Online Safety Bill

Baroness Fox of Buckley Excerpts

Committee stage
Thursday 25th May 2023 Lords Chamber

[Lord Allan of Hallam (LD)]

My Lords, I am pleased that the noble Lord, Lord Knight of Weymouth, has given us an opportunity to talk about transparency reports with these amendments, which are potentially a helpful addition to the Bill. Transparency is one of the huge benefits that the legislation may bring. One of the concerns that the public have and that politicians have always had with online platforms is that they appear to be a black box—you cannot see what is going on in them.

In the entire edifice that we are constructing in the Online Safety Bill, there are huge opportunities to change that. The platforms will have to do risk assessments —there are measures in the Bill to make sure that information about these is put out—and they will have to take active steps to mitigate any risks they find. Again, we may get directions and guidance from Ofcom that will explain to the public exactly what is expected of them. The final piece of the jigsaw is the transparency reports that show the outcomes—how a platform has performed and what it has done to meet its obligations in dealing with content and behaviour on its services.

For the record, I previously worked for one of the platforms, and I would have said that I was on the pro-transparency wing of the transparency party inside the company. I believed that it was in the platform’s interest: if you do not tell people what you are doing, they will make things up about you, and what they make up will generally be worse than what you are actually doing. So there are huge advantages to the platforms from being transparent.

The noble Lord, Lord Knight, has picked up on some important points in his Amendment 160B, which talks about making sure that the transparency report is not counterproductive by giving the bad guys information that they could use to ill effect. That is a valid point; it is often debated inside the platforms. Sometimes, I argued furiously with my colleagues in the platforms about why we should disclose information. They would ask, “What about the bad guys?” Sometimes I challenged that, but other times it would have been a genuine and accurate concern. The noble Lord mentioned things such as child sexual abuse material, and we have to recognise that the bad guys are incredibly devious and creative, and if you show them anything that they can use against you to get around your systems, they will try to do that. That is a genuine and valid concern.

The sort of thing that you might put into a transparency report is, for example, whether you have banned particular organisations. I would be in favour of indicating to the public that an organisation is banned, but you can see that the potential impact of that is that all the people you are concerned about would create another organisation with a different name and then get back on to your platform. We need to be alive to those kinds of concerns.

It is also relevant to Amendment 165 and the terms of service that the more granular and detailed your terms of service are, the better they are for public information, but there are opportunities to get around them. Again, we would have that argument internally. I would say, “If we are prohibiting specific hate speech terms, tell people that, and then they won’t use them”. For me, that would be a success, as they are not using those hate speech terms anymore, but, of course, they may then find alternative hate speech terms that they can use instead. You are facing that battle all the time. That is a genuine concern that I hope we will be able to debate. I hope that Ofcom will be able to mitigate that risk by discussing with platforms what these transparency reports should look like. In a sense, we are doing a risk assessment of the transparency report process.

Amendment 229 on effectiveness is really interesting. My experience was that if you did not have a transparency report, you were under huge pressure to produce one and that once you produced one, nobody was interested. For fear of embarrassing anyone in the Committee, I would be curious to know how many noble Lords participating in this debate have read the transparency reports already produced by Meta Platforms, Google and others. If they have not read them, they should not be embarrassed, because my experience was that I would talk to regulators and politicians about something they had asked me to come in to talk about, such as hate speech or child sexual abuse material, and I learned to print off the transparency report. I would go in and say, “Well, you know what we are doing; it’s in our transparency report”. They would ask, “What transparency report?”, and I would have to show them. So, having produced a transparency report, every time we published it, we would expect there to be public interest, but little use was made of it. That is not a reason not to do them—as I said, I am very much in favour of doing them—but, on their own, they may not be effective, and Amendment 229 touches on that.

I was trying to think of a collective noun for transparency reports and, seeing as they shed light, I think it may be a “chandelier”. Where we may get the real benefit is if Ofcom can produce a chandelier of transparency reports, taking all the information it gets from the different platforms, processing it and selecting the most relevant information—the reports are often too long for people to work their way through—so that it can enable comparisons. That is really good and it is quite good for the industry that people know that platform A did this, platform B did that, and platform C did something else. They will take note of that, compare with each other and want to get into the best category. It is also critical that Ofcom puts this into user-friendly language, and Ofcom has quite a good record of producing intelligible reports. In the context of Amendment 229, a review process is good. One of the things that might come out of that, thinking ahead, would be Ofcom’s role in producing meta transparency reports, the chandelier that will shed light on what the whole sector is doing.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, for once I want to be really positive. I am actually very positive about this whole group of amendments because more transparency is essential in what we are discussing. I especially like Amendment 165 from the noble Lord, Lord Stevenson of Balmacara, because it is around terms of service for user-to-user services and ensures that information can be sought on the scope as well as the application. This is important because so much has been put on user-to-user services as well as on terms of service. You need to know what is going on.

I want particularly to compliment Amendment 229 that says that transparency reports should be

“of sufficient quality to enable service users and researchers to make informed judgements”,

et cetera. That is a very elegant way in which to say that they should not be gobbledegook. If we are going to have them, they should be clear and of a quality that we can read. Obviously, we do not want them to be unreadable and full of jargon and legalistic language. I am hoping that that is the requirement.

--- Later in debate ---

I hope that is a helpful counterargument to the idea that platforms should automatically report material. However, I recognise that it leaves an open question. When people engage in that kind of behaviour online and it has serious real-world consequences, how do we make sure that they do not feel that it is consequence-free—that they understand that there are consequences? If they have broken the law, they should be prosecuted. There may be something in streamlining the process where a complainant goes to the police and the police are able to access the information they need, having first assessed that it is worth prosecuting and illegal, so that we make that loop work first before we head in the direction of having platforms report content en masse because they believe it may have violated laws where we are not at that most serious end of the spectrum.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, so few of us are involved in this discussion that we are now able to write each other’s speeches. I thank the noble Lord, Lord Allan of Hallam, for articulating some of my concerns, probably more elegantly than I will myself. I will focus on two amendments in this group; in fact, there are lots of interesting things, but I will focus on both the amendments from the noble Lord, Lord Bassam of Brighton.

On the issue of proactive steps to remove listings of knives for young people, I am so sympathetic to this because in a different area of my life I am pretty preoccupied with the problem of knife crime among young people. It really bothers me and I worry about how we tackle it. My concern of course is that the police should be working harder to solve that problem and that we cannot anticipate that the Bill will solve all social problems. There is a danger of removing the focus from law enforcement in a real-world problem, as though removing how you buy the knife is the issue. I am not convinced that that helps us.

I wanted to reflect on the kind of dilemmas I am having around this in relation to the story of Mizzy that is doing the rounds. He is the 18 year-old who has been posting his prank videos on TikTok and has caused quite a stir. People have seen him wandering into strangers’ homes uninvited, asking random people in the street if they want to die, running off with an elderly lady’s dog and making fun of Orthodox Jews—generally speaking, this 18 year-old is obnoxious. His TikTok videos have gone viral; everybody is discussing them.

This cruelty for kicks genre of filming yourself, showing your face full to the camera and so on, is certainly abhorrent but, as with the discussion about knife crime, I have noticed that some people outside this House are attempting to blame the technology for the problem, saying that the videos should have been removed earlier and that it is TikTok’s fault that we have this anti-social behaviour, whereas I think it is a much deeper, broader social problem to do with the erosion of adult authority and the reluctance of grown-ups to intervene clearly when people are behaving badly—that is my thesis. It is undoubtedly a police matter. The police seem to have taken ages to locate Mizzy. They eventually got him and charged him with very low offences, so he was on TV being interviewed the other evening, laughing at how weak the law was. Under the laws he was laughing at, he could freely walk into somebody’s house or be obnoxious and get away with it. He said, “We can do what we want”. That mockery throws up problems, but I do not necessarily think that the Bill is the way to solve it.

That leads me to my concerns about Amendment 268AA, because Mizzy was quoted in the Independent newspaper as saying:

“I’m a Black male doing these things and that’s why there’s such an uproar”.


I then went on a social media thread in which any criticism of Mizzy’s behaviour was described as racist harassment. That shows the complexity of what is being called for in Amendment 268AA, which wants platforms to take additional steps

“to combat incidents of online racially aggravated harassment”.

My worry is that we end up with not only Mizzy’s TikTok videos being removed but his critics being removed for racially harassing him, so we have to be very careful here.

Amendment 268AA goes further, because it wants tech companies to push for prosecution. I really think it is a dangerous step to encourage private companies to get tangled up in deciding what is criminal and so on. The noble Lord, Lord Allan, has exactly described my concerns, so I will not repeat them. Maybe I can probe this probing amendment. It also broadens the issue to all forms of harassment.

By the way, the amendment’s explanatory statement mentions the appalling racist abuse aimed at footballers and public figures, but one of the fascinating things was that when we number-crunched and went granular, we found that the majority of that racist abuse seemed to have been generated by bots, which takes us to the position of the noble Lord, Lord Knight, earlier: who would you prosecute in that instance? Bots not even based in the UK were generating what was assumed to be an outbreak of racist abuse among football fans in the UK, but the numbers did not equate to that. There were some people being racist and vile and some things that were generated in these bot farms.

To go back to the amendment, it goes on to broaden the issue out to

“other forms of harassment and threatening or abusive behaviour”.

Again, this is much more complicated in today’s climate, because those kinds of accusation can be deployed for bad faith reasons, particularly against public figures.

We have an example close to this House. I hope that Members have been following and will show solidarity over what has been happening to the noble Baroness, Lady Falkner of Margravine, who is chair of the Equality and Human Rights Commission and tasked with upholding the equality law but is at the centre of a vicious internal row after her officials filed a dossier of complaints about her. They have alleged that she is guilty of harassment. A KC is being brought in, there are 40 complaints and the whole thing is costing a fortune for both taxpayers and the noble Baroness herself.

It coincided with the noble Baroness, Lady Falkner, advising Ministers to update the definition of sex in the Equality Act 2010 to make clear that it refers to biological sex and producing official advice clarifying that trans women can be lawfully excluded from female-only spaces. We know how toxic that whole debate is.

Many of us feel that a lot of the accusations against the noble Baroness are ideologically and politically motivated vexatious complaints. I am distressed to read newspaper reports that say that she has been close to tears and has asked why anyone would go into public service. All this is for the crime of being a regulator upholding and clarifying the law. I hope it does not happen to the person who ends up regulating Ofcom—ending up close to tears as he stands accused of harassment, abusive behaviour and so on.

The point is that she is the one being accused of harassment. I have seen the vile abuse that she has received online. It is completely defamatory, vicious abuse and yet somehow it ends up being that, because she does not provide psychological safety at work and because of her views, she is accused of harassment and is the one in the firing line. I do not want us to introduce that kind of complexity—this is what I have been worried about throughout—into what is banned, removed or sent to the police as examples of harassment or hate crime.

I know that is not the intention of these amendments; it is the unintended consequences that I dread.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak chiefly to Amendment 262 in my name, although in speaking after the noble Baroness, Lady Fox, who suggested that the grown-ups should control anti-social behaviour by young people online, I note that there is a great deal of anti-social behaviour online from people of all ages. This is relevant to my Amendment 262.

