outpouring of public anger and demands for justice. Footage uploaded to Snapchat on 6 February showed Zouma kicking his Bengal cat across a kitchen floor in front of his seven-year-old son. Zouma also threw a pair of shoes at his pet cat and slapped its head. In another video, he was heard saying:
“I swear I’ll kill it.”
In sentencing him following his guilty plea to two offences under the Animal Welfare Act 2006, district judge Susan Holdham described the incident as “disgraceful and reprehensible”. She added:
“You must be aware that others look up to you and many young people aspire to emulate you.”
What makes that case even more sad is the way in which the video was filmed and shared, making light of such cruelty. I am pleased that the case has now resulted in tougher penalties for filming animal abuse and posting it on social media, thanks to new guidelines from the Sentencing Council. The prosecutor in the Zouma case, Hazel Stevens, told the court:
“Since this footage was put in the public domain there has been a spate of people hitting cats and posting it on various social media sites.”
There have been many other such instances. Just a few months ago, the most abhorrent trend was occurring on TikTok: people were abusing cats, dogs and other animals to music and encouraging others to do the same. Police officers discovered a shocking 182 videos with graphic animal cruelty on mobile phones seized during an investigation. This sickening phenomenon is on the rise on social media platforms, provoking a glamorisation of the behaviour. The videos uncovered during the investigation showed dogs prompted to attack other animals such as cats, or used to hunt badgers, deer, rabbits and birds. Lancashire police began the investigation after someone witnessed two teenagers encouraging a dog to attack a cat on an estate in Burnley in March of last year. The cat, a pet named Gatsby, was rushed to the vet by its owners once they discovered what was going on, but unfortunately it was too late and Gatsby’s injuries were fatal. The photos and videos found on the boys’ phones led the police to discover more teenagers in the area who were involved in such cruel activities. The views and interactions that the graphic footage was attracting made it even more visible, as the platform was increasing traffic and boosting content when it received attention.
It should not have taken such a high-profile case of a professional footballer with a viral video to get this action taken. There are countless similar instances occurring day in, day out, and yet the platforms and authorities are not taking the necessary action to protect animals and people from harm, or to protect the young people who seek to emulate this behaviour.
I pay tribute to the hard work of campaigning groups such as the RSPCA, Action for Primates, Asia for Animals Coalition and many more, because they are the ones who have fought to keep animal rights at the forefront. The amendment seeks to ensure that such groups are given a voice at the table when Ofcom consults on its all-important codes of practice. That would be a small step towards reducing animal abuse content online, and I hope the Minister can see the merits in joining the cause.
I turn to amendment 60, which would bring offences to which animals are subject within the definition of illegal content, a point raised by the hon. Member for Ochil and South Perthshire. The Minister will recall the Animal Welfare (Sentencing) Act 2021, which received Royal Assent last year. Labour was pleased to see the Government finally taking action against those who commit animal cruelty offences offline. The maximum prison sentence for animal cruelty was increased from six months to five years, and the Government billed that move as them taking a firmer approach to cases such as dog fighting, abuse of puppies and kittens, illegally cropping a dog’s ears and gross neglect of farm animals. Why, then, have the Government failed to include offences against animals within the scope of illegal content online? We want parity between the online and offline space, and that seems like a sharp omission from the Bill.
Placing obligations on service providers to remove animal cruelty content should fall within both the spirit and the scope of the Bill. We all know that the scope of the Bill is to place duties on service providers to remove illegal and harmful content, placing particular emphasis on the exposure of children. Animal cruelty content is a depiction of illegality and also causes significant harm to children and adults.
If my inbox is anything to go by, all of us here today know what so many of our constituents up and down the country feel about animal abuse. It is one of the most popular topics that constituents contact me about. Today, the Minister has a choice to make about his Government's commitment to preventing animal cruelty and keeping us all safe online. I hope he will see the merit in acknowledging the seriousness of animal abuse online.
Amendment 66 would ensure that groups were able to make complaints about animal abuse videos. Labour welcomes clause 140, as the ability to make super-complaints is a vital part of our democracy. However, as my hon. Friend the Member for Worsley and Eccles South and other Members have mentioned, the current definition of an “eligible entity” is far too loose. I have set out the reasons as to why the Government must go further to limit and prevent animal abuse content online. Amendment 66 would ensure that dangerous animal abuse content is a reasonable cause for a super-complaint to be pursued.
Chris Philp
The shadow Minister raises important issues to do with animal cruelty. The whole House and our constituents feel extremely strongly about this issue, as we know. She set out some very powerful examples of how this terrible form of abuse takes place.
To some extent, the offences are in the Bill’s scope already. It covers, for example, extreme pornography. Given that the content described by the hon. Lady would inflict psychological harm to children, it is, to that extent, in scope.
The hon. Lady mentioned the Government’s wider activities to prevent animal cruelty. That work goes back a long time and includes the last Labour Government’s Animal Welfare Act 2006. She mentioned the more recent update to the criminal sentencing laws that increased by a factor of 10 the maximum sentence for cruelty to animals. It used to be six months and has now been increased to up to five years in prison.
In addition, just last year the Department for Environment, Food and Rural Affairs announced an action plan for animal welfare, which outlines a whole suite of activities that the Government are taking to protect animals in a number of different areas—sentience, international trade, farming, pets and wild animals. That action plan will be delivered through a broad programme of legislative and non-legislative work.
Alex Davies-Jones
I thank the Minister for agreeing to look at this issue further. However, we do see it as being within the scope of the Bill, and we have the opportunity to do something about it now, so we will be pressing these amendments to a vote. If you will allow me, Ms Rees, I would also like to pay tribute to the former Member of Parliament for Redcar, Anna Turley, who campaigned tirelessly on these issues when she was a Member of the House. We would like these amendments to be part of the Bill.
Question put, That the amendment be made.
The Chair
With this it will be convenient to discuss the following:
Clause 38 stand part.
That schedule 4 be the Fourth schedule to the Bill.
New clause 20—Use of proactive technology in private messaging: report—
“(1) OFCOM must produce a report—
(a) examining the case for the use of proactive technology in private messaging where the aim is to identify CSEA content; and
(b) making recommendations to whether or not proactive technology should be used in such cases.
(2) The report must be produced in consultation with organisations that have expertise and experience in tackling CSEA.
(3) The report must be published and laid before both Houses of Parliament within six months of this Act being passed.”
Alex Davies-Jones
On clause 37, it is welcome that Ofcom will have to prepare and issue a code of practice for service providers with duties relating to illegal content in the form of terrorism or child sexual exploitation and abuse content. The introduction of compliance measures relating to fraudulent advertising is also very welcome. We do, however, have some important areas to amend, including the role of different expert groups in assisting Ofcom during its consultation process, which I have already outlined in relation to animal cruelty.
On clause 38, Labour supports the notion that Ofcom must have specific principles to adhere to when preparing the codes of practice, and of course, the Secretary of State must have oversight of those. However, as I will touch on as we proceed, Labour feels that far too much power is given to the Secretary of State of the day in establishing those codes.
Labour believes that that schedule 4 is overwhelmingly loose in its language, and we have concerns about the ability of Ofcom—try as it might—to ensure that its codes of practice are both meaningful to service providers and in compliance with the Bill’s legislative requirements. Let me highlight the schedule’s broadness by quoting from it. Paragraph 4 states:
“The online safety objectives for regulated user-to-user services are as follows”.
I will move straight to paragraph 4(a)(iv), which says
“there are adequate systems and processes to support United Kingdom users”.
Forgive me if I am missing something here, but surely an assessment of adequacy is too subjective for these important codes of practice. Moreover, the Bill seems to have failed to consider the wide-ranging differences that exist among so-called United Kingdom users. Once again, there is no reference to future-proofing against emerging technologies. I hope that the Minister will therefore elaborate on how he sees the codes of practice and their principles, objectives and content as fit for purpose. More broadly, it is remarkable that schedule 4 is both too broad in its definitions and too limiting in some areas—we might call it a Goldilocks schedule.
I turn to new clause 20. As we have discussed, a significant majority of online child abuse takes place in private messages. Research from the NSPCC shows that 12 million of the 18.4 million child sexual abuse reports made by Facebook in 2019 related to content shared on private channels. Recent data from the Office for National Statistics shows that private messaging plays a central role in contact between children and people whom they have not met offline before. When children are contacted by someone they do not know, in nearly three quarters of cases that takes place by private message.
Schedule 4 introduces new restrictions on Ofcom’s ability to require a company to use proactive technology to identify or disrupt abuse in private messaging. That will likely restrict Ofcom’s ability to include in codes of practice widely used industry-standard tools such as PhotoDNA and CSAI Match, which detect known child abuse images, and artificial intelligence classifiers to detect self-generated images and grooming behaviour. That raises significant questions about whether the regulator can realistically produce codes of practice that respond to the nature and extent of the child abuse threat.
As it stands, the Bill will leave Ofcom unable to require companies to proactively use technology that can detect child abuse. Instead, Ofcom will be wholly reliant on the use of CSEA warning notices under clause 103, which will enable it to require the use of proactive technologies only where there is evidence that child abuse is already prevalent—in other words, where significant online harm has already occurred. That will necessitate the use of a laborious and resource-intensive process, with Ofcom having to build the evidence to issue CSEA warning notices company by company.
Those restrictions will mean that the Bill will be far less demanding than comparable international legislation in respect of the requirement on companies to proactively detect and remove online child abuse. So much for the Bill being world leading. For example, the EU child abuse legislative proposal published in May sets out clear and unambiguous requirements on companies to proactively scan for child abuse images and grooming behaviour on private messages.
If the regulator is unable to tackle online grooming sufficiently proactively, the impact will be disproportionately felt by girls. NSPCC data shows that an overwhelming majority of criminal offences target girls, with those aged 12 to 15 the most likely to be victims of online grooming. Girls were victims in 83% of offences where data was recorded. Labour recognises that once again there are difficulties between our fundamental right to privacy and the Bill’s intentions in keeping children safe. This probing new clause is designed to give the Government an opportunity to report on the effectiveness of their proposed approach.
Ultimately, the levels of grooming taking place on private messaging platforms are incredibly serious. I have two important testimonies that are worth placing on the record, both of which have been made anonymous to protect the victims but share the same sentiment. The first is from a girl aged 15. She said:
“I’m in a serious situation that I want to get out of. I’ve been chatting with this guy online who’s like twice my age. This all started on Instagram but lately all our chats have been on WhatsApp. He seemed really nice to begin with, but then he started making me do these things to prove my trust to him, like doing video chats with my chest exposed.”
The second is from a boy aged 17. He said:
“I’ve got a fitness page on Instagram to document my progress but I get a lot of direct messages from weird people. One guy said he’d pay me a lot of money to do a private show for him. He now messages me almost every day asking for more explicit videos and I’m scared that if I don’t do what he says, then he will leak the footage and my life would be ruined”.
Those testimonies go to show how fundamentally important it is for an early assessment to be made of the effectiveness of the Government’s approach following the Bill gaining Royal Assent.
We all have concerns about the use of proactive technology in private messaging and its potential impact on personal privacy. End-to-end encryption offers both risks and benefits to the online environment, but the main concern is based on risk profiles. End-to-end encryption is particularly problematic on social networks because it is embedded in the broader functionality of the service, so all text, DMs, images and live chats could be encrypted. Consequently, its impact on detecting child abuse becomes even greater. There is an even greater risk with Meta threatening to bring in end-to-end encryption for all its services. If platforms cannot demonstrate that they can mitigate those risks to ensure a satisfactory risk profile, they should not be able to proceed with end-to-end encryption until satisfactory measures and mitigations are in place.
Tech companies have made significant efforts to frame this issue in the false binary that any legislation that impacts private messaging will damage end-to-end encryption and will mean that encryption will not work or is broken. That argument is completely false. A variety of novel technologies are emerging that could allow for continued CSAM scanning in encrypted environments while retaining the privacy benefits afforded by end-to-end encryption.
Apple, for example, has developed its NeuralHash technology, which allows for on-device scans for CSAM before a message is sent and encrypted. That client-side implementation—rather than service-side encryption—means that Apple does not learn anything about images that do not match the known CSAM database. Apple’s servers flag accounts that exceed a threshold number of images that match a known database of CSAM image hashes, so that Apple can provide relevant information to the National Centre for Missing and Exploited Children. That process is secure and expressly designed to preserve user privacy.
Homomorphic encryption technology can perform image hashing on encrypted data without the need to decrypt the data. No identifying information can be extracted and no details about the encrypted image are revealed, but calculations can be performed on the encrypted data. Experts in hash scanning—including Professor Hany Farid of the University of California, Berkeley, who developed PhotoDNA—insist that scanning in end-to-end encrypted environments without damaging privacy will be possible if companies commit to providing the engineering resources to work on it.
To move beyond the argument that requiring proactive scanning for CSAM means breaking or damaging end-to-end encryption, amendments to the Bill could provide a powerful incentive for companies to invest in technology and engineering resources that will allow them to continue scanning while pressing ahead with end-to-end encryption, so that privacy is preserved but appropriate resources for and responses to online child sexual abuse can continue. It is highly unlikely that some companies will do that unless they have the explicit incentive to do so. Regulation can provide such an incentive, and I urge the Minister to make it possible.
Mrs Maria Miller (Basingstoke) (Con)
It is a pleasure to follow the shadow Minister, who made some important points. I will focus on clause 37 stand part. I pay tribute to the Minister for his incredible work on the Bill, with which he clearly wants to stop harm occurring in the first place. We had a great debate on the matter of victim support. The Bill requires Ofcom to produce a number of codes of practice to help to achieve that important aim.
Clause 37 is clear: it requires codes of practice on illegal content and fraudulent advertising, as well as compliance with “the relevant duties”, and it is on that point that I hope the Minister can help me. Those codes will help Ofcom to take action when platforms do things that they should not, and will, I hope, provide a way for platforms to comply in the first place rather than falling foul of the rules.
How will the codes help platforms that are harbouring material or configuring their services in a way that might be explicitly or inadvertently promoting violence against women and girls? The Minister knows that women are disproportionately the targets of online abuse on social media or other platforms. The impact, which worries me as much as I am sure it worries him, is that women and girls are told to remove themselves from social media as a way to protect themselves against extremely abusive or harassing material. My concern is that the lack of a specific code to tackle those important issues might inadvertently mean that Ofcom and the platforms overlook them.
Would a violence against women and girls code of practice help to ensure that social media platforms were monitored by Ofcom for their work to prevent tech-facilitated violence against women and girls? A number of organisations think that it would, as does the Domestic Abuse Commissioner herself. Those organisations have drafted a violence against women and girls code of practice, which has been developed by an eminent group of specialists—the End Violence Against Women Coalition, Glitch, Carnegie UK Trust, the NSPCC, 5Rights, and Professors Clare McGlynn and Lorna Woods, both of whom gave evidence to us. They believe it should be mandatory for Ofcom to adopt a violence against women and girls code to ensure that this issue is taken seriously and that action is taken to prevent the risks in the first place. Clause 37 talks about codes, but it is not specific on that point, so can the Minister help us? Like the rest of the Committee, he wants to prevent women from experiencing these appalling acts online, and a code of practice could help us deal with that better.
Kirsty Blackman
I absolutely agree with the points that have been made about the violence against women code of conduct. It is vital, and it would be a really important addition to the Bill. I associate myself with the shadow Minister’s comments, and am happy to stand alongside her.
I want to make a few comments about new clause 20 and some of the issues it raises. The new clause is incredibly important, and we need to take seriously the concerns that have been raised with us by the groups that advocate on behalf of children. They would not raise those concerns if they did not think the Bill was deficient in this area. They do not have spare people and cannot spend lots of time doing unnecessary things, so if they are raising concerns, those are very important things that will make a big difference.
I want to go a little further than what the new clause says and ask the Minister about future-proofing the Bill and ensuring that technologies can be used as they evolve. I am pretty sure that everybody agrees that there should be no space where it is safe to share child sexual exploitation and abuse, whether physical space or online space, private messaging or a more open forum. None of those places should be safe or legal. None should enable that to happen.
My particular thought about future-proofing is about the development of technologies that are able to recognise self-generated pictures, videos, livestreams and so on that have not already been categorised, do not have a hash number and are not easy for the current technologies to find. There are lots of people out there working hard to stamp out these images and videos online, and I have faith that they are developing new technologies that are able to recognise images, videos, messages and oral communications that cannot currently be recognised.
I agree wholeheartedly with the new clause: it is important that a report be produced within six months of the Bill being passed. It would be great if the Minister would commit to thinking about whether Ofcom will be able to require companies to implement new technologies that are developed, as well as the technologies that are currently available. I am not just talking about child sexual abuse images, material or videos; I am also talking about private messaging where grooming is happening. That is a separate thing that needs to be scanned for, but it is incredibly important.
Some of the stories relayed by the shadow Minister relate to conversations and grooming that happened in advance of the self-generated material being created. If there had been a proactive action to scan for grooming behaviour by those companies whose platforms the direct messaging was taking place on, then those young people would potentially have been in a safer place, because it could have been stopped in advance of that self-generated material being created. Surely, that should be the aim. It is good that we can tackle this after the event—it is good that we have something—but tackling it before it happens would be incredibly important.
Jane Stevenson
Online sexual exploitation is a horrific crime, and we all want to see it ended for good. I have concerns about whether new clause 20 is saying we should open up all messaging—where is the consideration of privacy when the scanning is taking place? Forgive me, I do not know much about the technology that is available to scan for that content. I do have concerns that responsible users will have an infringement of privacy, even when doing nothing of concern.
Kirsty Blackman
I do not know whether everybody draws the same distinction as me. For me the distinction is that, because it will be happening with proactive technology—technological means will be scanning those messages rather than humans—nobody will see the messages. Software will scan messages, and should there be anything that is illegal—should there be child sexual abuse material—that is what will be flagged and further action taken.
Alex Davies-Jones
I am not sure whether the hon. Member for Wolverhampton North East heard during my contribution, but this technology does exist, so it is possible. It is a false argument made by those who believe that impacting end-to-end encryption will limit people’s privacy. The technology does exist, and I named some that is able to scan without preventing the encryption of the data. It simply scans for those images and transfers them over existing databases. It would have no impact on anybody’s right to privacy.
Kirsty Blackman
I thank the shadow Minister for her assistance with that intervention, which was incredibly helpful. I do not have concerns that anybody will be able to access that data. The only data that will be accessible is when the proactive technology identifies something that is illegal, so nobody can see any of the messages except for the artificial intelligence. When the AI recognises that something is abuse material, at that point the Bill specifies that it will go to the National Crime Agency if it is in relation to child abuse images.
Jane Stevenson
My concern is that, at the point at which the data is sent to the National Crime Agency, it will be visible to human decision making. I am wondering whether that will stop parents sharing pictures of their babies in the bath? There are instances where people could get caught up in a very innocent situation that is deemed to be something more sinister by AI. However, I will take the advice of the hon. Member for Pontypridd advice and look into the technology.
Kirsty Blackman
In terms of the secondary processes that kick in after the AI has scanned the data, I assume it will be up to Ofcom and the provider to discuss what happens then. Once the AI identifies something, does it automatically get sent to the National Crime Agency, or does it go through a process of checking to ensure the AI has correctly identified something? I agree with what the Minister has reiterated on a number of occasions; if it is child sexual abuse material then I have no problem with somebody’s privacy being invaded in order for that to be taken to the relevant authorities and acted on.
I want to make one last point. The wording of new clause 20 is about a report on those proactive technologies. It is about requiring Ofcom to come up with and justify the use of those proactive technologies. To give the hon. Member for Wolverhampton North East some reassurance, it is not saying, “This will definitely happen.” I assume that Ofcom will be able to make the case—I am certain it will be able to—but it will have to justify it in order to be able to require those companies to undertake that use.
My key point is about the future-proofing of this, ensuring that it is not just a one-off, and that, if Ofcom makes a designation about the use of proactive technologies, it is able to make a re-designation or future designation, should new proactive technologies come through, so that we can require those new proactive technologies to be used to identify things that we cannot identify with the current proactive technologies.
Kim Leadbeater (Batley and Spen) (Lab)
I want to associate myself with the comments of the right hon. Member for Basingstoke and the hon. Member for Aberdeen North, and to explore the intersection between the work we are doing to protect children and the violence against women and girls strategy. There is one group, girls, who apply to both. We know that they are sadly one of the most vulnerable groups for online harm and abuse, and we must do everything we can to protect them. Having a belt and braces approach, with a code of conduct requirement for the violence against women and girls strategy, plus implementing new clause 20 on this technology that can protect girls in particular, although not exclusively, is a positive thing. Surely, the more thorough we are in the preventive approach, the better, rather than taking action after it is too late?
Kirsty Blackman
I agree 100%. The case that the shadow Minister, the hon. Member for Pontypridd, made and the stories she highlighted about the shame that is felt show that we are not just talking about a one-off impact on people’s lives, but potentially years of going through those awful situations and then many years to recover, if they ever do, from the situations they have been through.
I do not think there is too much that we could do, too many codes of practice we could require or too many compliances we should have in place. I also agree that girls are the most vulnerable group when considering this issue, and we need to ensure that this Bill is as fit for purpose as it can be and meets the Government’s aim of trying to make the internet a safe place for children and young people. Because of the additional risks that there are for girls in particular, we need additional protections in place for girls. That is why a number of us in this room are making that case.
Chris Philp
This has been an important debate. I think there is unanimity on the objectives we are seeking to achieve, particularly protecting children from the risk of child sexual exploitation and abuse. As we have discussed two or three times already, we cannot allow end-to-end encryption to frustrate or prevent the protection of children.
I will talk about two or three of the issues that have arisen in the course of the debate. The first is new clause 20, a proposal requiring Ofcom to put together a report. I do not think that is strictly necessary, because the Bill already imposes a requirement to identify, assess and mitigate CSEA. There is no optionality here and no need to think about it; there is already a demand to prevent CSEA content, and Ofcom has to produce codes of practice explaining how it will do that. I think what is requested in new clause 20 is required already.
The hon. Member for Pontypridd mentioned the concern that Ofcom had to first of all prove that the CSEA risk existed. I think that might be a hangover from the previous draft of the Bill, where there was a requirement for the evidence to be “persistent and prevalent”—I think that might have been the phrase—which implied that Ofcom had to first prove that it existed before it could take action against it. So, for exactly the reason she mentioned, that it imposed a requirement to prove CSEA is there, we have changed the wording in the new version. Clause 103(1), at the top of page 87, instead of “persistent and prevalent”, now states “necessary and proportionate”. Therefore, if Ofcom simply considers something necessary, without needing to prove that it is persistent and prevalent—just if it thinks it is necessary—it can take the actions set out in that clause. For the reason that she mentioned, the change has been made already.
Dame Maria Miller
I think my hon. Friend’s list goes on to page 37, which means there would be a number of different relevant duties that would presumably then be subject to the ability to issue codes of practice. However, the point I was making in my earlier contribution is that this list does not include the issue of violence against women and girls. In looking at this exhaustive list that my hon. Friend has included in the Bill, I must ask whether he might inadvertently be excluding the opportunity for Ofcom to produce a code of practice on the issue of violence against women and girls. Having heard his earlier comments, I felt that he was slightly sympathetic to that idea.
Chris Philp
Clearly, and as Members have pointed out, women and girls suffer disproportionately from abuse online; unfortunately, tragically and disgracefully, they are disproportionately victims of such abuse. The duties in the Bill obviously apply to everybody—men and women—but women will obviously disproportionately benefit, because they are disproportionately victims.
Obviously, where there are things that are particular to women, such as particular kinds of abuse that women suffer that men do not, or particular kinds of abuse that girls suffer that boys do not, then we would expect the codes of practice to address those kinds of abuse, because the Bill states that they must keep children safe, in clause 37(10)(b), and adults safe, in clause 37(10)(c). Obviously, women are adults and we would expect those particular issues that my right hon. Friend mentioned to get picked up by those measures.
Dame Maria Miller
My hon. Friend is giving me a chink of light there, in that subsection (10)(c) could actively mean that a code of practice that specifically dealt with violence against women and girls would be admissible as a result of that particular point. I had not really thought of it in that way—am I thinking about it correctly?
Chris Philp
My right hon. Friend makes an interesting point. To avoid answering a complicated question off the cuff, perhaps I should write to her. However, I certainly see no prohibition in these words in the clause that would prevent Ofcom from writing a particular code of practice. I would interpret these words in that way, but I should probably come back to her in writing, just in case I am making a mistake.
As I say, I interpret those words as giving Ofcom the latitude, if it chose to do so, to have codes of practice that were specific. I would not see this clause as prescriptive, in the sense that if Ofcom wanted to produce a number of codes of practice under the heading of “adults”, it could do so. In fact, if we track back to clause 37(3), that says:
“OFCOM must prepare and issue one or more codes of practice”.
That would appear to admit the possibility that multiple codes of practice could be produced under each of the sub-headings, including in this case for adults and in the previous case for children. [Interruption.] I have also received some indication from officials that I was right in my assessment, so hopefully that is the confirmation that my right hon. Friend was looking for.
Question put and agreed to.
Clause 37 accordingly ordered to stand part of the Bill.
Clause 38 ordered to stand part of the Bill.
Schedule 4
Codes of practice under section 37: principles, objectives, content
Amendment proposed: 63, in schedule 4, page 176, line 29, at end insert “and
(x) there are adequate safeguards to monitor cruelty towards humans and animals;”.—(Alex Davies-Jones.)
This amendment would ensure that ensuring adequate safeguards to monitor cruelty towards humans and animals is one of the online safety objectives for user-to-user services.
Question put, That the amendment be made.
The Chair
Before we begin the next debate, does anyone wish to speak to Carla Lockhart’s amendment 97? If so, it will be debated as part of this group; otherwise, it will not be selected. The amendment is not selected.
Alex Davies-Jones
I beg to move amendment 48, in clause 39, page 37, line 17, at beginning insert—
“(A1) OFCOM must prepare the draft codes of practice required under section 37 within the period of six months beginning with the day on which this Act is passed.”
This amendment requires Ofcom to prepare draft codes of practice within six months of the passing of the Act.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clauses 42 to 47 stand part.
Alex Davies-Jones
This is a mammoth part of the Bill, and I rise to speak to clause 39. Under the clause, Ofcom will submit a draft code of practice to the Secretary of State and, provided that the Secretary of State does not intend to issue a direction to Ofcom under clause 40, the Secretary of State would lay the draft code before Parliament. Labour’s main concern about the procedure for issuing codes of practice is that, without a deadline, they may not come into force for quite some time, and the online space needs addressing now. We have already waited far too long for the Government to bring forward the Bill. Parliamentary oversight is also fundamentally important, and the codes will have huge implications for the steps that service providers take, so it is vital that they are given due diligence at the earliest opportunity.
Amendment 48 would require Ofcom to prepare draft codes of practice within six months of the passing of the Act. This simple amendment would require Ofcom to bring forward these important codes of practice within an established time period—six months—after the Bill receives Royal Assent. Labour recognises the challenges ahead for Ofcom in both capacity and funding.
On this note, I must raise with the Minister something that I have raised previously. I find it most curious that his Department recently sought to hire an online safety regulator funding policy adviser. The job advert listed some of the key responsibilities:
“The post holder will support ministers during passage of the Online Safety Bill; secure the necessary funding for Ofcom and DCMS in order to set up the Online Safety regulator; and help implement and deliver a funding regime which is first of its kind in the UK.”
That raises worrying questions about how prepared Ofcom is for the huge task ahead. That being said, the Government have drafted the Bill in a way that brings codes of practice to its heart, so they cannot and should not be susceptible to delay.
Chris Philp
The hon. Lady is very kind in giving way—I was twitching to stand up. On the preparedness of Ofcom and its resources, Ofcom was given about £88 million in last year’s spending review to cover this and the next financial year—2022-23 and 2023-24—so that it could get ready. Thereafter, Ofcom will fund itself by raising fees, and I believe that the policy adviser will most likely advise on supporting the work on future fees. That does not imply that there will be any delay, because the funding for this year and next year has already been provided by the Government.
Alex Davies-Jones
I appreciate that intervention, but the Minister must be aware that if Ofcom has to fundraise itself, that raises questions about its future capability as a regulator and its funding and resource requirements. What will happen if it does not raise those funds?
Chris Philp
The hon. Lady’s use of the word “fundraise” implies that Ofcom will be going around with a collection tin on a voluntary basis.
Chris Philp
I will find the relevant clause in a moment. The Bill gives Ofcom the legal power to make the regulated companies pay fees to finance Ofcom’s regulatory work. It is not voluntary; it is compulsory.
Alex Davies-Jones
I am grateful to the Minister for that clarification. Perhaps he should make that more obvious in the job requirements and responsibilities.
Chris Philp
The fees requirements are in clauses 70 to 76, in particular clause 71, “Duty to pay fees”. The regulated companies have to pay the fees to Ofcom. It is not optional.
Alex Davies-Jones
I am grateful to the Minister for that clarification.
The Government have drafted the Bill in a way that puts codes of practice at its heart, so they cannot and should not be susceptible to delay. We have heard from platforms and services that stress that the ambiguity of the requirements is causing concern. At least with a deadline for draft codes of practice, those that want to do the right thing will be able to get on with it in a timely manner.
The Age Verification Providers Association provided us with evidence in support of amendment 48 in advance of today’s sitting. The association agrees that early publication of the codes will set the pace for implementation, encouraging both the Secretary of State and Parliament to approve the codes swiftly. A case study it shared highlights delays in the system, which we fear will be replicated within the online space, too. Let me indulge Members with details of exactly how slow Ofcom’s recent record has been on delivering similar guidance required under the audio-visual media services directive.
The directive became UK law on 30 September 2020 and came into force on 1 November 2020. By 24 June 2021, Ofcom had issued a note as to which video sharing platforms were in scope. It took almost a year until, on 6 October 2021, Ofcom issued formal guidance on the measures.