It is a very simple amendment and would require the Secretary of State to consult with young people by means of an advisory board consisting of people aged 25 and under when reviewing the effectiveness and proportionality of this legislation. This amendment is a practical delivery of some of the discussion we had earlier in this Committee when we were talking about including the Convention on the Rights of the Child in the Bill. There is a commonly repeated phrase, “Nothing about us without us”. It was popularised by disability activists in the 1990s, although in doing a little research for this I found that it originates in Latin in Poland in the 15th century. So it is an idea that has been around for a long while and is seen as a democratic standard. It is perhaps a variation of the old “No taxation without representation”.

This suggestion of an advisory board for the Secretary of State is because we know from the discussion earlier on the children’s rights amendments that globally one in three people online is a child under the age of 18. This comes to the point of the construction of your Lordships’ House. Most of us are a very long way removed in experiences and age—some of us further than others. The people in this Committee thinking about a 12 year-old online now are parents, grandparents and great-grandparents. I venture to say that it is very likely that the Secretary of State is at least a generation older than many of the people who will be affected by its provisions.

This reflects something that I also did on the Health and Care Bill. To introduce an advisory panel of young people reporting directly to the Secretary of State would ensure a direct voice for legislation that particularly affects young people. We know that under-18s across the UK do not have any role in elections to the other place, although 16 and 17 year-olds have a role in other elections in Wales and Scotland now. This is really a simple, clear, democratic step. I suspect the Minister might be inclined to say, “We are going to talk to charities and adults who represent children”. I suggest that what we really need here is a direct voice being fed in.

I want to reflect on a recent comment piece in the Guardian that made a very interesting argument: that there cannot be, now or in the future, any such thing as a digital native. Think of the experience of someone 15 or 20 years ago; yes, they already had the internet but it was a very different beast to what we have now. If we refer back to some of the earlier groups, we were starting to ask what an internet with widespread so-called generative artificial intelligence would look like. That is an internet which is very different from even the one that a 20 year-old is experiencing now.

It is absolutely crucial that we have that direct voice coming in from young people with experience of what it is like. They are an expert on what it is like to be a 12 year-old, a 15 year-old or a 20 year-old now, in a way that no one else can possibly be, so that is my amendment.

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

I shall speak very briefly at this hour, just to clarify as much as anything. It seems important to me that there is a distinction between small platforms and large platforms, but my view has never been that if you are small, you have no potential harms, any more than if you are large, you are harmful. The exception should be the rule. We have to be careful of arbitrary categorisation of “small”. We have to decide who is going to be treated as though they are a large category 1 platform. I keep saying but stress again: do not assume that everybody agrees what significant risk of harm or hateful content is. It is such highly disputed political territory outside the online world and this House that we must recognise that it is not so straightforward.

I am very sympathetic, by the way, to the speeches made about eating disorders and other issues. I see that very clearly, but other categories of speech are disputed and argued over—I have given loads of examples. We end up where it is assumed that the manifestoes of mass shooters appear on these sites, but if you read any of those manifestoes of mass shooters, they will often be quoting from mainstream journalists in mainstream newspapers, the Bible and a whole range of things. Just because they are on 4Chan, or wherever, is not necessarily the problem; it is much more complicated.

I ask the Minister, and the proposers of the amendment, to some extent: would it not be straightforwardly the case that if there is a worry about a particular small platform, it might be treated differently—

[Lord Allan of Hallam (LD)]

I just want to react to the manifestos of mass shooters. While source material such the Bible is not in scope, I think the manifesto of a shooter is clear incitement to terrorism and any platform that is comfortable carrying that is problematic in my view, and I hope it would be in the noble Baroness’s view as well.

[Baroness Fox of Buckley (Non-Afl)]

I was suggesting that we have a bigger problem than it appearing on a small site. It quotes from mainstream media, but it ends up being broadly disseminated and not because it is on a small site. I am not advocating that we all go round carrying the manifestos of mass shooters and legitimising them. I was more making the point that it can be complicated. Would not the solution be that you can make appeals that a small site is treated differently? That is the way we deal with harmful material in general and the way we have dealt with, for example, RT as press without compromising on press freedom. That is the kind of point I am trying to make.

I understand lots of concerns but I do not want us to get into a situation where we destroy the potential of all smaller platforms—many of them doing huge amounts of social good, part of civil society and all the rest of it—by treating them as though they are large platforms. They just will not have the resources to survive, that is all my point is.

[Lord Clement-Jones (LD)]

My Lords, I am going to be extremely brief given the extremely compelling way that these amendments have been introduced by the noble Baroness, Lady Morgan, and the noble Lord, Lord Griffiths, and contributed to by the noble Baroness, Lady Bull. I thank her for her comments about my noble friend Lady Parminter. I am sure she would have wanted to be here and would have made a very valuable contribution as she did the other day on exactly this subject.

As the noble Baroness, Lady Fox, has illustrated, we have a very different view of risk across this Committee and we are back, in a sense, into that whole area of risk. I just wanted to say that I think we are again being brought back to the very wise words of the Joint Committee. It may sound like special pleading. We keep coming back to this, and the noble Lord, Lord Stevenson, and I are the last people standing on a Thursday afternoon.

We took a lot of evidence in this particular area. We took the trouble to go to Brussels and had a very useful discussion with the Centre on Regulation in Europe and Dr Sally Broughton Micova. We heard a lot about interconnectedness between some of these smaller services and the impact in terms of amplification across other social media sites.

We heard in the UK from some of the larger services about their concerns about the activities of smaller services. You might say “They would say that, wouldn’t they?” but they were pretty convincing. We heard from HOPE not Hate, the Antisemitism Policy Trust and Stonewall, stressing the role of alternative services.

Of course, we know that these amendments today—some of them sponsored by the Mental Health Foundation, as the noble Lord, Lord Griffiths, said, and Samaritans—have a very important provenance. They recognise that these are big problems. I hope that the Minister will think strongly about this. The injunction from the noble Lord, Lord Allan, to consider how all this is going to work in practice is very important. I very much hope that when we come to consider how this works in practical terms that the Minister will think very seriously about the way in which risk is to the fore— the more nuanced approach that we suggested—and the whole way that profiling by Ofcom will apply. I think that is going to be extremely important as well. I do not think we have yet got to the right place in the Bill which deals with these risky sites. I very much hope that the Minister will consider this in the quite long period between now and when we next get together.

Online Safety Bill

Baroness Fox of Buckley Excerpts

Committee stage
Thursday 25th May 2023 Lords Chamber

Amendment 263 would complete this systemic implementation of risk assessment by ensuring that future reviews of the regime by the Secretary of State include a broad assessment of the harms arising from regulated services, not just regulated content. This amendment would ensure ongoing consideration of risk management, including whether the regime needs expanding or contracting. I urge the Minister to support Amendments 195, 239 and 263.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, like others, I thank the Whips for intervening to protect children from hearing details that are not appropriate for the young. I have to say that I was quite relieved because I was rather squirming myself. Over the last two days of Committee, I have been exposed to more violent pornographic imagery than any adult, never mind a child, should be exposed to. I think we can recognise that this is certainly a challenging time for us.

I do not want any of the comments I will now make to be seen as minimising understanding of augmented reality, AI, the metaverse and so on, as detailed so vividly by the noble Baronesses, Lady Harding and Lady Finlay, in relation to child safety. However, I have some concerns about this group, in terms of proportionality and unintended outcomes.

Amendment 239, in the names of the right reverend Prelate the Bishop of Oxford, the noble Lord, Lord Clement-Jones, and the noble Viscount, Lord Colville of Culross, sums up some of my concerns about a focus on future-proofing. This amendment would require Ofcom to produce reports about future risks, which sounds like a common-sense demand. But my question is about us overly focusing on risk and never on opportunities. There is a danger that the Bill will end up recommending that we see these new technologies only in a negative way, and that we in fact give more powers to expand the scope for harmful content, in a way that stifles speech.

Beyond the Bill, I am more generally worried about what seems to be becoming a moral panic about AI. The precautionary principle is being adopted, which could mean stifling innovation at source and preventing the development of great technologies that could be of huge benefit to humanity. The over-focus on the dangers of AI and augmented reality could mean that we ignore the potential large benefits. For example, if we have AI, everyone could have an immediately responsive GP in their pocket—goodness knows that, for those trying to get an appointment, that could be of great use and benefit. It could mean that students have an expert tutor in every subject, just one message away. The noble Baroness, Lady Finlay, spoke about the fantastic medical breakthroughs that augmented reality can bring to handling neurological damage. Last night, I cheered when I saw how someone who has never been able to walk now can, through those kinds of technologies. I thought, “Isn’t this a brilliant thing?” So all I am suggesting is that we have to be careful that we do not see these new technologies only as tools for the most perverted form of activity among a small minority of individuals.

I note, with some irony, that fewer qualms were expressed by noble Lords about the use of AI when it was proposed to scan and detect speech or images in encrypted messages. As I argued at the time, this would be a threat to WhatsApp, Signal and so on. Clauses 110 and 124 have us using AI as a blunt proactive technology of surveillance, despite the high risks of inaccuracy, error and false flags. But there was great enthusiasm for AI then, when it was having an impact on individuals’ freedom of expression—yet, here, all we hear are the negatives. So we need to be balanced.

I am also concerned about Amendment 125, which illustrates the problem of seeing innovation only as a threat to safety and a potential problem. For example, if the Bill considers AI-generated content to be user-generated content, only large technology companies will have the resources—lawyers and engineers—necessary to proceed while avoiding crippling liability.

In practice, UK users risk being blocked out from new technologies if we are not careful about how we regulate here. For example, users in the European Union currently cannot access Google Bard AI assistant because of GDPR regulations. That would be a great loss because Google Bard AI is potentially a great gain. Despite the challenges of the likes of ChatGPT and Bard AI that we keep reading about, with people panicking that this will lead to wide-scale cheating in education and so on, this has huge potential as a beneficial technology, as I said.

I have mentioned that one of the unintended consequences—it would be unintended—of the whole Bill could be that the UK becomes a hostile environment for digital investment and innovation. So start-ups that have been invested in—like DeepMind, a Google-owned and UK-based AI company—could be forced to leave the UK, doing huge damage to the UK’s digital sector. How can the UK be a science and technology superpower if we end up endorsing anti-innovation, anti-progress and anti-business measures by being overly risk averse?

I have the same concerns about Amendment 286, which requires periodic reviews of new technology content environments such as the metaverse and other virtual augmented reality settings. I worry that it will not be attractive for technology companies to confidently invest in new technologies if there is this constant threat of new regulations and new problems on the horizon.

I have a query that mainly relates to Amendment 125 but that is also more general. If virtual augmented reality actually involves user-to-user interaction, like in the metaverse, is it not already covered in the Bill? Why do we need to add it in? The noble Baroness, Lady Harding, said that it has got to the point where we are not able to distinguish fake from real, and augmented reality from reality. But she concludes that that means that we should treat fake as real, which seems to me to rather muddy the waters and make it a fait accompli. I personally—

[Baroness Harding of Winscombe (Con)]

I am sorry to interrupt, but I will make a clarification; the noble Baroness is misinterpreting what I said. I was actually quoting the godfather of AI and his concerns that we are fast approaching a space where it will be impossible—I did not say that it currently is—to distinguish between a real child being abused and a machine learning-generated image of a child being abused. So, first, I was quoting the words of the godfather of AI, rather than my own, and, secondly, he was looking forward—only months, not decades—to a very real and perceived threat.