In December 2021, Ofcom wrote to the verification service providers and
“signalled the beginning of a new phase of supervisory engagement”.
However, in March 2022 it announced that
“the information we collect will inform our Autumn 2022 VSP report, which intends to increase the public’s awareness of the measures platforms have in place to protect users from harm.”
There is still no indication that Ofcom intends to take enforcement action against the many VSPs that remain non-compliant with the directive. It is simply not good enough. I urge the Minister to carefully consider the aims of amendment 48 and to support it.
Labour supports the principles of clause 42. Ofcom must not drag out the process of publishing or amending the codes of practice. Labour also supports a level of transparency around the withdrawal of codes of practice, should that arise.
Labour also supports clause 43 and the principles of ensuring that Ofcom has a requirement to review its codes of practice. We do, however, have concerns over the Secretary of State’s powers in subsection (6). It is absolutely right that the Secretary of State of the day has the ability to make representations to Ofcom in order to prevent the disclosure of certain matters in the interests of national security, public safety or relations with the Government of a country outside the UK. However, I am keen to hear the Minister’s assurances about how well the Bill is drafted to prevent those powers from being used, shall we say, inappropriately. I hope he can address those concerns.
On clause 44, Ofcom should of course be able to propose minor amendments to its codes of practice. Labour does, however, have concerns about the assessment that Ofcom will have to make to ensure that the minor nature of changes will not require amendments to be laid before Parliament, as in subsection (1). As I have said previously, scrutiny must be at the heart of the Bill, so I am interested to hear from the Minister how exactly he will ensure that Ofcom is making appropriate decisions about what sorts of changes are allowed to circumvent parliamentary scrutiny. We cannot and must not get to a place where the Secretary of State, in agreeing to proposed amendments, actively prevents scrutiny from taking place. I am keen to hear assurances on that point from the Minister.
On clause 45, as I mentioned previously on amendment 65 to clause 37, as it stands, service providers would be treated as complying with their duties if they had followed the recommended measures set out in the relevant codes of practice, as set out in subsection (1). However, providers could take alternative measures to comply, as outlined in subsection (5). Labour supports the clause in principle, but we are concerned that the definition of alternative measures is too broad. I would be grateful if the Minister could elaborate on his assessment of the instances in which a service provider may seek to comply via alternative measures. Surely the codes of practice should be, for want of a better phrase, best practice. None of us want to get into a position where service providers are circumnavigating their duties by taking the alternative measures route.
Again, Labour supports clause 46 in principle, but we feel that the provisions in subsection (1) could go further. We know that, historically, service providers have not always been transparent and forthcoming when compelled to be so by the courts. While we understand the reasoning behind subsection (3), we have broader concerns that service providers could, in theory, lean on their codes of practice as highlighting their best practice. I would be grateful if the Minister could address our concerns.
We support clause 47, which establishes that the duties in respect of which Ofcom must issue a code of practice under clause 37 will apply only once the first code of practice for that duty has come into force. However, we are concerned that this could mean that different duties will apply at different times, depending on when the relevant code for a particular duty comes into force. Will the Minister explain his assessment of how that will work in practice? We have concerns that drip feeding this information to service providers will cause further delay and confusion. In addition, will the Minister confirm how Ofcom will prioritise its codes of practice?
Lastly, we know that violence against women and girls has not a single mention in the Bill, which is an alarming and stark omission. Women and girls are disproportionately likely to be affected by online abuse and harassment. The Minister knows this—we all know this—and a number of us have spoken up on the issue on quite a few occasions. He also knows that online violence against women and girls is defined as including, but not limited to, intimate image abuse, online harassment, the sending of unsolicited explicit images, coercive sexting and the creation and sharing of deepfake pornography.
The Minister will also know that Carnegie UK is working with the End Violence Against Women coalition to draw up what a code of practice to tackle violence against women and girls could look like. Why has that been left out of the redraft of the Bill? What consideration has the Minister given to including a code of this nature in the Bill? If the Minister is truly committed to tackling violence against women and girls, why will he not put that on the face of the Bill?
Kirsty Blackman
I have a quick question about timelines because I am slightly confused about the order in which everything will happen. It is unlikely that the Bill will have been through the full parliamentary process before the summer, yet Ofcom intends to publish information and guidance by the summer, even though some things, such as the codes of practice, will not come in until after the Bill has received Royal Assent. Will the Minister give a commitment that, whether or not the Bill has gone through the whole parliamentary process, Ofcom will be able to publish before the summer?
Will Ofcom be encouraged to publish everything, whether that is guidance, information on its website or the codes of practice, at the earliest point at which they are ready? That will mean that anyone who has to apply those codes of practice or those regulations—people who will have to work within those codes, for example, or charities or other organisations that might be able to make super-complaints—will have as much information as possible, as early as possible, and will be able to prepare to fully implement their work at the earliest possible time. They will need that information in order to be able to gear up to do that.
Dame Maria Miller
I have three short questions for the Minister about clause 40 and the Secretary of State’s powers of direction. Am in order to cover that?
Chris Philp
I will do my best to make sure that we come to it very quickly indeed, by being concise in my replies on this group of amendments.
On amendment 48, which seeks to get Ofcom to produce its codes of practice within six months, obviously we are unanimous in wanting that to be done as quickly as possible. However, Ofcom has to go through a number of steps in order to produce those codes of practice. For example, first we have to designate in secondary legislation the priority categories of content that is harmful to children and content that is harmful to adults, and then Ofcom has to go through a consultation exercise before it publishes the codes. It has in the past indicated that it expects that to be a 12-month, rather than a six-month, process. I am concerned that a hard, six-month deadline may be either impossible to meet or make Ofcom rush and do it in a bad way. I accept the need to get this done quickly, for all the obvious reasons, but we also want to make sure that it is done right. For those reasons, a hard, six-month deadline would not help us very much.
Alex Davies-Jones
Why does the Minister believe that six months is out of scope? Does he think that Ofcom is not adequately resourced to meet that deadline and make it happen as soon as possible?
Chris Philp
There are a number of steps to go through. Regardless of how well resourced Ofcom is and how fast it works, first, we have to designate the priority categories by secondary legislation, and there is a lead time for that. Secondly, Ofcom has to consult. Best practice suggests that consultations need to last for a certain period, because the consultation needs to be written, then it needs to open, and then the responses need to be analysed. Then, Ofcom obviously has to write the codes of practice. It might be counterproductive to set a deadline that tight.
There are quite a few different codes of practice to publish, and the hon. Lady asked about that. The ones listed in clause 47 will not all come out at the same time; they will be staggered and prioritised. Obviously, the ones that are most germane to safety, such as those on illegal content and children’s safety, will be done first. We would expect them to be done as a matter of extreme urgency.
I hope I have partly answered some of the questions that the hon. Member for Aberdeen North asked. The document to be published before the summer, which she asked about, is a road map. I understand it to be a sort of timetable that will set out the plan for doing everything we have just been debating—when the consultations will happen and when the codes of practice will be published. I guess we will get the road map in the next few weeks, if “before the summer” means before the summer recess. We will have all that set out for us, and then the formal process follows Royal Assent. I hope that answers the hon. Lady’s question.
There were one or two other questions from the hon. Member for Pontypridd. She asked whether a Secretary of State might misuse the power in clause 43(2)—a shocking suggestion, obviously. The power is only to request a review; it is nothing more sinister or onerous than that.
On clause 44, the hon. Lady asked what would happen if Ofcom and the Secretary of State between them—it would require both—conspired to allow through a change claiming it is minor when in fact it is not minor. First, it would require both of them to do that. It requires Ofcom to propose it and the Secretary of State to agree it, so I hope the fact that it is not the Secretary of State acting alone gives her some assurance. She asked what the redress is if both the Secretary of State and Ofcom misbehave, as it were. Well, the redress is the same as with any mis-exercise of a public power—namely, judicial review, which, as a former Home Office Minister, I have experienced extremely frequently—so there is legal redress.
The hon. Lady then asked about the alternative measures. What if a service provider, rather than meeting its duties via the codes of practice, does one of the alternative measures instead? Is it somehow wriggling out of what it is supposed to do? The thing that is legally binding, which it must do and about which there is no choice because there is a legal duty, is the duties that we have been debating over the past few days. Those are the binding requirements that cannot be circumvented. The codes of practice propose a way of meeting those. If the service provider can meet the duties in a different way and can satisfy Ofcom that it has met those duties as effectively as it would under the codes of practices, it is open to doing that. We do not want to be unduly prescriptive. The test is: have the duties been delivered? That is non-negotiable and legally binding.
I hope I have answered all the questions, while gently resisting amendment 48 and encouraging the Committee to agree that the various other clauses stand part of the Bill.
Question put, That the amendment be made.
The Committee divided:.
Online Safety Bill (Ninth sitting)
Tuesday 14th June 2022
(3 years, 7 months ago)
Public Bill CommitteesOnline Safety Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 June 2022 - (14 Jun 2022)
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Chair
We are now sitting in public and the proceedings are being broadcast. Please switch electronic devices to silent. Tea and coffee are not allowed during sittings.
Clause 40
Secretary of State’s powers of direction
John Nicolson (Ochil and South Perthshire) (SNP)
I beg to move amendment 84, in clause 40, page 38, line 5, leave out subsection (a).
This amendment would remove the ability of the Secretary of State to modify Ofcom codes of practice ‘for reasons of public policy’.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clause 41 stand part.
New clause 12—Secretary of State’s powers to suggest modifications to a code of practice—
“(1) The Secretary of State may on receipt of a code write within one month of that day to OFCOM with reasoned, evidence-based suggestions for modifying the code.
(2) OFCOM shall have due regard to the Secretary of State’s letter and must reply to the Secretary of State within one month of receipt.
(3) The Secretary of State may only write to OFCOM twice under this section for each code.
(4) The Secretary of State and OFCOM shall publish their letters as soon as reasonably possible after transmission, having made any reasonable redactions for public safety and national security.
(5) If the draft of a code of practice contains modifications made following changes arising from correspondence under this section, the affirmative procedure applies.”
This new clause gives the Secretary of State powers to suggest modifications to a code of practice, as opposed to the powers of direction proposed in clause 40.
John Nicolson
Amendment 84 is very simple: it removes one sentence—
“for reasons of public policy”.
Of all the correspondence that I have had on the Bill—there has been quite a lot—this is the clause that has most aggrieved the experts. A coalition of groups with a broad range of interests, including child safety, human rights, women and girls, sport and democracy, all agree that the Secretary of State is granted excessive powers in the Bill, and that it threatens the independence of the independent regulator. Businesses are also wary of this power, in part due to the uncertainty that it causes.
The reduction of Ministers’ powers under the Bill was advised by the Joint Committee on the draft Bill and by the Digital, Culture, Media and Sport Committee. I am sure that the two hon. Members on the Government Benches who sat on those Committees and added their names to their reports—the hon. Members for Watford and for Wolverhampton North East—will vote for the amendment. How could they possibly have put their names to the Select Committee report and the Joint Committee report and then just a few weeks later decide that they no longer support the very proposals that they had advanced?
Could the Minister inform us which special interest groups specifically have backed the Secretary of State’s public policy powers under the Bill? I am fascinated to know. Surely, all of us believe in public policy that is informed by expert evidence. If the Secretary of State cannot produce any experts at all who believe that the powers that she enjoys are appropriate or an advantage, or improve legislation, then we should not be proceeding in the way that we are. Now that I know that our proceedings are being broadcast live, I also renew my call to anyone watching who is in favour of these powers as they are to say so, because so far we have found no one who holds that position.
We should be clear about exactly what these powers do. Under clause 40, the Secretary of State can modify the draft codes of practice, thus allowing the Government a huge amount of power over the independent communications regulator. The Government have attempted to play down these powers by stating that they would be used only in exceptional circumstances. However, the legislation does not define what “exceptional circumstances” means, and it is far too nebulous a term for us to proceed under the current circumstances. Rather, a direction can reflect public policy. Will the Minister also clarify the difference between “public policy” and “government policy”, which was the wording in the draft Bill?
The regulator must not be politicised in this way. Regardless of the political complexion of the Government, when they have too much influence over what people can say online, the implications for freedom of speech are grave, especially when the content that they are regulating is not illegal. I ask the Minister to consider how he would feel if, rather than being a Conservative, the Culture Secretary came from among my friends on the Labour Benches. I would argue that that would be a significant improvement, but I imagine that the Minister would not. I see from his facial expression that that is the case.
There are ways to future-proof and enhance the transparency of Ofcom in the Bill that do not require the overreach of these powers. When we are allowing the Executive powers over the communications regulator, the protections must be absolute and iron-clad. As it stands, the Bill leaves leeway for abuse of these powers. No matter how slim a chance the Minister feels that there is of that, as parliamentarians we must not allow it. That is why I urge the Government to consider amendment 84.
As somebody who is new to these proceedings, I think it would be nice if, just for once, the Government listened to arguments and were prepared to accept them, rather than us going through this Gilbert and Sullivan pantomime where we advance arguments, we vote and we always lose. The Minister often says he agrees with us, but he still rejects whatever we say.
Alex Davies-Jones (Pontypridd) (Lab)
Good morning, Ms Rees; it is, as always, a pleasure to serve under your chairship.
Amendment 84 would remove the Secretary of State’s ability to modify Ofcom codes of practice
“for reasons of public policy”.
Labour agrees with the Carnegie UK Trust assessment of this: the codes are the fulcrum of the regulatory regime and it is a significant interference in Ofcom’s independence. Ofcom itself has noted that the “reasons of public policy” power to direct might weaken the regime. If Ofcom has undertaken a logical process, rooted in evidence, to arrive at a draft code, it is hard to see how a direction based on “reasons of public policy” is not irrational. That then creates a vulnerability to legal challenge.
On clause 40 more widely, the Secretary of State should not be able to give Ofcom specific direction on non-strategic matters. Ofcom’s independence in day-to-day decision making is paramount to preserving freedom of expression. Independence of media regulators is the norm in developed democracies. The UK has signed up to many international statements in that vein, including as recently as April 2022 at the Council of Europe. That statement says that
“media and communication governance should be independent and impartial to avoid undue influence on policy making, discriminatory treatment and preferential treatment of powerful groups, including those with significant political or economic power.”
The Bill introduces powers for the Secretary of State to direct Ofcom on internet safety codes. These provisions should immediately be removed. After all, in broadcasting regulation, Ofcom is trusted to make powerful programme codes with no interference from the Secretary of State. Labour further notes that although the draft Bill permitted this
“to ensure that the code of practice reflects government policy”,
clause 40 now specifies that any code may be required to be modified
“for reasons of public policy”.
Although that is more normal language, it is not clear what in practice the difference in meaning is between the two sets of wording. I would be grateful if the Minister could confirm what that is.
The same clause gives the Secretary of State powers to direct Ofcom, on national security or public safety grounds, in the case of terrorism or CSEA—child sexual exploitation and abuse—codes of practice. The Secretary of State might have some special knowledge of those, but the Government have not demonstrated why they need a power to direct. In the broadcasting regime, there are no equivalent powers, and the Secretary of State was able to resolve the case of Russia Today, on national security grounds, with public correspondence between the Secretary of State and Ofcom.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)
Good morning, Ms Rees; it is a pleasure to serve under your chairmanship again. The SNP spokesman and the shadow Minister have already explained what these provisions do, which is to provide a power for the Secretary of State to make directions to Ofcom in relation to modifying a code of conduct. I think it is important to make it clear that the measures being raised by the two Opposition parties are, as they said, envisaged to be used only in exceptional circumstances. Of course the Government accept that Ofcom, in common with other regulators, is rightly independent and there should be no interference in its day-to-day regulatory decisions. This clause does not seek to violate that principle.
However, we also recognise that although Ofcom has great expertise as a regulator, there may be situations in which a topic outside its area of expertise needs to be reflected in a code of practice, and in those situations, it may be appropriate for a direction to be given to modify a code of conduct. A recent and very real example would be in order to reflect the latest medical advice during a public health emergency. Obviously, we saw in the last couple of years, during covid, some quite dangerous medical disinformation being spread—concerning, for example, the safety of vaccines or the “prudence” of ingesting bleach as a remedy to covid. There was also the purported and entirely false connection between 5G phone masts and covid. There were issues on public policy grounds—in this case, medical grounds—and it might have been appropriate to make sure that a code of conduct was appropriately modified.
Dean Russell (Watford) (Con)
It was mentioned earlier that some of us were on previous Committees that made recommendations more broadly that would perhaps be in line with the amendment. Since that time, there has been lots of discussion around this topic, and I have raised it with the Minister and colleagues. I feel reassured that there is a great need to keep the clause as is because of the fact that exceptional circumstances do arise. However, I would like reassurances that directions would be made only in exceptional circumstances and would not override the Ofcom policy or remit, as has just been discussed.
Chris Philp
I can provide my hon. Friend with that reassurance on the exceptional circumstances point. The Joint Committee report was delivered in December, approximately six months ago. It was a very long report—I think it had more than 100 recommendations. Of course, members of the Committee are perfectly entitled, in relation to one or two of those recommendations, to have further discussions, listen further and adjust their views if they individually see fit.
Chris Philp
Let me just finish this point and then I will give way. The shadow SNP spokesman, the hon. Member for Ochil and South Perthshire, asked about the Government listening and responding, and we accepted 66 of the Joint Committee’s recommendations —a Committee that he served on. We made very important changes to do with commercial pornography, for example, and fraudulent advertising. We accepted 66 recommendations, so it is fair to say we have listened a lot during the passage of this Bill. On the amendments that have been moved in Committee, often we have agreed with the amendments but the Bill has already dealt with the matter. I wanted to respond to those two points before giving way.
John Nicolson
I am intrigued, as I am sure viewers will be. What is the new information that has come forward since December that has resulted in the Minister believing that he must stick with this? He has cited new information and new evidence, and I am dying to know what it is.
Chris Philp
I am afraid it was not me that cited new information. It was my hon. Friend the Member for Watford who said he had had further discussions with Ministers. I am delighted to hear that he found those discussions enlightening, as I am sure they—I want to say they always are, but let us say they often are.
Dame Maria Miller (Basingstoke) (Con)
Before my hon. Friend moves on, can I ask a point of clarification? The hon. Member for Ochil and South Perthshire is right that this is an important point, so we need to understand it thoroughly. I think he makes a compelling argument about the exceptional circumstances. If Ofcom did not agree that a change that was being requested was in line with what my hon. Friend the Minister has said, how would it be able to discuss or, indeed, challenge that?
Chris Philp
My right hon. Friend raises a good question. In fact, I was about to come on to the safeguards that exist to address some of the concerns that have been raised this morning. Let me jump to the fourth of the safeguards, which in many ways is the most powerful and directly addresses my right hon. Friend’s question.
In fact, a change has been made. The hon. Member for Ochil and South Perthshire asked what changes had been made, and one important change—perhaps the change that my hon. Friend the Member for Watford found convincing—was the insertion of a requirement for the codes, following a direction, to go before Parliament and be voted on using the affirmative procedure. That is a change. The Bill previously did not have that in it. We inserted the use of the affirmative procedure to vote on a modified code in order to introduce extra protections that did not exist in the draft of the Bill that the Joint Committee commented on.
I hope my right hon. Friend the Member for Basingstoke will agree that if Ofcom had a concern and made it publicly known, Parliament would be aware of that concern before voting on the revised code using the affirmative procedure. The change to the affirmative procedures gives Parliament extra control. It gives parliamentarians the opportunity to respond if they have concerns, if third parties raise concerns, or if Ofcom itself raises concerns.
Kirsty Blackman (Aberdeen North) (SNP)
Before the Minister moves off the point about exceptional circumstances, it was the case previously that an amendment of the law resolution was always considered with Finance Bills. In recent years, that has stopped on the basis of it being exceptional circumstances because a general election was coming up. Then the Government changed that, and now they never table an amendment of the law resolution because they have decided that that is a minor change. Something has gone from being exceptional to being minor, in the view of this Government.
The Minister said that he envisions that this measure will be used only in exceptional circumstances. Can he commit himself to it being used only in exceptional circumstances? Can he give the commitment that he expects that it will be used only in exceptional circumstances, rather than simply envisioning that it will be used in such circumstances?
Chris Philp
I have made clear how we expect the clause to be used. I am slightly hesitant to be more categorical simply because I do not want to make comments that might unduly bind a future Secretary of State—or, indeed, a future Parliament, because the measure is subject to the affirmative procedure—even were that Secretary of State, heaven forbid, to come from a party other than mine. Circumstances might arise, such as the pandemic, in which a power such as this needs to be exercised for good public policy reasons—in that example, public health. I would not want to be too categorical, which the hon. Lady is inviting me to be, lest I inadvertently circumscribe the ability of a future Parliament or a future Secretary of State to act.
The power is also limited in the sense that, in relation to matters that are not to do with national security or terrorism or CSEA, the power to direct can be exercised only at the point at which the code is submitted to be laid before Parliament. That cannot be done at any point. The power cannot be exercised at a time of the Secretary of State’s choosing. There is one moment, and one moment only, when that power can be exercised.
I also want to make it clear that the power will not allow the Secretary of State to direct Ofcom to require a particular regulated service to take a particular measure. The power relates to the codes of practice; it does not give the power to intrude any further, beyond the code of practice, in the arena of regulated activity.
I understand the points that have been made. We have listened to the Joint Committee, and we have made an important change, which is that to the affirmative procedure. I hope my explanation leaves the Committee feeling that, following that change, this is a reasonable place for clauses 40 and 41 to rest. I respectfully resist amendment 84 and new clause 12, and urge the Committee to allow clauses 40 and 41 to stand part of the Bill.
Question put, That the amendment be made.
Chris Philp
Given that the clause is clearly uncontentious, I will be extremely brief.
Chris Philp
I can see that that is the most popular thing I have said during the entire session—when you say, “And finally,” in a speech and the crowd cheers, you know you are in trouble.
Regulated user-to-user and search services will have duties to keep records of their risk assessments and the measures they take to comply with their safety duties, whether or not those are the ones recommended in the codes of practice. They must also undertake a children’s access assessment to determine whether children are likely to access their service.
Clause 48 places a duty on Ofcom to produce guidance to assist service providers in complying with those duties. It will help to ensure a consistent approach from service providers, which is essential in maintaining a level playing field. Ofcom will have a duty to consult the Information Commissioner prior to preparing this guidance, as set out in clause 48(2), in order to draw on the expertise of the Information Commissioner’s Office and ensure that the guidance is aligned with wider data protection and privacy regulation.
Question put and agreed to.
Clause 48 accordingly ordered to stand part of the Bill.
Clause 49
“Regulated user-generated content”, “user-generated content”, “news
publisher content”
Kirsty Blackman
I beg to move amendment 89, in clause 49, page 45, line 16, leave out subsection (e).
This amendment would remove the exemption for comments below news articles posted online.
The Chair
With this it will be convenient to discuss amendment 43, in clause 49, page 45, line 19, at end insert—
“(2A) Subsection (2)(e) does not apply in respect of a user-to-user service which is operated by an organisation which—
(a) is a relevant publisher (as defined in section 41 of the Crime and Courts Act 2013); and
(b) has an annual UK turnover in excess of £100 million.”
This amendment removes comments sections operated by news websites where the publisher has a UK turnover of more than £100 million from the exemption for regulated user-generated content.
Kirsty Blackman
Thank you, Ms Rees, for your hard work in chairing the Committee this morning; we really appreciate it. Amendment 89 relates to below-the-line comments on newspaper articles. For the avoidance of doubt, if we do not get amendment 89, I am more than happy to support the Labour party’s amendment 43, which has a similar effect but covers slightly fewer—or many fewer—organisations and places.
Below-the-line comments in newspaper articles are infamous. They are places that everybody fears to go. They are worse than Twitter. In a significant number of ways, below-the-line comments are an absolute sewer. I cannot see any reasonable excuse for them to be excluded from the Bill. We are including Twitter in the Bill; why are we not including below-the-line comments for newspapers? It does not make any sense to me; I do not see any logic.
We heard a lot of evidence relating to freedom of speech and a free press, and I absolutely, wholeheartedly agree with that. However, the amendment would not stop anyone writing a letter to the editor. It would not stop anyone engaging with newspapers in the way that they would have in the print medium. It would still allow that to happen; it would just ensure that below-the-line comments were subject to the same constraints as posts on Twitter. That is the entire point of amendment 89.
I do not think that I need to say much more, other than to add one more thing about the direction by comments to other, more radical and extreme pieces, or bits of information. It is sometimes the case that the comments on a newspaper article will direct people to even more extreme views. The newspaper article itself may be just slightly derogatory, while some of the comments may have links or references to other pieces, and other places on the internet where people can find a more radical point of view. That is exactly what happens on Twitter, and is exactly some of the stuff that we are trying to avoid—sending people down an extremist rabbit hole. I do not understand how the Minister thinks that the clause, which excludes below the line newspaper comments, is justifiable or acceptable.
Having been contacted by a number of newspapers, I understand and accept that some newspapers have moderation policies for their comments sections, but that is not strong enough. Twitter has a moderation policy, but that does not mean that there is actually any moderation, so I do not think that subjecting below-the-line comments to the provisions of the Bill is asking too much. It is completely reasonable for us to ask for this to happen, and I am honestly baffled as to why the Minister and the Government have chosen to make this exemption.
Alex Davies-Jones
Before I address the amendments, I will speak to clause 49 more broadly.
Labour has concerns about a number of subsections of the clause, including subsections (2), and (8) to (10)— commonly known as the news publisher content exemption, which I have spoken about previously. We understand that the intention of the exemption is to shield broadcasters and traditional newspaper publishers from the Bill’s regulatory effects, clause 50(2) defines a “recognised news publisher” as a regulated broadcaster or any other publisher that publishes news, has an office, and has a standards code and complaints process. There is no detail about the latter two requirements, thus enabling almost any news publishing enterprise to design its own code and complaints process, however irrational, and so benefit from the exemption. “News” is also defined broadly, and may include gossip. There remains a glaring omission, which amendment 43 addresses and which I will come to.
During an earlier sitting of the Committee, in response to comments made by my hon. Friend the Member for Liverpool, Walton as we discussed clause 2, the Minister claimed that
“The metaverse is a good example, because even though it did not exist when the structure of the Bill was conceived, anything happening in the metaverse is none the less covered by the Bill. Anything that happens in the metaverse that is illegal or harmful to children, falls into the category of legal but harmful to adults, or indeed constitutes pornography will be covered because the Bill is tech agnostic.”––[Official Report, Online Safety Public Bill Committee, 7 June 2022; c. 204.]
Clause 49 exempts one-to-one live aural communications from the scope of regulation. Given that much interaction in virtual reality is live aural communication, including between two users, it is hard to understand how that would be covered by the Bill.
There is also an issue about what counts as content. Most standard understandings would define “content” as text, video, images and audio, but one of the worries about interactions in VR is that behaviour such as physical violence will be able to be replicated virtually, with psychologically harmful effects. It is very unclear how that would be within the scope of the current Bill, as it does not clearly involve content, so could the Minister please address that point? As he knows, Labour advocates for a systems-based approach, and for risk assessments and systems to take place in a more upstream and tech-agnostic way than under the current approach. At present, the Bill would struggle to be expanded effectively enough to cover those risks.
Amendment 43 removes comments sections operated by news websites where the publisher has a UK turnover of more than £100 million from the exemption for regulated user-generated comment. If the Bill is to be effective in protecting the public from harm, the least it must accomplish is a system of accountability that covers all the largest platforms used by British citizens. Yet as drafted, the Bill would exempt some of the most popular social media platforms online: those hosted on news publisher websites, which are otherwise known as comments sections. The amendment would close that loophole and ensure that the comments sections of the largest newspaper websites are subject to the regime of regulation set out in the Bill.
Newspaper comments sections are no different from the likes of Facebook and Twitter, in that they are social media platforms that allow users to interact with one another. This is done through comments under stories, comments in response to other comments, and other interactions—for example, likes and dislikes on posts. In some ways, their capacity to cause harm to the public is even greater: for example, their reach is in many cases larger than even the biggest of social media platforms. Whereas there are estimated to be around 18 million users of Twitter in the UK, more than twice that number of British citizens access newspaper websites every month, and the harm perpetuated on those platforms is severe.
In July 2020, the rapper Wiley posted a series of antisemitic tweets, which Twitter eventually removed after an unacceptable delay of 48 hours, but under coverage of the incident in The Sun newspaper, several explicitly antisemitic comments were posted. Those comments contained holocaust denial and alleged a global Jewish conspiracy to control the world. They remained up and accessible to The Sun’s 7 million daily readers for the best part of a week. If we exempt comments sections from the Bill’s proposed regime and the duties that the Bill sets for platforms, we will send the message that that kind of vicious, damaging and harmful racism is acceptable.
Similarly, after an antisemitic attack in the German city of Halle, racists comments followed in the comments section under the coverage in The Sun. There are more examples: Chinese people being described as locusts and attacked with other racial slurs; 5G and Bill Gates conspiracy theories under articles on the Telegraph website; and of course, the most popular targets for online abuse, women in public life. Comments that described the Vice-President of the United States as a “rat” and “ho” appeared on the MailOnline. A female union leader has faced dozens of aggressive and abusive comments about her appearance, and many of such comments remain accessible on newspaper comments sections to this day. Some of them have been up for months, others for years.
Last week, the Committee was sent a letter from a woman who was the victim of comments section abuse, Dr Corinne Fowler. Dr Fowler said of the comments that she received:
“These comments contained scores of suggestions about how to kill or injure me. Some were general ideas, such as hanging, but many were gender specific, saying that I should be burnt at the stake like a witch. Comments focused on physical violence, one man advising that I should slapped hard enough to make my teeth chatter”.
She added:
“I am a mother: without me knowing, my son (then 12 years old) read these reader comments. He became afraid for my safety.”