[Baroness Fox of Buckley (Non-Afl)]

I personally think that it is pessimistic view of the future to suggest that humanity cannot rise to the task of being able to distinguish between deep fakes and real images. Organising all our lives, laws and liberties around the deviant predilections of a minority of sexual offenders on the basis that none of us will be able to tell the difference in the future, when it comes to that kind of activity, is rather dangerous for freedom and innovation.

[Lord Russell of Liverpool (CB)]

My Lords, I will speak very briefly. I could disagree with much of what the noble Baroness just said, but I do not need to go there.

What particularly resonates with me today is that, since I first entered your Lordships’ House at the tender age of 28 in 1981, this is the first time I can ever remember us having to rein back what we are discussing because of the presence of young people in the Public Gallery. I reflect on that, because it brings home the gravity of what we are talking about and its prevalence; we cannot run away or hide from it.

I will ask the Minister about the International Regulatory Cooperation for a Global Britain: Government Response to the OECD Review of International Regulatory Cooperation of the UK, published 2 September 2020. He will not thank me for that, because I am sure that he is already familiar and word-perfect with this particular document, which was pulled together by his noble friend, the noble Lord, Lord Callanan. I raise this because, to think that we can in any way, shape or form, with this piece of legislation, stem the tide of what is happening in the online world—which is happening internationally on a global basis and at a global level—by trying to create regulatory and legal borders around our benighted island, is just for the fairies. It is not going to happen.

Can the Minister tell us about the degree to which, at an international level, we are proactively talking to, and learning from, other regulators in different jurisdictions, which are battling exactly the same things that we are? To concentrate the Minister’s mind, I will point out what the noble Lord, Lord Callanan, committed the Government to doing nearly three years ago. First, in relation to international regulatory co-operation, the Government committed to

“developing a whole-of-government IRC strategy, which sets out the policies, tools and respective roles of different departments and regulators in facilitating this; … developing specific tools and guidance to policy makers and regulators on how to conduct IRC; and … establishing networks to convene international policy professionals from across government and regulators to share experience and best practice on IRC”.

I am sure that, between now and when he responds, he will be given a detailed answer by the Bill team, so that he can tell us exactly where the Government, his department and Ofcom are in carrying out the commitments of the noble Lord, Lord Callanan.

Online Safety Bill

Baroness Fox of Buckley Excerpts

Committee stage
Tuesday 23rd May 2023 Lords Chamber

[Baroness Grey-Thompson (CB)]

My Lords, I speak in favour of Amendments 124, 126 and 227 to which my name is attached. I will reserve my comments mostly to the Bill’s loophole on newspaper comment sections.

These forums would qualify as social media platforms under the Bill’s definition were it not for a special exemption in Clause 49. They have been found to host some of the most appalling and despicable content online. I will paraphrase some examples so as not to subject the Committee to the specific language used, but they include anti-Semitic slurs in comments appearing under articles covering a violent attack on a synagogue; Holocaust denial; and speculation that Covid was created and spread by a secretive global cabal of powerful individuals who control the world’s leaders like puppets.

Some of the worst abuse is reserved for women in public life, which I and others in your Lordships’ House have personally experienced. In an article about a female leader, comments included that she should be struck down or executed by the SAS. Others commented graphically on her appearance and made disturbing sexual remarks. Another woman, Professor Fowler—who the noble Lord, Lord Clement-Jones, has already discussed —was described as having a sick mind and a mental disorder; one comment implied that a noose should be prepared for her. There are many more examples.

Comment sections are in too many cases badly regulated and dangerous places for members of the public. The exemption for them is unwarranted. Specifically, it protects any social media platform where users make comments in response to what the Bill describes as “provider content”. In this case, that means comments posted in response to articles published by the newspaper. This is materially no different from user exchanges of any other kind and should be covered just the same.

The Government have previously argued that there should be a distinction between newspaper comment sections and other platforms, in that other platforms allow for virality because posts that are liked and retweeted do better than the others. But this is exactly the same for many modern comment sections. Lots of these include functionality to upvote certain comments, which can then rise to the top of the comment section on that article.

There are estimated to be around 15 million people on Twitter in the UK—I am one of them—but more than twice that number read newspaper websites every month. These comment sections are social media platforms with the same power, reach and capacity to cause harm as the US giants. We should not treat them any differently on account of the fact that they are based out of Fleet Street rather than Silicon Valley.

There are some concerns that the Bill’s requirements would put an undue burden on small organisations running comment sections, so this amendment would apply only to organisations with an annual turnover in excess of £100 million. This would ensure that only the largest titles, which can surely afford it, are required to regulate their comment sections. Amendment 124 would close the comment section loophole, and I urge the Government to act on it.

It is a great shame that, due to the lateness of the hour, my noble friend Lady Hollins is unable to be here. She would strongly support Amendment 126 on several points but specifically wanted to talk about how the exemption creates double standards between how the public and news publishers are treated, and puts platforms and Ofcom in an impossible situation over whether newspapers meet vague criteria to access exemptions.

I also support Amendments 126 and 227, which would help protect the public from extremist and other dangerous websites by preventing them accessing the separate media exemption. In all these matters, we must not let overbroad exemptions and loopholes undermine what good work this Bill could do.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, while considering this group of amendments, a comment by Index on Censorship came to mind. Critical of aspects of the Bill, it worried out loud about whether this legislation

“will reverse the famous maxim ‘publish and be damned’, to become, ‘consider the consequences of all speech, or be damned’”.

In that context, I am very grateful—relieved at least— that the freedom of the press is given due regard and protections in the Bill. Freedom of the press is one practical form in which freedom of expression exists and is invaluable in a democracy. It is so crucial that it has been at the centre of democratic struggles in this very Parliament for more than five centuries—ever since the first printing press meant that the masses could gain access to the written word. It fuelled the pamphleteers of the English Civil War. It made a hero of MP John Wilkes in the 18th century, his victory giving the press freedom to report on the goings-on of the great and the good, to muckrake and to dig the dirt; long may that continue.

So I welcome that news publishers’ content on their own websites is not in scope of the legislation; that if platforms take down or restrict access to trusted news sources, they will face significant sanctions; that platforms must notify news publishers if they want to take down their content and, if the publisher disputes that, the platform must not remove it until the dispute is resolved; and that Ofcom must also review the efficacy of how well the platforms are protecting news.

I say “Hurrah!” to all that. If only the Bill treated all content with such a liberal and proportionate approach, I would not be standing up and speaking quite so much. But on the press specifically, I strongly oppose Amendments 124 and 126—as well as Amendment 127, now that it has been explained and I understand it; I did not quite before. Amendment 124 would mean that the comment section of the largest newspaper websites were subject to the regulation in the Bill.

It is important to note—as has been explained—that user comments are already regulated by IPSO, the Independent Press Standards Organisation, and that individual publishers have strong content moderation system policies and the editor is ultimately liable for comments. That is the key issue here. This is about protecting editorial independence from state interference. Amendment 124 does the opposite. That amendment would also restrict the ability of UK citizens to discuss and engage with publishers’ content.

It is part of a lively and vital public square to be free to debate and discuss articles in newspapers. We have heard some pretty graphic and grim descriptions from the noble Baroness, Lady Grey-Thompson, and the noble Lord, Lord Clement-Jones, about those comments; but for me, ironically, the comment section in newspapers is a form of accountability of the press to readers and the audience. Although the descriptions were grim, much of that section is intelligent, well-informed and interesting feedback. I will talk a little about hate afterwards.

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[Lord Parkinson of Whitley Bay (Con)]

I am mindful of the examples the noble Lord gave in his speech. Looking at some of the provisions set out in subsection (2) about a body being

“subject to a standards code”

or having

“policies and procedures for handling and resolving complaints”,

I think on first response that those examples he gave would be covered. But I will certainly take on board the comments he made and those the noble Baroness, Lady Gohir, made as well and reflect on them. I hope—

[Baroness Fox of Buckley (Non-Afl)]

On a final point of clarification, in contrast, I think the exemption may be too narrow, not too broad. With the emergence of blogs and different kinds of news organisations—I think the noble Lord, Lord Allan, described well the complexity of what we have—and some of the grimmer, grosser examples of people who might play the system, does the Minister acknowledge that that might be dealt with by the kind of exemptions that have been used for RT? When somebody is really an extremist representative of, I do not know, ISIS, pretending to be a media organisation, the sensible thing to do would be to exempt them, rather than to overtighten the exemptions, so that new, burgeoning, widely read online publications can have press freedom protection.

[Lord Parkinson of Whitley Bay (Con)]

I will certainly take on board the points the noble Baroness raises. Hearing representations in both directions on the point would, on first consideration, reassure me that we have it right, but I will certainly take on board the points which the noble Baroness, the noble Lord and others have raised in our debate on this. As the noble Lord, Lord Allan, suggests, I will take the opportunity to discuss it with Ofcom, as we will do on many of the issues which we are discussing in this Committee, to make sure that its views are taken on board before we return to these and other issues on Report.

Online Safety Bill

Baroness Fox of Buckley Excerpts

Committee stage
Tuesday 23rd May 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I broadly support all these amendments in spirit, since, as we have heard, they tackle excessive levels of influence that any Secretary of State is awarding themselves to shape the strategic priorities and codes of conduct of Ofcom. I will speak to Amendments 254 and 260, tabled by the noble Lord, Lord Moylan, who I am glad to see in his place. He will see in Hansard that he was about to be much missed. I cannot do him credit, but I will carry on regardless because I support his amendments.

The main difference between Amendment 254 and other similar amendments is that it requires that any guidance issued to Ofcom—under Clause 157, for example—is

“approved by resolution of each House of Parliament”

rather than by committees. However, the spirit of it, which is to remove the Secretary of State’s power to give wide-ranging guidance or instructions about Ofcom’s functions, and the concerns that we have about that, is broadly in line with everything else we have heard.

It is important to ask whether it is appropriate for our right to freedom of expression to be curtailed by secondary legislation, which cannot be amended, which has little parliamentary oversight and on which challenges are very often reduced to nothing more than rhetorical whinges in this House. That would mean that the power exercised by the Secretary of State would bypass the full democratic process.

In fact, it also weakens our capacity to hold Ofcom to account. One thing that has become apparent throughout our Committee deliberations is that—as I think the noble Baroness, Lady Stowell, indicated—Ofcom will be an uber-regulator. It is itself very powerful, as I have raised, with respect to potentially policing and controlling what UK citizens see, read and have access to online, what they are allowed to search, private messaging and so on. In some ways, I want Ofcom to have much more scrutiny and be accountable to Parliament, elected politicians and the public realm. But that is not the same as saying that Ofcom should be accountable and answerable to the Secretary of State; that would be a whole different ball game. It could be said that the Secretary of State will be elected, but we know that that is a sleight of hand.