Without the amendment, the Bill cannot do anything to protect women such as Dr Fowler and their families from this vile online abuse, because comments sections will be entirely out of scope of the Bill’s new regime and the duties designed to protect users.
As I understand it, two arguments have been made to support the exemption. First, it is argued that the complaints handlers for the press already deal with such content, but the handler for most national newspapers, the Independent Press Standards Organisation, will not act until a complaint is made. It then takes an average of six months for a complaint to be processed, and it cannot do anything if the comments have not been moderated. The Opposition do not feel that that is a satisfactory response to the seriousness of harms that we know to occur, and which I have described. IPSO does not even have a code to deal with cases of antisemitic abuse that appeared on the comments section of The Sun. IPSO’s record speaks for itself from the examples that I have given, and the many more, and it has proven to be no solution to the severity of harms that appear in newspaper comments sections.
The second argument for an exemption is that publishers are legally responsible for what appears on comments sections, but that is only relevant for illegal harms. For everything else, from disinformation to racial prejudice and abuse, regulation is needed. That is why it is so important that the Bill does the job that we were promised. To keep the public safe from harm online, comments sections must be covered under the Bill.
The amendment is a proportionate solution to the problem of comments section abuse. It would protect user’s freedom of expression and, given that it is subject to a turnover threshold, ensure that duties and other requirements do not place a disproportionate burden on smaller publishers such as locals, independents and blogs.
I have reams and reams and reams of examples from comments sections that all fall under incredibly harmful abuse and should be covered by the Bill. I could be here for hours reading them all out, and while I do not think that anybody in Committee would like me to, I urge Committee members to take a look for themselves at the types of comments under newspaper articles and ask themselves whether those comments should be covered by the terms of the Bill. I think they know the answer.
Kirsty Blackman
On a point of order, Ms Rees. Are we considering clause 49 now? I know that it is supposed to considered under the next set of amendments, but I just wondered, because I have separate comments to make on that clause that I did not make earlier because I spoke purely to the amendment.
The Chair
I did not want to stop Alex Davies-Jones in full flow. When we come to consideration of clause 49, I was going to ask for additional comments, but it is for the Committee to decide whether it is content with that, or would like the opportunity to elaborate on that clause now.
Kirsty Blackman
I am happy to speak on clause 49 now—I can see the Minister is nodding. I really appreciate it, Ms Rees, because I did not want to lose the opportunity to raise concerns about this matter. I have not tabled an amendment but I would appreciate it if the Minister gave consideration to my following comments.
My concern relates to subsection (5) of clause 49, which exempts one-to-one live aural communications in relation to user-to-user services. My concern relates to child sexual abuse and grooming. I am worried that exempting those one-to-one live aural communications allows bad actors, people who are out to attack children, a loophole to do that. We know that on games such as Fortnite, one-to-one aural communication happens.
I am not entirely sure how communication happens on Roblox and whether there is an opportunity for that there. However, we also know that a number of people who play online games have communication on Discord at the same time. Discord is incredibly popular, and we know that there is an opportunity for, and a prevalence of, grooming on there. I am concerned that exempting this creates a loophole for people to attack children in a way that the Minister is trying to prevent with the Bill. I understand why the clause is there but am concerned that the loophole is created.
Chris Philp
Let me start by addressing the substance of the two amendments and then I will answer one or two of the questions that arose in the course of the debate.
As Opposition Members have suggested, the amendments would bring the comments that appear below the line on news websites such as The Guardian, MailOnline or the BBC into the scope of the Bill’s safety duties. They are right to point out that there are occasions when the comments posted on those sites are extremely offensive.
There are two reasons why comments below BBC, Guardian or Mail articles are excluded from the scope of the Bill. First, the news media publishers—newspapers, broadcasters and their representative industry bodies—have made the case to the Government, which we are persuaded by, that the comments section below news articles is an integral part of the process of publishing news and of what it means to have a free press. The news publishers—both newspapers and broadcasters that have websites—have made that case and have suggested, and the Government have accepted, that intruding into that space through legislation and regulation would represent an intrusion into the operation of the free press.
Alex Davies-Jones
I am sorry, but I am having real trouble buying that argument. If the Minister is saying that newspaper comments sections are exempt in order to protect the free press because they are an integral part of it, why do we need the Bill in the first place? Social media platforms could argue in the same way that they are protecting free speech. They could ask, “Why should we regulate any comments on our social media platform if we are protecting free speech?” I am sorry; that argument does not wash.
Chris Philp
There is a difference between random individuals posting stuff on Facebook, as opposed to content generated by what we have defined as a “recognised news publisher”. We will debate that in a moment. We recognise that is different in the Bill. Although the Opposition are looking to make amendments to clause 50, they appear to accept that the press deserve special protection. Article 10 case law deriving from the European convention on human rights also recognises that the press have a special status. In our political discourse we often refer generally to the importance of the freedom of the press. We recognise that the press are different, and the press have made the case—both newspapers and broadcasters, all of which now have websites—that their reader engagement is an integral part of that free speech. There is a difference between that and individuals chucking stuff on Facebook outside of the context of a news article.
There is then a question about whether, despite that, those comments are still sufficiently dangerous that they merit regulation by the Bill—a point that the shadow Minister, the hon. Member for Pontypridd, raised. There is a functional difference between comments made on platforms such as Facebook, Twitter, TikTok, Snapchat or Instagram, and comments made below the line on a news website, whether it is The Guardian, the Daily Mail, the BBC—even The National. The difference is that on social media platforms, which are the principal topic of the Bill, there is an in-built concept of virality—things going viral by sharing and propagating content widely. The whole thing can spiral rapidly out of control.
Virality is an inherent design feature in social media sites. It is not an inherent design feature of the comments we get under the news website of the BBC, The Guardian or the Daily Mail. There is no way of generating virality in the same way as there is on Facebook and Twitter. Facebook and Twitter are designed to generate massive virality in a way that comments below a news website are not. The reach, and the ability for them to grow exponentially, is orders of magnitude lower on a news website comment section than on Facebook. That is an important difference, from a risk point of view.
Kim Leadbeater (Batley and Spen) (Lab)
This issue comes down to a fundamental point—are we looking at volume or risk? There is no difference between an individual—a young person in this instance—seeing something about suicide or self-harm on a Facebook post or in the comments section of a newspaper article. The volume—whether it goes viral or not—does not matter if that individual has seen that content and it has directed them to somewhere that will create serious harm and lead them towards dangerous behaviour. The volume is not the point.
Chris Philp
The hon. Lady raises an important philosophical question that underpins much of the Bill’s architecture. All the measures are intended to strike a balance. Where there are things that are at risk of leading to illegal activity, and things that are harmful to children, we are clamping down hard, but in other areas we are being more proportionate. For example, the legal but harmful to adult duties only apply to category 1 companies, and we are looking at whether that can be extended to other high-risk companies, as we debated earlier. In the earlier provisions that we debated, about “have regard to free speech”, there is a balancing exercise between the safety duties and free speech. A lot of the provisions in the Bill have a sense of balance and proportionality. In some areas, such as child sexual exploitation and abuse, there is no balance. We just want to stop that—end of story. In other areas, such as matters that are legal but harmful and touch on free speech, there is more of a balancing exercise.
In this area of news publisher content, we are again striking a balance. We are saying that the inherent harmfulness of those sites, owing to their functionality—they do not go viral in the same way—is much lower. There is also an interaction with freedom of the press, as I said earlier. Thus, we draw the balance in a slightly different way. To take the example of suicide promotion or self-harm content, there is a big difference between stumbling across something in comment No. 74 below a BBC article, versus the tragic case of Molly Russell—the 14-year-old girl whose Instagram account was actively flooded, many times a day, with awful content promoting suicide. That led her to take her own life.
I think the hon. Member for Batley and Spen would probably accept that there is a functional difference between a comment that someone has to scroll down a long way to find and probably sees only once, and being actively flooded with awful content. In having regard to those different arguments—the risk and the freedom of the press—we try to strike a balance. I accept that they are not easy balances to strike, and that there is a legitimate debate to be had on them. However, that is the reason that we have adopted this approach.
Kirsty Blackman
I have a question on anonymity. On social media there will be a requirement to verify users’ identities, so if somebody posts on Twitter that they want to lynch me, it is possible to find out who that is, provided they do not have an anonymous account. There is no such provision for newspaper comment sections, so I assume it would be much more difficult for the police to find them, or for me not to see anonymous comments that threaten my safety below the line of newspaper articles—comments that are just as harmful, which threaten my safety on social media. Can the Minister can convince me otherwise?
Chris Philp
The hon. Lady is correct in her analysis, I can confirm. Rather similar to the previous point, because of the interaction with freedom of the press—the argument that the newspapers and broadcasters have advanced—and because this is an inherently less viral environment, we have drawn the balance where we have. She is right to highlight a reasonable risk, but we have struck the balance in the way we have for that reason.
The shadow Minister, the hon. Member for Pontypridd, asked whether very harmful or illegal interactions in the metaverse would be covered or whether they have a metaphorical “get out of jail free” card owing to the exemption in clause 49(2)(d) for “one-to-one live aural communications”. In essence, she is asking whether, in the metaverse, if two users went off somewhere and interacted only with each other, that exemption would apply and they would therefore be outwith the scope of the Bill. I am pleased to tell her they would not, because the definition of live one-to-one aural communications goes from clause 49(2)(d) to clause 49(5), which defines “live aural communications”. Clause 49(5)(c) states that the exemption applies only if it
“is not accompanied by user-generated content of any other description”.
The actions of a physical avatar in the metaverse do constitute user-generated content of any other description. Owing to that fact, the exemption in clause 49(2)(d) would not apply to the metaverse.
I am happy to provide clarification on that. It is a good question and I hope I have provided an example of how, even though the metaverse was not conceived when the Bill was conceived, it does have an effect.
Kirsty Blackman
On that point, when it comes to definition of content, we have tabled an amendment about “any other content”. I am not convinced that the definition of content adequately covers what the Minister stated, because it is limited, does not include every possible scenario where it is user-generated and is not future-proofed enough. When we get to that point, I would appreciate it if the Minister would look at the amendment and ensure that what he intends is what happens.
Chris Philp
I am grateful to the hon. Lady for thinking about that so carefully. I look forward to her amendment. For my information, which clause does her amendment seek to amend?
Dean Russell
During the Joint Committee we were concerned about future-proofing. Although I appreciate it is not specifically included in the Bill because it is a House matter, I urge the setting up of a separate Online Safety Act committee that runs over time, so that it can continue to be improved upon and expanded, which would add value. We do not know what the next metaverse will be in 10 years’ time. However, I feel confident that the metaverse was included and I am glad that the Minister has confirmed that.
Chris Philp
I thank my hon. Friend for his service on the Joint Committee. I heard the representations of my right hon. Friend the Member for Basingstoke about a Joint Committee, and I have conveyed them to the higher authorities.
Kirsty Blackman
The amendment that the Minister is asking about is to clause 189, which states:
“‘content’ means anything communicated by means of an internet service, whether publicly or privately, including written material or messages, oral communications, photographs, videos, visual images, music and data of any description”.
It is amendment 76 that, after “including”, would insert “but not limited to”, in order that the Bill is as future-proofed as it can be.
Chris Philp
I thank the hon. Lady for her rapid description of that amendment. We will come to clause 189 in due course. The definition of “content” in that clause is,
“anything communicated by means of an internet service”,
which sounds like it is quite widely drafted. However, we will obviously debate this issue properly when we consider clause 189.
The remaining question—
Dame Maria Miller
I intervene rather than making a subsequent substantive contribution because I am making a very simple point. My hon. Friend the Minister is making a really compelling case about the need for freedom of speech and the need to protect it within the context of newspapers online. However, could he help those who might be listening to this debate today to understand who is responsible if illegal comments are made on newspaper websites? I know that my constituents would be concerned about that, not particularly if illegal comments were made about a Member of Parliament or somebody else in the public eye, but about another individual not in the public eye.
What redress would that individual have? Would it be to ask the newspaper to take down that comment, or would it be that they could find out the identity of the individual who made the comment, or would it be that they could take legal action? If he could provide some clarity on that, it might help Committee members to understand even further why he is taking the position that he is taking.
Chris Philp
I thank my right hon. Friend for that intervention. First, clearly if something illegal is said online about someone, they would have the normal redress to go to the police and the police could seek to exercise their powers to investigate the offence, including requesting the company that hosts the comments—in this case, it would be a newspaper’s or broadcaster’s website—to provide any relevant information that might help to identify the person involved; they might have an account, and if they do not they might have a log-on or IP address. So, the normal criminal investigatory procedures would obviously apply.
Secondly, if the content was defamatory, then—I realise that only people like Arron Banks can sue for libel, but there is obviously civil recourse for libel. And I think there are powers in the civil procedure rules that allow for court orders to be made that require organisations, such as news media websites, to disclose information that would help to identify somebody who is a respondent in a civil case.
Thirdly, there are obviously the voluntary steps that the news publisher might take to remove content. News publishers say that they do that; obviously, their implementation, as we know, is patchy. Nevertheless, there is that voluntary route.
Regarding any legal obligation that may fall on the shoulders of the news publisher itself, I am not sure that I have sufficient legal expertise to comment on that. However, I hope that those first three areas of redress that I have set out give my right hon. Friend some assurance on this point.
Finally, I turn to a question asked by the hon. Member for Aberdeen North. She asked whether the exemption for “one-to-one live aural communications”, as set out in clause 49(2)(d), could inadvertently allow grooming or child sexual exploitation to occur via voice messages that accompany games, for example. The exemption is designed to cover what are essentially phone calls such as Skype conversations—one-to-one conversations that are essentially low-risk.
We believe that the Bill contains other duties to ensure that services are designed to reduce the risk of grooming and to address risks to children, if those risks exist, such as on gaming sites. I would be happy to come back to the hon. Lady with a better analysis and explanation of where those duties sit in the Bill, but there are very strong duties elsewhere in the Bill that impose those obligations to conduct risk assessments and to keep children safe in general. Indeed, the very strongest provisions in the Bill are around stopping child sexual exploitation and abuse, as set out in schedule 6.
Finally, there is a power in clause 174(1) that allows us, as parliamentarians and the Government, to repeal this exemption using secondary legislation. So, if we found in the future that this exemption caused a problem, we could remove it by passing secondary legislation.
Kirsty Blackman
That is helpful for understanding the rationale, but in the light of how people communicate online these days, although exempting telephone conversations makes sense, exempting what I am talking about does not. I would appreciate it if the Minister came back to me on that, and he does not have to give me an answer now. It would also help if he explained the difference between “aural” and “oral”, which are mentioned at different points in the Bill.
Chris Philp
I will certainly come back with a more complete analysis of the point about protecting children—as parents, that clearly concerns us both. The literal definitions are that “aural” means “heard” and “oral” means “spoken”. They occur in different places in the Bill.
This is a difficult issue and legitimate questions have been raised, but as I said in response to the hon. Member for Batley and Spen, in this area as in others, there are balances to strike and different considerations at play—freedom of the press on the one hand, and the level of risk on the other. I think that the clause strikes that balance in an appropriate way.
Question put, That the amendment be made.
Kim Leadbeater
I beg to move amendment 107, in clause 50, page 46, line 46, leave out from end to end of clause and insert
“is a member of an approved regulator (as defined in section 42 of the Crime and Courts Act 2013).”
This amendment expands the definition of a recognised news publisher to incorporate any entity that is a member of an approved regulator.
The primary purpose of the Bill is to protect social media users from harm, and it will have failed if it does not achieve that. Alongside that objective, the Bill must protect freedom of expression and, in particular, the freedom of the press, which I know we are all committed to upholding and defending. However, in evaluating the balance between freedom of the press and the freedom to enjoy the digital world without encountering harm, the Bill as drafted has far too many loopholes and risks granting legal protection to those who wish to spread harmful content and disinformation in the name of journalism.
Amendment 107 will address that imbalance and protect the press and us all from harm. The media exemption in the Bill is a complete exemption, which would take content posted by news publishers entirely out of the scope of platforms’ legal duties to protect their users. Such a powerful exemption must be drafted with care to ensure it is not open to abuse. However, the criteria that organisations must meet to qualify for the exemption, which are set out in clause 50, are loose and, in some cases, almost meaningless. They are open to abuse, they are ambiguous and they confer responsibility on the platforms themselves to decide which publishers meet the Bill’s criteria and which do not.
In evidence that we heard recently, it was clear that the major platforms do not believe it is a responsibility they should be expected to bear, nor do they have the confidence or feel qualified to do so. Furthermore, David Wolfe, chairman of the Press Recognition Panel, has advised that the measure represents a threat to press freedom. I agree.
Opening the gates for any organisation to declare themselves a news publisher by obtaining a UK address, jotting down a standards code on the back of an envelope and inviting readers to send an email if they have any complaints is not defending the press; it is opening the profession up to abuse and, in the long term, risks weakening its rights and protections.
Let us discuss those who may wish to exploit that loophole and receive legal protection to publish harmful content. A number of far-right websites have made white supremacist claims and praised Holocaust deniers. Those websites already meet several of the criteria for exemption and could meet the remaining criteria overnight. The internet is full of groups that describes themselves as news publishers but distribute profoundly damaging and dangerous material designed to promote extremist ideologies and stir up hatred.
We can all think of high-profile individuals who use the internet to propagate disinformation, dangerous conspiracy theories and antisemitic, Islamophobic, homophobic or other forms of abuse. They might consider themselves journalists, but the genuine professionals whose rights we want to protect beg to differ. None of those individuals should be free to publish harmful material as a result of exemptions that are designed for quite a different purpose. Is it really the Government’s intention that any organisation that meets their loose criteria, as defined in the Bill, should be afforded the sacrosanct rights and freedoms of the press that we all seek to defend?
I turn to disinformation, and to hostile state actors who wish to sow the seeds of doubt and division in our politics and our civic life. The Committee has already heard that Russia Today is among those expected to benefit from the exemption. I have a legal opinion from Tamsin Allen, a senior media lawyer at Bindmans LLP, which notes that,
“were the bill to become law in its present form, Russia Today would benefit from the media exemption. The exemption for print and online news publications is so wide that it would encompass virtually all publishers with multiple contributors, an editor and some form of complaints procedure and standards code, no matter how inadequate. I understand that RT is subject to a standards code in Russia and operates a complaints procedure. Moreover, this exemption could also apply to a publisher promoting hate or violence, providing it met the (minimal) standards set out in the bill and constituted itself as a ‘news’ or ‘gossip’ publication. The only such publications which would not be exempt are those published by organisations proscribed under the Terrorism Act.”
If hostile foreign states can exploit this loophole in the Bill to spread disinformation to social media users in the UK, that is a matter of national security and a threat to our freedom and open democracy. The requirement to have a UK address offers little by way of protection. International publishers spreading hate, disinformation or other forms of online harm could easily set up offices in the UK to qualify for this exemption and instantly make the UK the harm capital of the world. For those reasons, the criteria must change.
We heard from several individuals in evidence that the exemption should be removed entirely from the Bill, but we are committed to freedom of the press as well as providing proper protections from harm. Instead of removing the exemption, I propose a change to the qualifying criteria to ensure that credible publishers can access it while extremist and harmful publishers cannot.
My amendment would replace the convoluted list of requirements with a single and simple requirement for the platforms to follow and adhere to: that all print and online media that seeks to benefit from the exemption should be independently regulated under the royal charter provisions that this House has already legislated for. If, as the Bill already says, broadcast media should be defined in this way, why not print media too? Unlike the Government’s criteria, the likes of Russia Today, white supremacist blogs and other deeply disturbing extremist publications simply could not satisfy this requirement. If they were ever to succeed in signing up to such a regulator, they would swiftly be expelled for repeated standards breaches.
Chris Philp
I thank the hon. Member for Batley and Spen for her speech. There is agreement across the House, in this Committee and in the Joint Committee that the commitment to having a free press in this country is extremely important. That is why recognised news publishers are exempted from the provisions of the Bill, as the hon. Lady said.
The clause, as drafted, has been looked at in some detail over a number of years and debated with news publishers and others. It is the best attempt that we have so far collectively been able to come up with to provide a definition of a news publisher that does not infringe on press freedom. The Government are concerned that if the amendment were adopted, it would effectively require news publishers to register with a regulator in order to benefit from the exemption. That would constitute the imposition of a mandatory press regulator by the back door. I put on record that this Government do not support any kind of mandatory or statutory press regulation, in any form, for reasons of freedom of the press. Despite what has been said in previous debates, we think to do that would unreasonably restrict the freedom of the press in this country.
While I understand its intention, the amendment would drive news media organisations, both print and broadcast, into the arms of a regulator, because they would have to join one in order to get the exemption. We do not think it is right to create that obligation. We have reached the philosophical position that statutory or mandatory regulation of the press is incompatible with press freedom. We have been clear about that general principle and cannot accept the amendment, which would violate that principle.
In relation to hostile states, such as Russia, I do not think anyone in the UK press would have the slightest objection to us finding ways to tighten up on such matters. As I have flagged previously, thought is being given to that issue, but in terms of the freedom of the domestic press, we feel very strongly that pushing people towards a regulator is inappropriate in the context of a free press.
The characterisation of these provisions is a little unfair, because some of the requirements are not trivial. The requirement in 50(2)(f) is that there must be a person—I think it includes a legal person as well as an actual person—who has legal responsibility for the material published, which means that, unlike with pretty much everything that appears on the internet, there is an identified person who has legal responsibility. That is a very important requirement. Some of the other requirements, such as having a registered address and a standards code, are relatively easy to meet, but the point about legal responsibility is very important. For that reason, I respectfully resist the amendment.
Kim Leadbeater
I will not push the amendment to a vote, but it is important to continue this conversation, and I encourage the Minister to consider the matter as the Bill proceeds. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
John Nicolson
I beg to move amendment 86, in clause 50, page 47, line 3, after “material” insert—
“or special interest news material”.
The Chair
With this it will be convenient to discuss the following:
Amendment 87, in clause 50, page 47, line 28, leave out the first “is” and insert—
“and special interest news material are”.
Amendment 88, in clause 50, page 47, line 42, at end insert—
““special interest news material” means material consisting of news or information about a particular pastime, hobby, trade, business, industry or profession.”
John Nicolson
In its current form, the Online Safety Bill states that platforms do not have any duties relating to content from recognised media outlets and new publishers, and the outlets’ websites are also exempt from the scope of the Bill. However, the way the Bill is drafted means that hundreds of independently regulated specialist publishers’ titles will be excluded from the protections afforded to recognised media outlets and news publishers. This will have a long-lasting and damaging effect on an indispensable element of the UK’s media ecosystem.
Specialist publishers provide unparalleled insights into areas that broader news management organisations will likely not analyse, and it would surely be foolish to dismiss and damage specialist publications in a world where disinformation is becoming ever more prevalent. The former Secretary of State, the right hon. Member for Maldon (Mr Whittingdale), also raised this issue on Second Reading, where he stated that specialist publishers
“deserve the same level of protection.”—[Official Report, 19 April 2022; Vol. 712, c. 109.]
Part of the rationale for having the news publishers exemption in the Bill is that it means that the press will not be double-regulated. Special interest material is already regulated, so it should benefit from the same exemptions.
Chris Philp
For the sake of clarity, and for the benefit of the Committee and those who are watching, could the hon. Gentleman say a bit more about what he means by specialist publications and perhaps give one or two examples to better illustrate his point?
John Nicolson
I would be delighted to do so. I am talking about specific and occasionally niche publications. Let us take an example. Gardeners’ World is not exactly a hotbed of online harm, and nor is it a purveyor of disinformation. It explains freely which weeds to pull up and which not to, without seeking to confuse people in any way. Under the Bill, however, such publications will be needlessly subjected to rules, creating a regulatory headache for the sector. This is a minor amendment that will help many businesses, and I would be interested to hear from the Minister why the Government will not listen to the industry on this issue.
Chris Philp
I thank the hon. Member for Ochil and South Perthshire for his amendment and his speech. I have a couple of points to make in reply. The first is that the exemption is about freedom of the press and freedom of speech. Clearly, that is most pertinent and relevant in the context of news, information and current affairs, which is the principal topic of the exemption. Were we to expand it to cover specialist magazines—he mentioned Gardeners’ World—I do not think that free speech would have the same currency when it comes to gardening as it would when people are discussing news, current affairs or public figures. The free speech argument that applies to newspapers, and to other people commenting on current affairs or public figures, does not apply in the same way to gardening and the like.
That brings me on to a second point. Only a few minutes ago, the hon. Member for Batley and Spen drew the Committee’s attention to the risks inherent in the clause that a bad actor could seek to exploit. It was reasonable of her to do so. Clearly, however, the more widely we draft the clause—if we include specialist publications such as Gardeners’ World, whose circulation will no doubt soar on the back of this debate—the greater the risk of bad actors exploiting the exemption.
My third point is about undue burdens being placed on publications. To the extent that such entities count as social media platforms—in-scope services—the most onerous duties under the Bill apply only to category 1 companies, or the very biggest firms such as Facebook and so on. The “legal but harmful” duties and many of the risk assessment duties would not apply to many organisations. In fact, I think I am right to say that if the only functionality on their websites is user comments, they would in any case be outside the scope of the Bill. I have to confess that I am not intimately familiar with the functionality of the Gardeners’ World website, but there is a good chance that if all it does is to provide the opportunity to post comments and similar things, it would be outside the scope of the Bill anyway, because it does not have the requisite functionality.
I understand the point made by the hon. Member for Ochil and South Perthshire, we will, respectfully, resist the amendment for the many reasons I have given.
John Nicolson
No, I will let that particular weed die in the bed. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Alex Davies-Jones
Briefly, as with earlier clauses, the Labour party recognises the challenge in finding the balance between freedom of expression and keeping people safe online. Our debate on the amendment has illustrated powerfully that the exemptions as they stand in the Bill are hugely flawed.
First, the exemption is open to abuse. Almost any organisation could develop a standards code and complaints process to define itself as a news publisher and benefit from the exemption. Under those rules, as outlined eloquently by my hon. Friend the Member for Batley and Spen, Russia Today already qualifies, and various extremist publishers could easily join it. Organisations will be able to spread seriously harmful content with impunity—I referred to many in my earlier contributions, and I have paid for that online.
Secondly, the exemption is unjustified, as we heard loud and clear during the oral evidence sessions. I recall that Kyle from FairVote made that point particularly clearly. There are already rigorous safeguards in the Bill to protect freedom of expression. The fact that content is posted by a news provider should not itself be sufficient reason to treat such content differently from that which is posted by private citizens.
Furthermore, quality publications with high standards stand to miss out on the exemption. The Minister must also see the lack of parity in the broadcast media space. In order for broadcast media to benefit from the exemption, they must be regulated by Ofcom, and yet there is no parallel stipulation for non-broadcast media to be regulated in order to benefit. How is that fair? For broadcast media, the requirement to be regulated by Ofcom is simple, but for non-broadcast media, the series of requirements are not rational, exclude many independent publishers and leave room for ambiguity.
Kirsty Blackman
I have a couple of questions that were probably too long for interventions. The Minister said that if comments on a site are the only user-generated content, they are not in scope. It would be really helpful if he explained what exactly he meant by that. We were talking about services that do not fall within the definition of “recognised news publishers”, because we were trying to add them to that definition. I am not suggesting that the Minister is wrong in any way, but I do not understand where the Bill states that those comments are excluded, and how this all fits together.
Chris Philp
I made general comments about clause 50 during the debate on amendment 107; I will not try the Committee’s patience by repeating them, but I believe that in them, I addressed some of the issues that the shadow Minister, the hon. Member for Pontypridd, has raised.
On the hon. Member for Aberdeen North’s question about where the Bill states that sites with limited functionality—for example, functionality limited to comments alone—are out of scope, paragraph 4(1) of schedule 1 states that
“A user-to-user service is exempt if the functionalities of the service are limited, such that users are able to communicate by means of the service only in the following ways—
(a) posting comments or reviews relating to provider content;
(b) sharing such comments or reviews on a different internet service”.
Clearly, services where a user can share freely are in scope, but if they cannot share directly—if they can only share via another service, such as Facebook—that service is out of scope. This speaks to the point that I made to the hon. Member for Batley and Spen in a previous debate about the level of virality, because the ability of content to spread, proliferate, and be forced down people’s throats is one of the main risks that we are seeking to address through the Bill. I hope that paragraph 4(1) of schedule 1 is of assistance, but I am happy to discuss the matter further if that would be helpful.
Question put and agreed to.
Clause 50 accordingly ordered to stand part of the Bill.
Clause 51
“Search content”, “search results” etc
Question proposed, That the clause stand part of the Bill.
Alex Davies-Jones
Labour does not oppose the intention of the clause. It is important to define “search content” in order to understand the responsibilities that fall within search services’ remits.
However, we have issues with the way that the Bill treats user-to-user services and search services differently when it comes to risk-assessing and addressing legal harm—an issue that we will come on to when we debate schedule 10. Although search services rightly highlight that the content returned by a search is not created or published by them, the algorithmic indexing, promotion and search prompts provided in search bars are fundamentally their responsibility. We do, however, accept that over the past 20 years, Google, for example, has developed mechanisms to provide a safer search experience for users while not curtailing access to lawful information. We also agree that search engines are critical to the proper functioning of the world wide web; they play a uniquely important role in facilitating access to the internet, and enable people to access, impart, and disseminate information.
Question put and agreed to.
Clause 51 accordingly ordered to stand part of the Bill.
Clause 52
“Illegal content” etc
Alex Davies-Jones
I beg to move amendment 61, in clause 52, page 49, line 5, at end insert—
“(4A) An offence referred to in subsection (4) is deemed to have occurred if it would be an offence under the law of the United Kingdom regardless of whether or not it did take place in the United Kingdom.”