I want more accountability and scrutiny of Ofcom by individual users of online services; we even talked about that, the other day, in relation to complaints. I want more democratic scrutiny, but the Bill does the opposite of that by allowing the Government a huge amount of executive power to shape the proposed system of online speech moderation and even influence political discourse in the public square.

I want to move on to that issue. Under the Bill, the Secretary of State will have the power to set Ofcom’s strategic priorities, direct Ofcom to modify its code of practice through secondary legislation, set criteria for platform categorisation and designate priority illegal offences. They will be able to change codes of practice for “reasons of public policy”, which is as vague a phrase as you will ever get. I fear that, frankly, that level of discretion is likely to lead to a highly politicised and—my dread—censorship-heavy approach to regulation.

The Secretary of State could come under extreme pressure to respond to each individual concerning case of digital content—whatever happens to be in the news this week—with an ever-expanding list of areas to be dealt with. I dread that this will inevitably be exploited by highly political lobbyists and organisations, who will say, “You must act on this. This is hate speech. You’ve got to do something about this”. That is a completely arbitrary way to behave.

According to the Bill, Ofcom has no choice but to comply, and that obviously leads to the dangers of politicisation. I do not think it is scaremongering to say that this is politicisation and could compromise the independence of Ofcom. The Secretary of State’s power of direction could mean that the Government are given the ability to shape the permissibility of categories of online content, based on the political mood of the day, and the political whims of a specific Secretary of State to satisfy a short-term moral panic on a particular issue.

One question for the Minister, and the Government, is: should you ever create powers that you would not want to see your political opponents exercising? The Secretary of State today will not always be the Secretary of State tomorrow; they will not always be in the same image. Awarding such overwhelming powers, and the potential politicising of policing speech, might feel comfortable for the Government today; it might be less comfortable when you look at the way that some people view, for example, the tenets of Conservatism.

In recent weeks, since a “National Conservatism” conference was held up the road, I have heard members of opposition parties describe the contents of Conservatism as “Trumpist”, “far-right” and “fascist” hate speech. I am worried—on behalf of the Government —that some of those people might end up as a Secretary of State and it could all blow up in their face as it were, metaphorically.

In all seriousness, because I am really not interested in the fate of either the Opposition or the Government in terms of their parties, I am trying to say that it is too arbitrary. In a situation where we have such weak commitments to freedom of conscience, thought or speech in this Bill, I really do not want to give the Secretary of State the power to broaden out the targets that might be victim to it.

Finally—and I apologise to the noble Lord, Lord Moylan, who would have been much more professional, specific and hard-hitting on his amendment—from what I have heard, I hope that all the tablers of the amendments from all parties might well have got together by Report and come up with satisfactory amendments that will deal with this. I think we all agree, for once, that something needs to be done to curtail power. I look forward to supporting that later in the process.

Online Safety Bill

Baroness Fox of Buckley Excerpts

Committee stage
Tuesday 16th May 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I see my amendments as being probing. I am very keen on having a robust complaints system, including for individuals, and am open to the argument about an ombudsman. I am listening very carefully to the way that that has been framed. I tabled these amendments because while I know we need a robust complaints system—and I think that Ofcom might have a role in that—I would want that complaints system to be simple and as straightforward as possible. We certainly need somewhere that you can complain.

Ofcom will arguably be the most powerful regulator in the UK, effectively in charge of policing a key element of democracy: the online public square. Of course, one question one might ask is: how do you complain about Ofcom in the middle of it all? Ironically, an ombudsman might be somewhere where you would have to field more than just complaints about the tech companies.

I have suggested completely removing Clauses 150 to 152 from the Bill because of my reservations, beyond this Bill and in general, about a super-complaints system within the regulatory framework, which could be very unhelpful. I might be wrong, and I am open to correction if I have misunderstood, but the Bill’s notion of an eligible entity who will be allowed to make this complaint to Ofcom seems, at the moment, to be appointed on criteria set only by the Secretary of State. That is a serious problem. There is a danger that the Secretary of State could be accused of partiality or politicisation. We therefore have to think carefully about that.

I also object to the idea that certain organisations are anointed with extra legitimacy as super-complaints bodies. We have seen this more broadly. You will often hear Ministers say, in relation to consultations, “We’ve consulted stakeholders and civil society organisations”, when they are actually often referring to lobbying organisations with interests. There is a free-for-all for NGOs and interest groups. We think of a lot of charities as very positive but they are not necessarily neutral. I just wanted to query that.

There is also a danger that organisations will end up speaking on behalf of all women, all children or all Muslims. That is something we need to be careful about in a time of identity politics. We have seen it happen offline with self-appointed community leaders, but say, for example, there is a situation where there is a demand by a super-complainant to remove a particular piece of content that is considered to be harmful, such as an image of the Prophet Muhammad. These are areas where we have to admit that if people then say, “We speak on behalf of”, they will cause problems.

Although charities historically have had huge credibility, as I said, we know from some of the scandals that have affected charities recently that they are not always the saviours. They are certainly not immune from corruption, political bias, political disputes and so on.

I suppose my biggest concern is that the function in the Bill is not open to all members of the public. That seems to be a problem. Therefore, we are saying that certain groups and individuals will have a greater degree of influence over the permissibility of speech than others. There are some people who have understood these clauses to mean that it would act like a class action—that if enough people are complaining, it must be a problem. But, as noble Lords will know from their inboxes, sometimes one is inundated with emails and it does not necessarily show a righteous cause. I do not know about anyone else who has been involved in this Bill, but I have had exactly the same cut-and-paste email about violence against women and girls hundreds of times. That usually means a well-organised, sometimes well-funded, mass mobilisation. I have no objection, but just because you get lots of emails it does not mean that it is a good complaint. If you get only one important email complaint that is written by an individual, surely you should respect that minority view.

Is it not interesting that the assumption of speakers so far has been that the complaints will always be that harms have not been removed or taken notice of? I was grateful when the noble Baroness, Lady Kidron, mentioned the Free Speech Union and recognised, as I envisage, that many of the complaints will be about content having been removed—they will be free speech complaints. Often, in that instance, it will be an individual whose content has been removed. I cannot see how the phrasing of the Bill helps us in that. Although I am a great supporter of the Free Speech Union, I do not want it to represent or act on behalf of, say, Index on Censorship or even an individual who simply thinks that their content should not be removed—and who is no less valid than an official organisation, however much I admire it.

I certainly do not want individual voices to be marginalised, which I fear the Bill presently does in relation to complaints. I am not sure about an ombudsman; I am always wary of creating yet another more powerful body in the land because of the danger of over-bureaucratisation.

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[Viscount Camrose (Con)]

I am happy to meet and discuss this. We are expanding what they are able to receive today under the existing arrangements. I am happy to meet any noble Lords who wish to take this forward to help them understand this—that is probably best.

Amendments 287 and 289 from the noble Baroness, Lady Fox of Buckley, seek to remove the provision for super-complaints from the Bill. The super-complaints mechanism is an important part of the Bill’s overall redress mechanisms. It will enable entities to raise concerns with Ofcom about systemic issues in relation to regulated services, which Ofcom will be required to respond to. This includes concerns about the features of services or the conduct of providers creating a risk of significant harm to users or the public, as well as concerns about significant adverse impacts on the right to freedom of expression.

On who can make super-complaints, any organisation that meets the eligibility criteria set out in secondary legislation will be able to submit a super-complaint to Ofcom. Organisations will be required to submit evidence to Ofcom, setting out how they meet these criteria. Using this evidence, Ofcom will assess organisations against the criteria to ensure that they meet them. The assessment of evidence will be fair and objective, and the criteria will be intentionally strict to ensure that super-complaints focus on systemic issues and that the regulator is not overwhelmed by the number it receives.

[Baroness Fox of Buckley (Non-Afl)]

To clarify and link up the two parts of this discussion, can the Minister perhaps reflect, when the meeting is being organised, on the fact that the organisations and the basis on which they can complain will be decided by secondary legislation? So we do not know which organisations or what the remit is, and we cannot assess how effective that will be. We know that the super-complainants will not want to overwhelm Ofcom, so things will be bundled into that. Individuals could be excluded from the super-complaints system in the way that I indicated, because super-complaints will not represent everyone, or even minority views; in other words, there is a gap here now. I want that bit gone, but that does not mean that we do not need a robust complaints system. Before Report at least—in the meetings in between—the Government need to advise on how you complain if something goes wrong. At the moment, the British public have no way to complain at all, unless someone sneaks it through in secondary legislation. This is not helpful.

[Viscount Camrose (Con)]

As I said, we are happy to consider individual complaints and super-complaints further.

--- Later in debate ---

The Bill is an opportunity to improve all of this. There are pieces of very good practice and, clearly, areas where not enough is being done and too much very harmful content—particularly content that is posted with the express intent of causing harm—is being allowed to circulate. I hope that, through the legislation and by getting these protocols right, we can get to the point where we are both preventing lower-risk people moving into a higher-risk category and enabling people already in a high-risk category to get the help, support and advice that they need. Nowadays, online is often the primary tool that could benefit them.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, as usual, the noble Lord, Lord Allan of Hallam, has explained with some nuance the trickiness of this area, which at first sight appears obvious—black and white—but is not quite that. I want to explore some of these things.

Many decades ago, I ran a drop-in centre for the recovering mentally ill. I remember my shock the first time that I came across a group of young women who had completely cut themselves up. It was a world that I did not know but, at that time, a very small world—a very minor but serious problem in society. Decades later, going around doing lots of talks, particularly in girls’ schools where I am invited to speak, I suddenly discovered that whole swathes of young women were doing something that had been considered a mental health problem, often hidden away. Suddenly, people were talking about a social contagion of self-harm happening in the school. Similarly, there were discussions about eating disorders being not just an individual mental health problem but something that kind of grew within a group.

Now we have the situation with suicide sites, which are phenomenal at exploiting those vulnerabilities. This is undoubtedly a social problem of some magnitude. I do not in any way want to minimise it, but I am not sure exactly how legislation can resolve it or whether it will, even though I agree that it could do certain things.

Some of the problems that we have, which have already been alluded to, really came home to me when I read about Instagram bringing in some rules on self-harm material, which ended up with the removal of posts by survivors of self-harm discussing their illness. I read a story in the Coventry Evening Telegraph—I was always interested because I ran the drop-in centre for the recovering mentally ill in Coventry—where a young woman had some photographs taken down from Instagram because they contained self-harm images of her scars. The young woman who had suffered these problems, Marie from Tile Hill, wanted to share pictures of her scars with other young people because she felt that they would help others recover. She had got over it and was basically saying that the scars were healing. In other words, it was a kind of self-help group for users online, yet it was taken down.

It is my usual problem: this looks to be a clear-cut case, yet the complexities can lead to problems of censorship of a sort. I was really pleased that the noble Baroness, Lady Finlay, stressed the point about definitions. Search engines such as Google have certainly raised the problem of a concern, or worry, that people looking for help—or even looking to write an essay on suicide, assisted suicide or whatever—will end up not being able to find appropriate material.

I also want to ask a slightly different question. Who decides which self-harms are in our definitions and what is the contagion? When I visit schools now, there is a new social contagion in town, I am afraid to say, which is that of gender dysphoria. In the polling for a newly published report Show, Tell and Leave Nothing to the Imagination by Jo-Anne Nadler, which has just come out, half of the young people interviewed said that they knew someone at their school who wanted to change gender or had already, while one in 10 said that they wanted to change their gender.