This amendment brings offences committed overseas within the scope of relevant offences for the purposes of defining illegal content.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
That schedules 5 and 6 be the Fifth and Sixth schedules to the Bill.
Alex Davies-Jones
With your permission, Ms Rees, I will speak to clause 52 before coming to amendment 61. Illegal content is defined in clause 52(2) as
“content that amounts to a relevant offence.”
However, as the Minister will know from representations from Carnegie UK to his Department—we share its concerns—the illegal and priority illegal regimes may not be able to operate as intended. The Bill requires companies to decide whether content “amounts to” an offence, with limited room for movement. We share concerns that that points towards decisions on an item-by-item basis; it means detecting intent for each piece of content. However, such an approach does not work at the scale on which platforms operate; it is bad regulation and poor risk management.
There seem to be two different problems relating to the definition of “illegal content” in clause 52. The first is that it is unclear whether we are talking about individual items of content or categories of content—the word “content” is ambiguous because it can be singular or plural—which is a problem for an obligation to design and run a system. Secondly, determining when an offence has taken place will be complex, especially bearing in mind mens rea and defences, so the providers are not in a position to get it right.
The use of the phrase “amounts to” in clause 52(2) seems to suggest that platforms will be required to identify accurately, in individual cases, where an offence has been committed, without any wriggle room drafted in, unlike in the draft Bill. As the definition now contains no space for error either side of the line, it could be argued that there are more incentives to avoid false negatives than false positives—providers can set higher standards than the criminal law—and that leads to a greater risk of content removal. That becomes problematic, because it seems that the obligation under clause 9(3) is then to have a system that is accurate in all cases, whereas it would be more natural to deal with categories of content. This approach seems not to be intended; support for that perspective can be drawn from clause 9(6), which recognises that there is a distinction between categories of content and individual items, and that the application of terms of service might specifically have to deal with individual instances of content. Critically, the “amounts to” approach cannot work in conjunction with a systems-based approach to harm reduction. That leaves victims highly vulnerable.
This problem is easily fixed by a combination of reverting to the draft Bill’s language, which required reasonableness, and using concepts found elsewhere in the Bill that enable a harm mitigation system to operate for illegal content. We also remind the Minister that Ofcom raised this issue in the evidence sessions. I would be grateful if the Minister confirmed whether we can expect a Government amendment to rectify this issue shortly.
More broadly, as we know, priority illegal content, which falls within illegal content, includes,
“(a) terrorism content,
(b) CSEA content, and
(c) content that amounts to an offence specified in Schedule 7”,
as set out in clause 52(7). Such content attracts a greater level of scrutiny and regulation. Situations in which user-generated content will amount to “a relevant offence” are set out in clause 52(3). Labour supports the inclusion of a definition of illegal content as outlined in the grouping; it is vital that service providers and platforms have a clear indication of the types of content that they will have a statutory duty to consider when building, or making changes to the back end of, their business models.
We have also spoken about the importance of parity between the online and offline spaces—what is illegal offline must be illegal online—so the Minister knows we have more work to do here. He also knows that we have broad concerns around the omissions in the Bill. While we welcome the inclusion of terrorism and child sexual exploitation content as priority illegal content, there remain gaps in addressing violence against women and girls content, which we all know is hugely detrimental to many online.
The UK Government stated that their intention for the Online Safety Bill was to make the UK the safest place to be online in the world, yet the Bill does not mention online gender-based violence once. More than 60,000 people have signed the Glitch and End Violence Against Women Coalition’s petition calling for women and girls to be included in the Bill, so the time to act is now. We all have a right to not just survive but thrive, engage and play online, and not have our freedom of expression curtailed or our voices silenced by perpetrators of abuse. The online space is just as real as the offline space. The Online Safety Bill is our opportunity to create safe digital spaces.
The Bill must name the problem. Violence against women and girls, particularly those who have one or multiple protected characteristics, is creating harm and inequality online. We must actively and meaningfully name this issue and take an intersectional approach to ending online abuse to ensure that the Bill brings meaningful change for all women. We also must ensure that the Bill truly covers all illegal content, whether it originated in the UK or not.
Amendment 61 brings offences committed overseas within the scope of relevant offences for the purposes of defining illegal content. The aim of the amendment is to clarify whether the Bill covers content created overseas that would be illegal if what was shown in the content took place in the UK. For example, animal abuse and cruelty content is often filmed abroad. The same can be said for dreadful human trafficking content and child sexual exploitation. The optimal protection would be if the Bill’s definition of illegal content covered matter that would be illegal in either the UK or the country it took place in, regardless of whether it originated in the UK.
Kirsty Blackman
I do not intend to make a speech, but I want to let the hon. Lady know that we wholeheartedly support everything that she has said on the clause and amendment 61.
Alex Davies-Jones
I am grateful for the hon. Member’s contribution, and for her support for the amendment and our comments on the clause.
The Bill should be made clearer, and I would appreciate an update on the Minister’s assessment of the provisions in the Bill. Platforms and service providers need clarity if they are to take effective action against illegal content. Gaps in the Bill give rise to serious questions about the overwhelming practical challenges of the Bill. None of us wants a two-tier internet, in which user experience and platforms’ responsibilities in the UK differ significantly from those in the rest of the world. Clarifying the definition of illegal content and acknowledging the complexity of the situation when content originates abroad are vital if this legislation is to tackle wide-ranging, damaging content online. That is a concern I raised on Second Reading, and a number of witnesses reiterated it during the oral evidence sessions. I remind the Committee of the comments of Kevin Bakhurst from Ofcom, who said:
“We feel it is really important—hopefully this is something the Committee can contribute to—that the definition of ‘illegal content’ is really clear for platforms, and particularly the area of intent of illegality, which at the moment might be quite tricky for the platforms to pick up on.”––[Official Report, Online Safety Public Bill Committee, 24 May 2022; c. 8, Q7.]
That has been reiterated by myriad other stakeholders, so I would be grateful for the Minister’s comments.
Dame Maria Miller
I rise to speak on clause 52 stand part, particularly —the Minister will not be surprised—the element in subsection (4)(c) around the offences specified in schedule 7. The debate has been very wide ranging throughout our sittings. It is extraordinary that we need a clause defining what is illegal. Presumably, most people who provide goods and services in this country would soon go out of business if they were not knowledgeable about what is illegal. The Minister is helping the debate very much by setting out clearly what is illegal, so that people who participate in the social media world are under no illusion as to what the Government are trying to achieve through this legislation.
The truth is that the online world has unfolded without a regulatory framework. New offences have emerged, and some of them are tackled in the Bill, particularly cyber-flashing. Existing offences have taken on a new level of harm for their victims, particularly when it comes to taking, making and sharing intimate images without consent. As the Government have already widely acknowledged, because the laws on that are such a patchwork, it is difficult for the enforcement agencies in this country to adequately protect the victims of that heinous crime, who are, as the Minister knows, predominately women.
Chris Philp
I thank right hon. and hon. Members who have participated in the debate on this extremely important clause. It is extremely important because the Bill’s strongest provisions relate to illegal content, and the definition of illegal content set out in the clause is the starting point for those duties.
A number of important questions have been asked, and I would like to reply to them in turn. First, I want to speak directly about amendment 61, which was moved by the shadow Minister and which very reasonably and quite rightly asked the question about physically where in the world a criminal offence takes place. She rightly said that in the case of violence against some children, for example, that may happen somewhere else in the world but be transmitted on the internet here in the United Kingdom. On that, I can point to an existing provision in the Bill that does exactly what she wants. Clause 52(9), which appears about two thirds of the way down page 49 of the Bill, states:
“For the purposes of determining whether content amounts to an offence, no account is to be taken of whether or not anything done in relation to the content takes place in any part of the United Kingdom.”
What that is saying is that it does not matter whether the act of concern takes place physically in the United Kingdom or somewhere else, on the other side of the world. That does not matter in looking at whether something amounts to an offence. If it is criminal under UK law but it happens on the other side of the world, it is still in scope. Clause 52(9) makes that very clear, so I think that that provision is already doing what the shadow Minister’s amendment 61 seeks to do.
The shadow Minister asked a second question about the definition of illegal content, whether it involves a specific act and how it interacts with the “systems and processes” approach that the Bill takes. She is right to say that the definition of illegal content applies item by item. However, the legally binding duties in the Bill, which we have already debated in relation to previous clauses, apply to categories of content and to putting in place “proportionate systems and processes”—I think that that is the phrase used. Therefore, although the definition is particular, the duty is more general, and has to be met by putting in place systems and processes. I hope that my explanation provides clarification on that point.
The shadow Minister asked another question about the precise definitions of how the platforms are supposed to decide whether content meets the definition set out. She asked, in particular, questions about how to determine intent—the mens rea element of the offence. She mentioned that Ofcom had had some comments in that regard. Of course, the Government are discussing all this closely with Ofcom, as people would expect. I will say to the Committee that we are listening very carefully to the points that are being made. I hope that that gives the shadow Minister some assurance that the Government’s ears are open on this point.
The next and final point that I would like to come to was raised by all speakers in the debate, but particularly by my right hon. Friend the Member for Basingstoke, and is about violence against women and girls—an important point that we have quite rightly debated previously and come to again now. The first general point to make is that clause 52(4)(d) makes it clear that relevant offences include offences where the intended victim is an individual, so any violence towards and abuse of women and girls is obviously included in that.
As my right hon. Friend the Member for Basingstoke and others have pointed out, women suffer disproportionate abuse and are disproportionately the victims of criminal offences online. The hon. Member for Aberdeen North pointed out how a combination of protected characteristics can make the abuse particularly impactful—for example, if someone is a woman and a member of a minority. Those are important and valid points. I can reconfirm, as I did in our previous debate, that when Ofcom drafts the codes of practice on how platforms can meet their duties, it is at liberty to include such considerations. I echo the words spoken a few minutes ago by my right hon. Friend the Member for Basingstoke: the strong expectation across the House—among all parties here—is that those issues will be addressed in the codes of practice to ensure that those particular vulnerabilities and those compounded vulnerabilities are properly looked at by social media firms in discharging those duties.
My right hon. Friend also made points about intimate image abuse when the intimate images are made without the consent of the subject—the victim, I should say. I would make two points about that. The first relates to the Bill and the second looks to the future and the work of the Law Commission. On the Bill, we will come in due course to clause 150, which relates to the new harmful communications offence, and which will criminalise a communication—the sending of a message—when there is a real and substantial risk of it causing harm to the likely audience and there is intention to cause harm. The definition of “harm” in this case is psychological harm amounting to at least serious distress.
Clearly, if somebody is sending an intimate image without the consent of the subject, it is likely that that will cause harm to the likely audience. Obviously, if someone sends a naked image of somebody without their consent, that is very likely to cause serious distress, and I can think of few reasons why somebody would do that unless it was their intention, meaning that the offence would be made out under clause 150.
My right hon. Friend has strong feelings, which I entirely understand, that to make the measure even stronger the test should not involve intent at all, but should simply be a question of consent. Was there consent or not? If there was no consent, an offence would have been committed, without needing to go on to establish intention as clause 150 provides. As my right hon. Friend has said, Law Commission proposals are being developed. My understanding is that the Ministry of Justice, which is the Department responsible for this offence, is expecting to receive a final report, I am told, over the summer. It would then clearly be open to Parliament to legislate to put the offence into law, I hope as quickly as possible.
Once that happens, through whichever legislative vehicle, it will have two implications. First, the offence will automatically and immediately be picked up by clause 52(4)(d) and brought within the scope of the Bill because it is an offence where the intended victim is an individual. Secondly, there will be a power for the Secretary of State and for Parliament, through clause 176, I think—I am speaking from memory; yes, it is clause 176, not that I have memorised every clause in the Bill—via statutory instrument not only to bring the offence into the regular illegal safety duties, but to add it to schedule 7, which contains the priority offences.
Once that intimate image abuse offence is in law, via whichever legislative vehicle, that will have that immediate effect with respect to the Bill, and by statutory instrument it could be made a priority offence. I hope that gives my right hon. Friend a clear sense of the process by which this is moving forward.
Dame Maria Miller
I thank the Minister for such a clear explanation of his plan. Can he confirm that the Bill is a suitable legislative vehicle? I cannot see why it would not be. I welcome his agreement about the need for additional legislation over and above the communications offence. In the light of the way that nudification software and deepfake are advancing, and the challenges that our law enforcement agencies have in interpreting those quite complex notions, a straightforward law making it clear that publishing such images is a criminal offence would not only help law enforcement agencies, but would help the perpetrators to understand that what they are doing is a crime and they should stop.
Chris Philp
As always, the right hon. Lady makes an incredibly powerful point. She asked specifically about whether the Bill is a suitable legislative vehicle in which to implement any Law Commission recommendations—we do not yet have the final version of that report—and I believe that that would be in scope. A decision about legislative vehicles depends on the final form of the Law Commission report and the Ministry of Justice response to it, and on cross-Government agreement about which vehicle to use.
I hope that addresses all the questions that have been raised by the Committee. Although the shadow Minister is right to raise the question, I respectfully ask her to withdraw amendment 61 on the basis that those matters are clearly covered in clause 52(9). I commend the clause to the Committee.
Alex Davies-Jones
I am grateful to the Minister for his comments. The Labour party has concerns that clause 52(9) does not adequately get rid of the ambiguity around potential illegal online content. We feel that amendment 61 sets that out very clearly, which is why we will press it to a vote.
Chris Philp
Just to help the Committee, what is it in clause 52(9) that is unclear or ambiguous?
Alex Davies-Jones
We just feel that amendment 61 outlines matters much more explicitly and leaves no ambiguity by clearly defining any
“offences committed overseas within the scope of relevant offences for the purposes of defining illegal content.”
Chris Philp
I think they say the same thing, but we obviously disagree.
Question put, That the amendment be made.
Barbara Keeley
No, it hasn’t. We did not get a chance to speak to either schedule 5 or schedule 6.
The Chair
Sorry; they were in the group, so we have to carry on.
Schedules 5 and 6 agreed to.
Ordered, That further consideration be now adjourned.—(Steve Double.)
Online Safety Bill (Tenth sitting)
Tuesday 14th June 2022
(3 years, 7 months ago)
Public Bill CommitteesOnline Safety Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 14 June 2022 - (14 Jun 2022)
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 7 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 7 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 7 - Question accordingly negatived.
John Nicolson (Ochil and South Perthshire) (SNP)
I beg to move amendment 142, in schedule 7, page 183, line 11, leave out from “under” to the end of line and insert
“any of the following provisions of the Suicide Act 1961—
(a) section 2;
(b) section 3A (inserted by section Communication offence for encouraging or assisting self-harm of this Act).”
The Chair
With this it will be convenient to discuss new clause 36—Communication offence for encouraging or assisting self-harm—
‘(1) In the Suicide Act 1961, after section 3 insert—
“3A Communication offence for encouraging or assisting self-harm
(1) A person (“A”) commits an offence if—
(a) A sends a message,
(b) the message encourages or could be used to assist another person (“B”) to inflict serious physical harm upon themselves, and
(c) A’s act was intended to encourage or assist the infliction of serious physical harm.