That is just an observation; your Lordships might ask what it has to do with the Bill. But these are actually problem areas that are being affirmed by educational organisations and charities, by which I mean that organisations that have often worked with government have been consulted as stakeholders. They have recommended to young women where online to purchase chest binders, which will stop them developing, or where and how to use puberty blockers. Eventually, they are affirming double mastectomies or castration. By the way, this is of course all over social media, because once you start to search on it, TikTok is rife with it. Algorithmically, we are reminded all the time to think about systems: once you have had a look at it, it is everywhere. My point is that this is affirmed socially.

Imagine a situation whereby, in society offline, some young woman who has an eating disorder and weighs 4 stone comes to you and says “Look, I’m so fat”. If you said, “Yes, of course you’re fat—I’ll help you slim”, we would think it was terrible. When that happens online, crudely and sometimes cruelly, we want to tackle it here. If some young woman came to you and said, “I want to self-harm; I feel so miserable that I want to cut myself”, and you started recommending blades, we would think it was atrocious behaviour. In some ways, that is what is happening online and that is where I have every sympathy with these amendments. Yet when it comes to gender dysphoria, which actually means encouraging self-harm, because it is a cultural phenomenon that is popular it does not count.

In some ways, I could be arguing that we should future-proof this legislation by including those self-harms in the definition put forward by the amendments in this group. However, I raise it more to indicate that, as with all definitions, it is not quite as easy as one would think. I appreciate that a number of noble Lords, and others engaged in this discussion, might think that I am merely exhibiting prejudice rather than any genuine compassion or concern for those young people. I would note that if noble Lords want to see a rising group of people who are suicidal and feel that their life is really not worth living, search out the work being done on detransitioners who realise too late that that affirmation by adults has been a disaster for them.

On the amendments suggesting another advisory committee with experts to advise Ofcom on how we regulate such harms, I ask that we are at least cautious about which experts. To mention one of the expert bodies, Mermaids has become controversial and has actually been advocating some of those self-harms, in my opinion. It is now subject to a Charity Commission investigation but has been on bodies such as this advising about young people. I would not think that appropriate, so I just ask that some consideration is given to which experts would be on such bodies.

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[Baroness Stowell of Beeston (Con)]

My Lords, I start by commending my noble friend Lady Morgan on her clear introduction to this group of amendments. I also commend the noble Baroness, Lady Kidron, on her powerful speech.

From those who have spoken so far, we have a clear picture of the widespread nature of some of the abuse and offences that women experience when they go online. I note from what my noble friend Lady Morgan said that there is widespread support from a range of organisations outside the Committee for this group of amendments. She also made an important and powerful point about the potential chilling effect of this kind of activity on women, including women in public life, being able to exercise their right to freedom of expression.

I feel it is important for me to make it clear that—this is an obvious thing—I very much support tough legal and criminal sanctions against any perpetrator of violence or sexual abuse against women. I really do understand and support this, and hear the scale of the problem that is being outlined in this group of amendments.

Mine is a dissenting voice, in that I am not persuaded by the proposed solution to the problem that has been described. I will not take up a lot of the Committee’s time, but any noble Lords who were in the House when we were discussing a group of amendments on another piece of legislation earlier this year may remember that I spoke against making misogyny a hate crime. The reason why I did that then is similar, in that I feel somewhat nervous about introducing a code of conduct which is directly relevant to women. I do not like the idea of trying to address some of these serious problems by separating women from men. Although I know it is not the intention of a code such as this or any such measures, I feel that it perpetuates a sense of division between men and women. I just do not like the idea that we live in a society where we try to address problems by isolating or categorising ourselves into different groups of people, emphasising the sense of weakness and being victims of any kind of attack or offence from another group, and assuming that everybody who is in the other group will be a perpetrator of some kind of attack, criticism or violence against us.

My view is that, in a world where we see some of this serious activity happening, we should do more to support young men and boys to understand the proper expectations of them. When we get to the groups of amendments on pornography and what more we can do to prevent children’s access to it, I will be much more sympathetic. Forgive me if this sounds like motherhood and apple pie, but I want us to try to generate a society where basic standards of behaviour and social norms are shared between men and women, young and old. I lament how so much of this has broken down, and a lot of the problems we see in society are the fault of political and—dare I say it?—religious leaders not doing more to promote some of those social norms in the past. As I said, I do not want us to respond to the situation we are in by perpetuating more divisions.

I look forward to hearing what my noble friend the Minister has to say, but I am nervous about the solution proposed in the amendments.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, it gives me great pleasure to follow the noble Baroness, Lady Stowell of Beeston, not least because she became a dissenting voice, and I was dreading that I might be the only one.

First, I think it important that we establish that those of us who have spent decades fighting violence against women and girls are not complacent about it. The question is whether the physical violence we describe in the Bill is the same as the abuse being described in the amendments. I worry about conflating online incivility, abuse and vile things said with physical violence, as is sometimes done.

I note that Refuge, an organisation I have a great deal of respect for, suggested that the user empowerment duties that opted to place the burden on women users to filter out their own online experience was the same as asking women to take control of their own safety and protect themselves offline from violence. I thought that was unfair, because user empowerment duties and deciding what you filter out can be women using their agency.

Online Safety Bill

Baroness Fox of Buckley Excerpts

Committee stage
Thursday 11th May 2023 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I thank the Minister for his very clear and precise introduction of these amendments. As the noble Lord, Lord Clement-Jones, said, we will return to some of the underlying issues in future debates. It may be that this is just an aperitif to give us a chance to get our minds around these things, as the noble Baroness, Lady Stowell, said.

It is sometimes a bit difficult to understand exactly what issue is being addressed by some of these amendments. Even trying to say them got us into a bit of trouble. I think I follow the logic of where we are in the amendments that deal with the difference between adult material and children’s material, but it would benefit us all if the Minister could repeat it, perhaps a little slower this time, and we will see if we can agree that that is the way forward.

Broadly speaking, we accept the arrangements. They clarify the issues under which the takedown and appeal mechanisms will work. They are interfacing with the question of how the Bill deals with legal but harmful material, particularly for those persons who might wish not to see material and will not be warned about it under any process currently in the Bill but will have a toggle to turn to. It safeguards children who would not otherwise be covered by that. That is a fair balance to be struck.

Having said that, we will be returning to this. The noble Lord, Lord Clement-Jones, made the good point that we have a rather ironic situation where a press regulation structure set up and agreed by Parliament is not in operation across the whole of the press, but we do not seem to make any accommodation for that. This is perhaps something we should return to at a later date.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I want very briefly to probe something. I may have got the wrong end of the stick, but I want to just ask about the recognised news publishers. The Minister’s explanation about what these amendments are trying to do was very clear, but I have some concerns.

I want to know how this will affect how we understand what a recognised news publisher is in a world in which we have many citizen journalists, blogs and online publications. One of the democratising effects of the internet has been in opening up spaces for marginalised voices, campaign journalism and so on. I am worried that we may inadvertently put them into a category of being not recognised; maybe the Minister can just explain that.

I am also concerned that, because this is an area of some contention, this could be a recipe for all sorts of litigious disputes with platforms about content removal, what constitutes those carve-outs and what is a recognised news, journalism or publishing outlet.

I know we will come on to this, but for now I am opposed to Amendment 127 in this group—or certainly concerned that it is an attempt to coerce publishers into a post-Leveson regulatory structure by denying them the protections that the Bill will give news publishers, unless they sign up in certain ways. I see that as blackmail and bullying, which I am concerned about. Much of the national press and many publishers have refused to join that kind of regulatory regime post Leveson, as is their right; I support them in the name of press freedom. Any comments or clarifications would be helpful.

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Those are the two things I am trying to achieve, which in many ways speak for themselves. I hope my noble friend will feel able to support them.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I have given notice in this group that I believe Clause 139 should not stand part of the Bill. I want to remove the idea of Ofcom having any kind of advisory committee on misinformation and disinformation, at least as it has been understood. I welcome the fact that the Government have in general steered clear of putting disinformation and misinformation into the Bill, because the whole narrative around it has become politicised and even weaponised, often to delegitimise opinions that do not fit into a narrow set of official opinions or simply to shout abuse at opponents. We all want the truth—if only it was as simple as hiring fact-checkers or setting up a committee.

I am particularly opposed to Amendment 52 from the noble Baroness, Lady Merron, and the noble Lord, Lord Bethell. They have both spoken very eloquently of their concerns, focusing on harmful health misinformation and disinformation. I oppose it because it precisely illustrates my point about the danger of these terms being used as propaganda.

There was an interesting and important investigative report brought out in January this year by Big Brother Watch entitled Inside Whitehall’s Ministry of Truth—How Secretive “Anti-Misinformation” Teams Conducted Mass Political Monitoring. It was rather a dramatic title. We now know that the DCMS had a counter-disinformation unit that had a special relationship with social media companies, and it used to recommend that content was removed. Interestingly, in relation to other groups we have discussed, it used third-party contractors to trawl through Twitter looking for perceived terms of service violations as a reason for content to be removed. This information warfare tactic, as we might call it, was used to target politicians and high-profile journalists who raised doubts or asked awkward questions about the official pandemic response. Dissenting views were reported to No.10 and then often denounced as misinformation, with Ministers pushing social media platforms to remove posts and promote Government-sponsored lines.

It has been revealed that a similar fake news unit was in the Cabinet Office. It got Whitehall departments to attack newspapers for publishing articles that analysed Covid-19 modelling, not because it was accurate—it was not accurate in many instances—but because it feared that any scepticism would affect compliance with the rules. David Davis MP appeared in an internal report on vaccine hesitancy, and his crime was arguing against vaccine passports as discriminatory, which was a valid civil liberties opposition but was characterised as health misinformation. A similar approach was taken to vaccine mandates, which led to tens of thousands of front-line care workers being sacked even though, by the time this happened, the facts were known: the vaccine was absolutely invaluable in protecting individual health, but it did not stop transmission, so there was no need for vaccine mandates to be implemented. The fact that this was not discussed is a real example of misinformation, but we did not have it in the public sphere.

Professor Carl Heneghan’s Spectator article that questioned whether the rule of six was an arbitrary number was also flagged across Whitehall as misinformation, but we now know that the rule of six was arbitrary. Anyone who has read the former Health Secretary Matt Hancock’s WhatsApp messages, which were leaked to the Telegraph and which many of us read with interest, will know that many things posed as “the science” and factual were driven by politics more than anything else. Covid policies were not all based on fact, yet it was others who were accused of misinformation.

Beyond health, the Twitter files leaked by Elon Musk, when he became its new owner, show the dangers of using the terms misinformation and disinformation to pressure big tech platforms into becoming tools of political censorship. In the run-up to the 2020 election, Joe Biden’s presidential campaign team routinely flagged tweets and accounts it wanted to be censored, and we have all seen the screengrab of email exchanges between executives as evidence of that. Twitter suppressed the New York Post’s infamous Hunter Biden laptop exposé on the spurious grounds that it was “planted Russian misinformation”. The Post was even locked out of its own account. It took 18 months for the Washington Post and the New York Times to get hold of, and investigate, Hunter Biden’s emails, and both determined that the New York Post’s original report was indeed legitimate and factually accurate, but it was suppressed as misinformation when it might have made some political difference in an election.

We might say that all is fair in love and war and elections but, to make us think about what we mean by “misinformation” and why it is not so simple, was the Labour Party attack ad that claimed Rishi Sunak did not believe that paedophiles should go to jail fair comment or disinformation, and who decides? I know that Tobias Ellwood MP called for a cross-party inquiry on the issue, calling on social media platforms to do more to combat “malicious political campaigns”. I am not saying that I have a view one way or another on this, but my question is: in that instance, who gets to label information as “malicious” or “fake” or “misinformation”? Who gets the final say? Is it a black and white issue? How can we avoid it becoming partisan?

Yesterday, at the Second Reading of the Illegal Migration Bill, I listened very carefully to the many contributions. Huge numbers of noble Lords continually claimed that all those in the small boats crossing the channel were fleeing war and persecution—fleeing for their lives. Factually that was inaccurate, according to detailed statistics and evidence, yet no one called those contributors “peddlers of misinformation”, because those speaking are considered to be compassionate and on the righteous side of the angels—at least in the case of the most reverend Primate the Archbishop of Canterbury—and, as defined by this House, they were seen to be saying the truth, regardless of the evidence. My point is that it was a political argument, yet here we are focusing on this notion that the public are being duped by misinformation.

What about those who tell children that there are 140 genders to choose from, or that biological sex is immutable? I would say that is dangerous misinformation or disinformation; others would say that me saying that is bigoted. There is at least an argument to be had, but it illustrates that the labelling process will always be contentious, and therefore I have to ask: who is qualified to decide?

A number of amendments in this group put forward a variety of “experts” who should be, for example, on the advisory committee—those who should decide and those who should not—and I want to look at this notion of expertise in truth. For example, in the report by the Communications and Digital Committee in relation to an incident where Facebook marked as “false” a post on Covid by a professor of evidence-based medicine at Oxford University, the committee asked Facebook about the qualifications of those who made that judgment—of the fact-checkers. It was told that they were

“certified by the International Fact-Checking Network”.

Now, you know, who are they? The professor of evidence-based medicine at Oxford University might have a bit more expertise here, and I do not want a Gradgrind version of truth in relation to facts, and so on.

If it were easy to determine the truth, we would be able to wipe out centuries of philosophy, but if we are going to have a committee determining the truth, could we also have some experts in civil liberties—maybe the Free Speech Union, Big Brother Watch, and the Index on Censorship—on a committee to ensure that we do not take down accurate information under the auspices of “misinformation”? Are private tech companies, or professional fact-checkers, or specially selected experts, best placed to judge the reliability of all sorts of information and of the truth, which I would say requires judgement, analysis and competing perspectives?

Too promiscuous a use of the terms “misinformation” and “disinformation” can also cause problems, and often whole swathes of opinion are lumped together. Those who raised civil liberties objections to lockdown where denounced “Covidiots”, conspiracy theorists peddling misinformation and Covid deniers, on a par with those who suggested that the virus was linked to everything from 5G masts to a conscious “plandemic”.

Those who now raise queries about suppressing any reference to vaccine harms, or who are concerned that people who have suffered proven vaccine-related harms are not being shown due support, are often lumped in with those who claim the vaccine was a crime against humanity. All are accused of misinformation, with no nuance and no attempt at distinguishing very different perspectives. Therefore, with such wide-ranging views labelled as “misinformation” as a means of censorship, those good intentions can backfire—and I do believe that there are good intentions behind many of these amendments.

--- Later in debate ---

When harmful narratives are identified, the unit works with departments across Whitehall to deploy the appropriate response, which could involve a direct rebuttal on social media or awareness-raising campaigns to promote the facts. Therefore, the primary purpose is not to monitor for harmful content to flag to social media companies—the noble Baroness raised this point—but the department may notify the relevant platform if, in the course of its work, it identifies content that potentially violates platforms’ terms of service, including co-ordinated, inauthentic or manipulative behaviour. It is then up to the platform to decide whether to take action against the content, based on its own assessment and terms of service.

[Baroness Fox of Buckley (Non-Afl)]

The Minister mentioned “acute” examples of misinformation and used the example of the pandemic. I tried to illustrate that perhaps, with hindsight, what were seen as acute examples of misinformation turned out to be rather more accurate than we were led to believe at the time. So my concern is that there is already an atmosphere of scepticism about official opinion, which is not the same as misinformation, as it is sometimes presented. I used the American example of the Hunter Biden laptop so we could take a step away.

[Lord Moylan (Con)]

This might be an appropriate moment for me to say—on the back of that—that, although my noble friend explained current government practice, he has not addressed my point on why there should not be an annual report to Parliament that describes what government has done on these various fronts. If the Government regularly meet newspaper publishers to discuss the quality of information in their newspapers, I for one would have entire confidence that the Government were doing so in the public interest, but I would still quite like—I think the Government would agree on this—a report on what was happening, making an exception for national security. That would still be a good thing to do. Will my noble friend explain why we cannot be told?

--- Later in debate ---

I agree but, matching like with like, I seek to amplify. More than tools, we need media literacy to be nothing short of the sword and the shield for young people in the online world—the sword and the shield for all people.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, for once, I am not entirely hostile to all these amendments—hurrah. In fact, I would rather have media literacy and education than regulation; that seems to me the solution to so much of what we have been discussing. But guess what? I have a few anxieties and I shall just raise them so that those who have put forward the arguments can come back to me.

We usually associate media literacy with schools and young people in education. Noble Lords will be delighted to know that I once taught media literacy: that might explain where we are now. It was not a particularly enlightening course for anybody, but it was part of the communications A-level at the time. I am worried about mandating schools how to teach media literacy. As the noble Lord, Lord Knight, will know, I worry about adding more to their overcrowded curriculum than they already have on their plate, but I note that the amendments actually expand the notion of being taught literacy to adults, away from just children. I suppose I just have some anxiety about Ofcom becoming the nation’s teacher, presenting users of digital services as though they are hapless and helpless. In other words, I am concerned about an overly paternalistic approach—that we should not be patronising.

The noble Baroness, Lady Kidron, keeps reminding us that content should not be our focus, and that it should be systems. In fact, in practically every discussion we have had, content has been the focus, because that is what will be removed, or not, by how we deal with the systems. That is one of the things that we are struggling with.

Literacy in the systems would certainly be very helpful for everybody. I have an idea—it is not an amendment—that we should send the noble Lord, Lord Allan of Hallam, on a UK tour so that he can explain it to us all; he is not here for this compliment, but every time he spoke in the first week of Committee, I think those of us who were struggling understood what he meant, as he explained complicated and technical matters in a way that was very clear. That is my constructive idea.

Amendment 52A from the noble Lord, Lord Knight of Weymouth, focuses on content, with its

“duty to make available information to allow users to establish the reliability and accuracy of content”.

That takes us back to the difficulties we were struggling with on how misinformation and disinformation will be settled and whether it is even feasible. I do not know whether any noble Lords have been following the “mask wars” that are going on. There are bodies of scientists on both sides on the efficacy of mask wearing—wielding scientific papers at dawn, as it were. These are well-informed, proper scientists who completely disagree on whether it was effective during lockdown. I say that because establishing reliability and accuracy is not that straightforward.

I like the idea of making available

“to users such information that may be necessary to allow users to establish the reliability and accuracy of content encountered on the service”.

I keep thinking that we need adults and young people to say that there is not one truth, such as “the science”, and to be equipped and given the tools to search around and compare and contrast different versions. I am involved in Debating Matters for 16 to 18 year-olds, which has topic guides that say, “Here is an argument, with four really good articles for it and four really good articles against, and here’s a load of background”. Then 16 to 18 year-olds will at least think that there is not just one answer. I feel that is the way forward.

The noble Lord, Lord Clement-Jones, said that I was preaching a counsel of despair; I like to think of myself as a person who has faith in the capacity and potential of people to overcome problems. I had a slight concern when reading the literature associated with online and digital literacy—not so much with the amendments—that it always says that we must teach people about the harms of the online world. I worry that this will reinforce a disempowering idea of feeling vulnerable and everything being negative. One of the amendments talks about a duty to promote users’ “safe use” of the service. I encourage a more positive outlook, incorporating into this literacy an approach that makes people aware that they can overcome and transcend insults and be robust and savvy enough to deal with algorithms—that they are not always victims but can take control over the choices they make. I would give them lessons on resilience, and possibly just get them all to read John Locke on toleration.

[Baroness Prashar (CB)]

My Lords, I will speak to Amendments 236, 237 and 238 in my name. I thank the noble Lord, Lord Storey, and the noble Baroness, Lady Bennett of Manor Castle, for supporting me. Like others, I thank Full Fact for its excellent briefings. I also thank the noble Lord, Lord Knight, for introducing this group of amendments, as it saves me having to make the case for why media literacy is a very important aspect of this work. It is the other side of regulation; they very much go hand in hand. If we do not take steps to promote media literacy, we could fall into a downward spiral of further and further regulation, so it is extremely important.

It is a sad fact that levels of media literacy are very low. Research from Ofcom has found that one-third of internet users are unaware of the potential for inaccurate and biased information. Further, 40% of UK adult internet users do not have the skills to critically assess information they see online, and only 2% of children have skills to tell fact from fiction online. It will not be paternalistic, but a regulator should be proactively involved in developing media literacy programmes. Through the complaints it receives and from the work that it does, the regulator can identify and monitor where the gaps are in media literacy.

To date, the response to this problem has been for social media platforms to remove content deemed harmful. This is often done using technology that picks up on certain words and phrases. The result has been content being removed that should not have been. Examples of this include organisations such as Mumsnet having social media posts on sexual health issues taken down because the posts use certain words or phrases. At one stage, Facebook’s policy was to delete or censor posts expressing opinions that deviated from the norm, without defining what “norm” actually meant. The unintended consequences of the Bill could undermine free speech. Rather than censoring free speech through removing harmful content, we should give a lot more attention to media literacy.

During the Bill’s pre-legislative scrutiny, the Joint Committee recommended that the Government include provisions to ensure media literacy initiatives are of a high standard. The draft version of the Bill included Clause 103, which strengthened the media literacy provisions in the Communications Act 2003, as has already been mentioned. Regrettably, the Government later withdrew the enhanced media literacy clause, so the aim of my amendments is to reintroduce strong media literacy provisions. Doing so will both clarify and strengthen media literacy obligations on online media providers and Ofcom.

Amendment 236 would place a duty on Ofcom to take steps to improve the media literacy of the public in relation to regulated services. As part of this duty, Ofcom must try to reach audiences who are less engaged and harder to reach through traditional media literacy services. It must also address gaps in the current availability of media literacy provisions for vulnerable users. Many of the existing media literacy services are targeted at children but we need to include vulnerable adults too. The amendment would place a duty on Ofcom to promote availability and increase the effectiveness of media literacy initiatives in relation to regulated services. It seeks to ensure that providers of regulated services take appropriate measures to improve users’ media literacy through Ofcom’s online safety function. This proposed new clause makes provision for Ofcom to prepare guidance about media literacy matters, and such guidance must be published and kept under review.