(2) The person referred to in subsection (1)(b) need not be a specific person (or class of persons) known to, or identified by, A.
(3) A may commit an offence under this section whether or not any person causes serious physical harm to themselves, or attempts to do so.
(4) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both;
(b) on indictment, to imprisonment for a term not exceeding 5 years, or a fine, or both.
(5) “Serious physical harm” means serious injury amounting to grievous bodily harm within the meaning of the Offences Against the Person Act 1861.
(6) No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.
(7) If A arranges for a person (“A2”) to do an Act and A2 does that Act, A is also to be treated as having done that Act for the purposes of subsection (1).
(8) In proceedings for an offence to which this section applies, it shall be a defence for A to prove that—
(a) B had expressed intention to inflict serious physical harm upon themselves prior to them receiving the message from A;
(b) B’s intention to inflict serious physical harm upon themselves was not initiated by A; and
(c) the message was wholly motivated by compassion towards B or to promote the interests of B’s health or wellbeing.”’
John Nicolson
New clause 36 seeks to criminalise the encouragement or assistance of a suicide. Before I move on to the details of the new clause, I would like to share the experience of a Samaritans supporter, who said:
“I know that every attempt my brother considered at ending his life, from his early 20s to when he died in April, aged 40, was based on extensive online research. It was all too easy for him to find step-by-step instructions so he could evaluate the effectiveness and potential impact of various approaches and, most recently, given that he had no medical background, it was purely his ability to work out the quantities of various drugs and likely impact of taking them in combination that equipped him to end his life.”
It is so easy when discussing the minutiae of the Bill to forget its real-world impact. I have worked with Samaritans on the new clause, and I use that quote with permission. It is the leading charity in trying to create a suicide-safer internet. It is axiomatic to say that suicide and self-harm have a devastating impact on people’s lives. The Bill must ensure that the online space does not aid the spreading of content that would promote this behaviour in any way.
There has rightly been much talk about how children are affected by self-harm content online. However, it should be stressed they do not exclusively suffer because of that content. Between 2011 and 2015, 151 patients who died by suicide were known to have visited websites that encouraged suicide or shared information about methods of harm, and 82% of those patients were aged over 25. It is likely that, as the Bill stands, suicide-promoting content will be covered in category 1 services, as it will be designated as harmful. Unless this amendment is passed, that content will not be covered on smaller sites, which is crucial. As Samaritans has identified, it is precisely in these smaller fora and websites that harm proliferates. The 151 patients who took their own life after visiting harmful websites may have been part of a handful of people using those sites, which would not fall under the definition of category 1, as I am sure the Minister will confirm.
Kim Leadbeater (Batley and Spen) (Lab)
The hon. Gentleman makes a very important point, which comes to the nub of a lot of the issues we face with the Bill: the issue of volume versus risk. Does he agree that one life lost to suicide is one life too many? We must do everything that we can in the Bill to prevent every single life being lost through suicide, which is the aim of his amendment.
John Nicolson
I do, of course, agree. As anyone who has suffered with someone in their family committing suicide knows, it has a lifelong family effect. It is yet another amendment where I feel we should depart from the pantomime of so much parliamentary procedure, where both sides fundamentally agree on things but Ministers go through the torturous process of trying to tell us that every single amendment that any outside body or any Opposition Member, whether from the SNP or the Labour party, comes up with has been considered by the ministerial team and is already incorporated or covered by the Bill. They would not be human if that were the case. Would it not be refreshing if there were a slight change in tactic, and just occasionally the Minister said, “Do you know what? That is a very good point. I think I will incorporate it into the Bill”?
None of us on the Opposition Benches seeks to make political capital out of any of the things we propose. All of us, on both sides of the House, are here with the best of intentions, to try to ensure that we get the best possible Bill. We all want to be able to vote for the Bill at the end of the day. Indeed, as I said, I have worked with two friends on the Conservative Benches—with the hon. Member for Watford on the Joint Committee on the draft Bill and with the hon. Member for Wolverhampton North East on the Select Committee on Digital, Culture, Media and Sport—and, as we know, they have both voted for various proposals. It is perhaps part of the frustration of the party system here that people are forced to go through the hoops and pretend that they do not really agree with things that they actually do agree with.
Let us try to move on with this, in a way that we have not done hitherto, and see if we can agree on amendments. We will withdraw amendments if we are genuinely convinced that they have already been considered by the Government. On the Government side, let them try to accept some of our amendments—just begin to accept some—if, as with this one, they think they have some merit.
I was talking about Samaritans, and exactly what it wants to do with the Bill. It is concerned about harmful content after the Bill is passed. This feeds into potentially the most important aspect of the Bill: it does not mandate risk assessments based exclusively on risk. By adding in the qualifications of size and scope, the Bill wilfully lets some of the most harmful content slip through its fingers—wilfully, but I am sure not deliberately. Categorisation will be covered by a later amendment, tabled by my hon. Friend the Member for Aberdeen North, so I shall not dwell on it now.
In July 2021, the Law Commission for England and Wales recommended the creation of a new narrow offence of the “encouragement or assistance” of serious self-harm with “malicious intent”. The commission identified that there is
“currently no offence that adequately addresses the encouragement of serious self-harm.”
The recommendation followed acknowledgement that
“self-harm content online is a worrying phenomenon”
and should have a
“robust fault element that targets deliberate encouragement of serious self-harm”.
Currently, there are no provisions of the Bill to create a new offence of assisting or encouraging self- harm.
In conclusion, I urge the Minister to listen not just to us but to the expert charities, including Samaritans, to help people who have lived experience of self-harm and suicide who are calling for regulation of these dangerous sites.
Alex Davies-Jones (Pontypridd) (Lab)
Good afternoon, Sir Roger; it is a pleasure, as ever, to serve under your chairship. I rise to speak to new clause 36, which has been grouped with amendment 142 and is tabled in the names of the hon. Members for Ochil and South Perthshire and for Aberdeen North.
I, too, pay tribute to Samaritans for all the work it has done in supporting the Bill and these amendments to it. As colleagues will be aware, new clause 36 follows a recommendation from the Law Commission dating back to July 2021. The commission recommended the creation of a new, narrow offence of the “encouragement or assistance” of serious self-harm with “malicious intent”. It identified that there is
“currently no offence that adequately addresses the encouragement of serious self-harm.”
The recommendation followed acknowledgement that
“self-harm content online is a worrying phenomenon”
and should have a
“robust fault element that targets deliberate encouragement of serious self-harm”.
Currently, there are no provisions in the Bill to create a new offence of assisting or encouraging self-harm, despite the fact that other recommendations from the Law Commission report have been brought into the Bill, such as creating a new offence of cyber-flashing and prioritising tackling illegal suicide content.
We all know that harmful suicide and self-harm content is material that has the potential to cause or exacerbate self-harm and suicidal behaviours. Content relating to suicide and self-harm falls into both categories in the Bill—illegal content and legal but harmful content. Encouraging or assisting suicide is also currently a criminal offence in England and Wales under the Suicide Act 1961, as amended by the Coroners and Justice Act 2009.
Content encouraging or assisting someone to take their own life is illegal and has been included as priority illegal content in the Bill, meaning that platforms will be required to proactively and reactively prevent individuals from encountering it, and search engines will need to structure their services to minimise the risk to individuals encountering the content. Other content, including content that positions suicide as a suitable way of overcoming adversity or describes suicidal methods, is legal but harmful.
The Labour party’s Front-Bench team recognises that not all content falls neatly into the legal but harmful category. What can be helpful for one user can be extremely distressing to others. Someone may find it extremely helpful to share their personal experience of suicide, for example, and that may also be helpful to other users. However, the same material could heighten suicidal feelings and levels of distress in someone else. We recognise the complexities of the Bill and the difficulties in developing a way around this, but we should delineate harmful and helpful content relating to suicide and self-harm, and that should not detract from tackling legal but clearly harmful content.
In its current form, the Bill will continue to allow legal but clearly harmful suicide and self-harm content to be accessed by over-18s. Category 1 platforms, which have the highest reach and functionality, will be required to carry out risk assessments of, and set out in their terms and conditions their approach to, legal but harmful content in relation to over-18s. As the hon. Member for Ochil and South Perthshire outlined, however, the Bill’s impact assessment states that “less than 0.001%” of in-scope platforms
“are estimated to meet the Category 1 and 2A thresholds”,
and estimates that only 20 platforms will be required to fulfil category 1 obligations. There is no requirement on the smaller platforms, including those that actively encourage suicide, to do anything at all to protect over-18s. That simply is not good enough. That is why the Labour party supports new clause 36, and we urge the Minister to do the right thing by joining us.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)
It is, as always, a great pleasure to serve under your chairmanship, Sir Roger. The hon. Member for Ochil and South Perthshire made an observation in passing about the Government’s willingness to listen and respond to parliamentarians about the Bill. We listened carefully to the extensive prelegislative scrutiny that the Bill received, including from the Joint Committee on which he served. As a result, we have adopted 66 of the changes that that Committee recommended, including on significant things such as commercial pornography and fraudulent advertising.
If Members have been listening to me carefully, they will know that the Government are doing further work or are carefully listening in a few areas. We may have more to say on those topics as the Bill progresses; it is always important to get the drafting of the provisions exactly right. I hope that that has indicated to the hon. Gentleman our willingness to listen, which I think we have already demonstrated well.
On new clause 36, it is important to mention that there is already a criminal offence of inciting suicide. It is a schedule 7 priority offence, so the Bill already requires companies to tackle content that amounts to the existing offence of inciting suicide. That is important. We would expect the promotion of material that encourages children to self-harm to be listed as a primary priority harm relating to children, where, again, there is a proactive duty to protect them. We have not yet published that primary priority harm list, but it would be reasonable to expect that material promoting children to self-harm would be on it. Again, although we have not yet published the list of content that will be on the adult priority harm list—obviously, I cannot pre-empt the publication of that list—one might certainly wish for content that promotes adults to self-harm to appear on it too.
The hon. Gentleman made the point that duties relating to adults would apply only to category 1 companies. Of course, the ones that apply to children would apply to all companies where there was significant risk, but he is right that were that priority harm added to the adult legal but harmful list, it would apply only to category 1 companies.
Chris Philp
In a second, but I may be about to answer the hon. Lady’s question.
Those category 1 companies are likely to be small in number, as I think the shadow Minister said, but I would imagine—I do not have the exact number—that they cover well over 90% of all traffic. However, as I hinted on the Floor of the House on Second Reading—we may well discuss this later—we are thinking about including platforms that may not meet the category 1 size threshold but none the less pose high-level risks of harm. If that is done—I stress “if”—it will address the point raised by the hon. Member for Ochil and South Perthshire. That may answer the point that the hon. Member for Batley and Spen was going to raise, but if not, I happily give way.
Kim Leadbeater
It kind of does, but the Minister has raised some interesting points about children and adults and the risk of harm. To go back to the work of Samaritans, it is really important to talk about the fact that suicide is the biggest killer of young people aged 16 to 24, so it transcends the barrier between children and adults. With the right hon. Member for Basingstoke, the hon. Member for Aberdeen North, and the shadow Minister, my hon. Friend the Member for Pontypridd, we have rightly talked a lot about women, but it is really important to talk about the fact that men account for three quarters of all suicide. Men aged between 45 and 49 are most at risk of suicide—the rate among that group has been persistently high for years. It is important that we bring men into the discussion about suicide.
Chris Philp
I am grateful for the element of gender balance that the hon. Member has introduced, and she is right to highlight the suicide risk. Inciting suicide is already a criminal offence under section 2 of the Suicide Act 1961 and we have named it a priority offence. Indeed, it is the first priority offence listed under schedule 7—it appears a third of the way down page 183—for exactly the reason she cited, and a proactive duty is imposed on companies by paragraph 1 of schedule 7.
On amendment 142 and the attendant new clause 36, the Government agree with the sentiment behind them—namely, the creation of a new offence of encouraging or assisting serious self-harm. We agree with the substance of the proposal from the hon. Member for Ochil and South Perthshire. As he acknowledged, the matter is under final consideration by the Law Commission and our colleagues in the Ministry of Justice. The offence initially proposed by the Law Commission was wider in scope than that proposed under new clause 36. The commission’s proposed offence covered the offline world, as well as the online one. For example, the new clause as drafted would not cover assisting a person to self-harm by providing them with a bladed article because that is not an online communication. The offence that the Law Commission is looking at is broader in scope.
The Government have agreed in principle to create an offence based on the Law Commission recommendation in separate legislation, and once that is done the scope of the new offence will be wider than that proposed in the new clause. Rather than adding the new clause and the proposed limited new offence to this Bill, I ask that we implement the offence recommended by the Law Commission, the wider scope of which covers the offline world as well as the online world, in separate legislation. I would be happy to make representations to my colleagues in Government, particularly in the MOJ, to seek clarification about the relevant timing, because it is reasonable to expect it to be implemented sooner rather than later. Rather than rushing to introduce that offence with limited scope under the Bill, I ask that we do it properly as per the Law Commission recommendation.
Once the Law Commission recommendation is enacted in separate legislation, to which the Government have already agreed in principle, it will immediately flow through automatically to be incorporated into clause 52(4)(d), which relates to illegal content, and under clause 176, the Secretary of State may, subject to parliamentary approval, designate the new offence as a priority offence under schedule 7 via a statutory instrument. The purpose of amendment 142 can therefore be achieved through a SI.
The Government publicly entirely agree with the intention behind the proposed new clause 36, but I think the way to do this is to implement the full Law Commission offence as soon as we can and then, if appropriate, add it to schedule 7 by SI. The Government agree with the spirit of the hon. Gentleman’s proposal, but I believe that the Government already have a plan to do a more complete job to create the new offence.
John Nicolson
I have nothing to add and, having consulted my hon. Friend the Member for Aberdeen North, on the basis of the Minister’s assurances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Chris Philp
I beg to move amendment 116, in schedule 7, page 183, line 11, at end insert—
“1A An offence under section 13 of the Criminal Justice Act (Northern Ireland) 1966 (c. 20 (N.I.)) (assisting suicide etc).”
This amendment adds the specified offence to Schedule 7, with the effect that content amounting to that offence counts as priority illegal content.
Chris Philp
These amendments pick up a question asked by the hon. Member for Aberdeen North much earlier in our proceedings. In schedule 7 we set out the priority offences that exist in English and Welsh law. We have consulted the devolved Administrations in Scotland and Northern Ireland extensively, and I believe we have agreed with them a number of offences in Scottish and Northern Irish law that are broadly equivalent to the English and Welsh offences already in schedule 7. Basically, Government amendments 116 to 126 add those devolved offences to the schedule.
In future, if new Scottish or Northern Irish offences are created, the Secretary of State will be able to consult Scottish or Northern Irish Ministers and, by regulations, amend schedule 7 to add the new offences that may be appropriate if conceived by the devolved Parliament or Assembly in due course. That, I think, answers the question asked by the hon. Lady earlier in our proceedings. As I say, we consulted the devolved Administrations extensively and I hope that the Committee will assent readily to the amendments.
Alex Davies-Jones