Amendment 237 would place a duty on Ofcom to prepare a strategy on how it intends to undertake the duty to promote media literacy. This strategy should set out the steps Ofcom proposes to take to achieve its media literacy duties and identify organisations, or types of organisations, that Ofcom will work with to undertake these duties. It must also explain why Ofcom believes the proposed steps will be effective in how it will assess progress. This amendment would also place a duty on Ofcom to have regard to the need to allocate adequate resources for implementing this strategy. It would require Ofcom’s media strategy to be published within six months of this provision coming into force, and to be revised within three years; in both cases this should be subject to consultation.

Amendment 238 would place a duty on Ofcom to report annually on the delivery of its media literacy strategy. This reporting must include steps taken in accordance with the strategy and assess the extent to which those steps have had an effect. This amendment goes further than the existing provisions in the Communications Act 2003, which do not include duties on Ofcom to produce a strategy or to measure progress; nor do they place a duty on Ofcom to reach hard-to-reach audiences who are the most vulnerable in our society to disinformation and misinformation.

Online Safety Bill

Baroness Fox of Buckley Excerpts

Committee stage
Tuesday 9th May 2023 Lords Chamber

[Baroness Bull (CB)]

My Lords, I rise to speak to Amendment 141 in the names of the noble Lords, Lord Stevenson and Lord Clement-Jones. Once again, I register the support of my noble friend Lady Campbell of Surbiton, who feels very strongly about this issue.

Of course, there is value in transparency online, but anonymity can be vital for certain groups of people, such as those suffering domestic abuse, those seeking help or advice on matters they wish to remain confidential, or those who face significant levels of hatred or prejudice because of who they are, how they live or what they believe in. Striking the right balance is essential, but it is equally important that everyone who wishes to verify their identity and access the additional protections that this affords can do so easily and effectively, and that this opportunity is open to all.

Clause 57 requires providers of category 1 services to offer users the option to verify their identity, but it is up to providers to decide what form of verification to offer. Under subsection (2) it can be “of any kind”, and it need not require any documentation. Under subsection (3), the terms of service must include a “clear and accessible” explanation of how the process works and what form of verification is available. However, this phrase in itself is open to interpretation: clear and accessible for one group may be unclear and inaccessible to another. Charities including Mencap are concerned that groups, such as people with a learning disability, could be locked out of using these tools.

It is also relevant that people with a learning disability are less likely to own forms of photographic ID such as passports or driving licences. Should a platform require this type of ID, large numbers of people with a learning disability would be denied access. In addition, providing an email or phone number and verifying this through an authentication process could be extremely challenging for those people who do not have the support in place to help them navigate this process. This further disadvantages groups of people who already suffer some of the most extensive restrictions in living their everyday lives.

Clause 58 places a duty on Ofcom to provide guidance to help providers comply with their duty, but this guidance is optional. Amendment 141 aims to strengthen Clause 58 by requiring Ofcom to set baseline principles and standards for the guidance. It would ensure, for example, that the guidance considers accessibility for disabled as well as vulnerable adults and aligns with relevant guidance on related matters such as age verification; it would ensure that verification processes are effective; and it would ensure that the interests of disabled users are covered in Ofcom’s pre-guidance consultation.

Online can be a lifeline for disabled and vulnerable adults, providing access to support, advice and communities of interest, and this is particularly important as services in the real world are diminishing, so we need to ensure that user-verification processes do not act as a further barrier to inclusion for people with protected characteristics, especially those with learning disabilities.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the speech of the noble Baroness, Lady Buscombe, raised so many of the challenges that people face online, and I am sure that the masses who are watching parliamentlive as we speak, even if they are not in here, will recognise what she was talking about. Certainly, some of the animal rights activists can be a scourge, but I would not want to confine this to them, because I think trashing reputations online and false allegations have become the activists’ chosen weapon these days. One way that I describe cancel culture, as distinct from no-platforming, is that it takes the form of some terrible things being said about people online, a lot of trolling, things going viral and using the online world to lobby employers to get people sacked, and so on. It is a familiar story, and it can be incredibly unpleasant. The noble Baroness and those she described have my sympathy, but I disagree with her remedy.

An interesting thing is that a lot of those activities are not carried out by those who are anonymous. It is striking that a huge number of people with large accounts, well-known public figures with hundreds of thousands of followers—sometimes with more than a million—are prepared to do exactly what I described in plain sight, often to me. I have thought long and hard about this, because I really wanted to use this opportunity to read out a list and name and shame them, but I have decided that, when they go low, I will try to go at least a little higher. But subtweeting and twitchhunts are an issue, and one reason why we think we need an online harms Bill. As I said, I know that sometimes it can feel that if people are anonymous, they will say things that they would not say to your face or if you knew who they were, but I think it is more the distance of being online: even when you know who they are, they will say it to you or about you online, and then when you see them at the drinks reception, they scuttle away.

My main objection, however, to the amendment of the noble Baroness, Lady Buscombe, and the whole question of anonymity in general is that it treats anonymity as though it is inherently unsafe. There is a worry, more broadly on verification, about creating two tiers of users: those who are willing to be verified and those who are not, and those who are not somehow having a cloud of suspicion over them. There is a danger that undermining online anonymity in the UK could set a terrible precedent, likely to be emulated by authoritarian Governments in other jurisdictions, and that is something we must bear in mind.

On evidence, I was interested in Big Brother Watch’s report on some analysis by the New Statesman, which showed that there is little evidence to suggest that anonymity itself makes online discourse more febrile. It did an assessment involving tweets sent to parliamentarians since January 2021, and said there was

“little discernible difference in the nature or tone of the tweets that MPs received from anonymous or non-anonymous accounts. While 32 per cent of tweets from anonymous accounts were classed as angry according to the metric used by the New Statesman, so too were 30 per cent of tweets from accounts with full names attached.18 Similarly, 5.6 per cent of tweets from anonymous accounts included swear words, only slightly higher than the figure of 5.3 per cent for named accounts.”

It went through various metrics, but it said, “slightly higher, not much of a difference”. That is to be borne in mind: the evidence is not there.

In this whole debate, I have wanted to emphasise freedom as at least equal to, if not of greater value than, the safetyism of this Bill, but in this instance, I will say that, as the noble Baroness, Lady Bull, said, for some people anonymity is an important safety mechanism. It is a tool in the armoury of those who want to fight the powerful. It can be anyone: for young people experimenting with their sexuality and not out, it gives them the freedom to explore that. It can be, as was mentioned, survivors of sexual violence or domestic abuse. It is certainly crucial to the work of journalists, civil liberties activists and whistleblowers in the UK and around the world. Many of the Iranian women’s accounts are anonymous: they are not using their correct names. The same is true of Hong Kong activists; I could go on.

Anyway, in our concerns about the Bill, compulsory identity verification means being forced to share personal data, so there is a privacy issue for everyone, not just the heroic civil liberties people. In a way, it is your own business why you are anonymous—that is the point I am trying to make.

There are so many toxic issues at the moment that a lot of people cannot just come out. I know I often mention the gender-critical issue, but it is true that in many professions, you cannot give your real name or you will not just be socially ostracised but potentially jeopardise your career. I wrote an article during the 2016-17 days called Meet the Secret Brexiteers. It was true that many teachers and professors I knew who voted to leave had to be anonymous online or they would not have survived the cull.

Finally, I do not think that online anonymity or pseudonymity is a barrier to tracking down and prosecuting those who commit the kind of criminal activity on the internet described, creating some of the issues we are facing. Police reports show that between 2017-18, 96% of attempts by public authorities to identify anonymous users of social media accounts, their email addresses and telephone numbers, resulted in successful identification of the suspect in the investigation; in other words, the police already have a range of intrusive powers to track down individuals, should there be a criminal problem, and the Investigatory Powers Act 2016 allows the police to acquire communications data—for example, email addresses or the location of a device—from which alleged illegal anonymous activity is conducted and use it as evidence in court.

If it is not illegal but just unpleasant, I am afraid that is the world we live in. I would argue that what we require in febrile times such as these is not bans or setting the police on people but to set the example of civil discourse, have more speech and show that free speech is a way of conducting disagreement and argument without trashing reputations.

[Lord Clement-Jones (LD)]

My Lords, what an unusually reticent group we have here for this group of amendments. I had never thought of the noble Baroness, Lady Fox, as being like Don Quixote, but she certainly seems to be tilting at windmills tonight.

I go back to the Joint Committee report, because what we said there is relevant. We said:

“Anonymous abuse online is a serious area of concern that the Bill needs to do more to address. The core safety objectives apply to anonymous accounts as much as identifiable ones. At the same time, anonymity and pseudonymity are crucial to online safety for marginalised groups, for whistleblowers, and for victims of domestic abuse and other forms of offline violence. Anonymity and pseudonymity themselves are not the problem and ending them would not be a proportionate response”.


We were very clear; the Government’s response on this was pretty clear too.

We said:

“The problems are a lack of traceability by law enforcement, the frictionless creation and disposal of accounts at scale, a lack of user control over the types of accounts they engage with and a failure of online platforms to deal comprehensively with abuse on their platforms”.


We said there should be:

“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”.


Crucially for these amendments, we said:

“We recommend that the Code of Practice also sets out clear minimum standards to ensure identification processes used for verification protect people’s privacy—including from repressive regimes or those that outlaw homosexuality”.


We were very clear about the difference between stripping away anonymity and ensuring that verification was available where the user wanted to engage only with those who had verified themselves. Requiring platforms to allow users—

--- Later in debate ---

[Lord Kamall (Con)]

My Lords, at the beginning of Committee, I promised that I would speak only twice, and this is the second time. I hope that noble Lords will forgive me if I stray from the group sometimes, but I will be as disciplined as I can. I will speak to Amendments 57 and 62, which the noble Baroness, Lady Featherstone, and I tabled. As others have said, the noble Baroness sends her apologies; sadly, she has fractured her spine, and I am sure we all wish her a speedy recovery. The noble Baroness, Lady Fox, has kindly added her name to these amendments.

As I have said, in a previous role, as a research director of a think tank—I refer noble Lords to my registered interests—I became interested in the phenomenon of unintended consequences. As an aside, it is sometimes known as the cobra effect, after an incident during the colonial rule of India, when a British administrator of Delhi devised a cunning plan to rid the city of dangerous snakes. It was simple: he would pay local residents a bounty for each cobra skin delivered. What could possibly go wrong? Never slow to exploit an opportunity, enterprising locals started to farm cobras as a way of earning extra cash. Eventually, the authorities grew wise to this, and the payments stopped. As a result, the locals realised that the snakes were now worthless and released them into the wild, leading to an increase, rather than a decrease, in the population of cobras.

As with the cobra effect, there have been many similar incidents of well-intentioned acts that have unintentionally made things worse. So, as we try to create a safer online space for our citizens, especially children and vulnerable adults, we should try to be as alert as we can to unintended consequences. An example is encrypted messages, which I discussed in a previous group. When we seek access to encrypted messages in the name of protecting children in this country, we should be aware that such technology could lead to dissidents living under totalitarian regimes in other countries being compromised or even murdered, with a devastating impact on their children.

We should also make sure that we do not unintentionally erode the fundamental rights and freedoms that underpin our democracy, and that so many people have struggled for over the centuries. I recognise that some noble Lords may say that that is applicable to other Bills, but I want to focus specifically on the implications for this Bill. In our haste to protect, we may create a digital environment and marketplace that stifles investment and freedom of expression, disproportionately impacting marginalised communities and cultivating an atmosphere of surveillance. The amendments the noble Baroness and I have tabled are designed to prevent such outcomes. They seek to strike a balance between regulating for a safer internet and preserving our democratic values. As many noble Lords have rightly said, all these issues will involve trade-offs; we may disagree, but I hope we will have had an informed debate, regardless of which side of the argument we are on.

We should explicitly outline the duties that service providers and regulators have with respect to these rights and freedoms. Amendment 57 focuses on safe- guarding specific fundamental rights and freedoms for users of regulated user-to-user services, including the protection of our most basic human rights. We believe that, by explicitly stating these duties, rather than hoping that they are somehow implied, we will create a more comprehensive framework for service providers to follow, ensuring that their safety policies and procedures do not undermine the essential rights of users, with specific reference to

“users with protected characteristics under the Equality Act 2010”.

Amendment 62 focuses on the role of Ofcom in mitigating risks to freedom of expression. I recognise that there are other amendments in this group on that issue. It is our responsibility to ensure that the providers of regulated user-to-user services are held accountable for their content moderation and recommender systems, to ensure they do not violate our freedoms.

I want this Bill to be a workable Bill. As I have previously said, I support the intention behind it to protect children and vulnerable adults, but as I have said many times, we should also be open about the trade-off between security and protection on the one hand, and freedom of expression on the other. My fear is that, without these amendments, we risk leaving our citizens vulnerable to the unintended consequences of overzealous content moderation, biased algorithms and opaque decision-making processes. We should shine a light on and bring transparency to our new processes, and perhaps help guide them by being explicit about those elements of freedom of speech we wish to preserve.

It is our duty to ensure that the Online Safety Bill not only protects our citizens from harm but safeguards the principles that form the foundation of a free and open society. With these amendments, we hope to transcend partisan divides and to fortify the essence of our democracy. I hope that we can work together to create an online environment that is safe, inclusive and respectful of the rights and freedoms that the people of this country cherish. I hope that other noble Lords will support these amendments, and, ever the optimist, that my noble friend the Minister will consider adopting them.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Kamall, who explained well why I put my name to the amendments. I extend my regards to the noble Baroness, Lady Featherstone; I was looking forward to hearing her remarks, and I hope that she is well.

I am interested in free speech; it is sort of my thing. I am interested in how we can achieve a balance and enhance the free speech rights of the citizens of this country through the Bill—it is what I have tried to do with the amendments I have supported—which I fear might be undermined by it.

I have a number of amendments in this group. Amendment 49 and the consequential Amendments 50 and 156 would require providers to include in their terms of service

“by what method content present on the service is to be identified as content of democratic importance”,

and bring Clause 13 in line with Clauses 14 and 15 by ensuring an enhanced focus on the democratic issue.

Amendment 53A would provide that notification is given

“to any user whose content has been removed or restricted”.

It is especially important that the nature of the restriction in place be made clear, evidenced and justified in the name of transparency and—a key point—that the user be informed of how to appeal such decisions.

Amendment 61 in my name calls for services to have

“proportionate systems, processes and policies designed to ensure that as great a weight is given to users’ right to freedom of expression ... as to safety when making decisions”

about whether to take down or restrict users access to the online world, and

“whether to take action against a user generating, uploading or sharing content”.

In other words, it is all about applying a more robust duty to category 1 service providers and emphasising the importance of protecting

“a wide diversity of political, social, religious and philosophical opinion”

online.

I give credit to the Government, in that Clause 18 constitutes an attempt by them in some way to balance the damage to individual rights to freedom of expression and privacy as a result of the Bill, but I worry that it is a weak duty. Unlike operational safety duties, which compel companies proactively to prevent or minimise so-called harm in the way we have discussed, there is no such attempt to insist that freedom of speech be given the same regard or importance. In fact, there are worries that the text of the Bill has downgraded speech and privacy rights, which the Open Rights Group says

“are considered little more than a contractual matter”.

There has certainly been a lot of mention of free speech in the debates we have had so far in Committee, yet I am not convinced that the Bill gives it enough credit, which is why I support the explicit reference to it by the noble Lord, Lord Kamall.

I have a lot of sympathy with the amendments of the noble Lord, Lord Stevenson, seeking to replace Clauses 13, 14, 15 and 18 with a single comprehensive duty, because in some ways we are scratching around. That made some sense to me and I would be very interested to hear more about how that might work. Clauses 13, 14, 15 and 18 state that service providers must have regard to the importance of protecting users’ rights to freedom of expression in relation to

“content of democratic importance ... publisher content ... journalistic content”.

The very existence of those clauses, and the fact that we even need those amendments, is an admission by the Government that elsewhere, free speech is a downgraded virtue. We need these carve-outs to protect these things, because the rest of the Bill threatens free speech, which has been my worry from the start.

My Amendment 49 is a response to the Bill’s focus on protecting “content of democratic importance”. I was delighted that this was included, and the noble Lord, Lord Stevenson of Balmacara, has raised a lot of the questions I was asking. I am concerned that it is rather vaguely drawn, and too narrow and technocratic—politics with a big “P”, rather than in the broader sense. There is a lot that I would consider democratically important that other people might see, especially given today’s discussion, as harmful or dangerous. Certainly, the definition should be as broad as possible, so my amendment seeks to write that down, saying that it should include

“political, social, religious and philosophical opinion”.

That is my attempt to broaden it out. It is not perfect, I am sure, but that is the intention.

I am also keen to understand why Clauses 14 and 15, which give special protection to news publisher and journalistic content, have enhanced provisions, including an expedited appeals process for the reinstatement of removed materials, but those duties are much weaker—they do not exist—in Clause 13, which deals with content of democratic importance. In my amendment, I have suggested that they are levelled up.

Online Safety Bill

Baroness Fox of Buckley Excerpts

Committee stage
Tuesday 9th May 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, this group of amendments looks at the treatment of legal content accessed by adults. The very fact that Parliament feels that legislation has a place in policing access to legal material is itself worrying. This door was opened by the Government in the initial draft Bill, but, as we have already heard, after a widespread civil liberties backlash against the legal but harmful clauses, we are left with Clause 65. As has been mentioned, I am worried that this clause, and some of the amendments, might well bring back legal but harmful for adults by the back door. One of the weasel words here is “harmful”. As I have indicated before, it is difficult to work out from the groupings when to raise which bit, so I am keeping that for your Lordships until later and will just note that I am rather nervous about the weasel word “harmful”.

Like many of us, I cheered at the removal of the legal but harmful provisions, but I have serious reservations about their replacement with further duties via terms of service, which imposes a duty on category 1 services to have systems and processes in place to take down or restrict access to content, and to ban or suspend users in accordance with terms of service, as the noble Lord, Lord Moylan, explained. It is one of the reasons I support his amendment. It seems to me to be the state outsourcing the grubby job of censorship to private multinational companies with little regard for UK law.

I put my name to Amendment 155 in the name of the noble Lord, Lord Moylan, because I wanted to probe the Government’s attitude to companies’ terms of service. Platforms have no obligation to align their terms of service with freedom of expression under UK law. It is up to them. I am not trying to impose on them what they do with their service users. If a particular platform wishes to say, “We don’t want these types of views on our platform”, fine, that is its choice. But when major platforms’ terms of service, which are extensive, become the basis on which UK law enforces speech, I get nervous. State regulators are to be given the role of ensuring that all types of lawful speech are suppressed online, because the duty applies to all terms of service, whatever they are, regarding the platforms’ policies on speech suppression, censorship, user suspension, bans and so on. This duty is not restricted to so-called harmful content; it is whatever content the platform wishes to censor.

What is more, Clause 65 asks Ofcom to ensure that individuals who express lawful speech are suspended or banned from platforms if in breach of the platforms’ Ts & Cs, and that means limiting those individuals from expressing themselves more widely, beyond the specific speech in question. That is a huge green light to interfere in UK citizens’ freedom of expression, in my opinion.

I stress that I am not interested in interfering in the terms and conditions of private companies, although your Lordships will see later that I have an amendment demanding that they introduce free-speech clauses. That is because of the way we seem to be enacting the law via the terms of service of private companies. They should of course be free to dictate their own terms of service, and it is reasonable that members of the public should know what they are and expect them to be upheld. But that does not justify the transformation of these private agreements into statutory duties—that is my concern.

So, why are we allowing this Bill to ask companies to enforce censorship policies in the virtual public square that do not exist in UK law? When companies’ terms of service permit the suppression of speech, that is up to them, but when they supress speech far beyond the limitations of speech in UK law and are forced to do so by a government regulator such as Ofcom, are we not in trouble? It means that corporate terms of service, which are designed to protect platforms’ business interests, are trumping case law on free speech that has evolved over many years.

Those terms of service are also frequently in flux, according to fashion or ownership; one only has to look at the endless arguments, which I have yet to understand, about Twitter’s changing terms of service after the Elon Musk takeover. Is Ofcom’s job to follow Elon Musk’s ever-changing terms of service and enforce them on the British public as if they are law?

The terms and conditions are therefore no longer simply a contract between a company and the user; their being brought under statute means that big tech will be exercising public law functions, with Ofcom as the enforcer, ensuring that lawful speech is suppressed constantly, in line with private companies’ terms of service. This is an utter mess and not in any way adequate to protect free speech. It is a fudge by the Government: they were unpopular on “lawful but harmful”, so they have outsourced it to someone else to do the dirty work.

[Lord Clement-Jones (LD)]

My Lords, it has been interesting to hear so many noble Lords singing from the same hymn sheet—especially after this weekend. My noble friend Lord McNally opened this group by giving us his wise perspective on the regulation of new technology. Back in 2003, as he mentioned, the internet was not even mentioned in the Communications Act. He explained how regulation struggles to keep up and how quantum leaps come with a potential social cost; all that describes the importance of risk assessment of these novel technologies.

As we have heard from many noble Lords today, on Report in the Commons the Government decided to remove the adult safety duties—the so-called “legal but harmful” aspect of the Bill. I agree with the many noble Lords who have said that this has significantly weakened the protection for adults under the Bill, and I share the scepticism many expressed about the triple shield.

Right across the board, this group of amendments, with one or two exceptions, rightly aims to strengthen the terms of service and user empowerment duties in the Bill in order to provide a greater baseline of protection for adults, without impinging on others’ freedom of speech, and to reintroduce some risk-assessment requirement on companies. The new duties will clearly make the largest and riskiest companies expend more effort on enforcing their terms of service for UK users. However, the Government have not yet presented any modelling on what effect this will have on companies’ terms of service. I have some sympathy with what the noble Lord, Lord Moylan, said: the new duties could mean that terms of service become much longer and lawyered. This might have an adverse effect on freedom of expression, leading to the use of excessive takedown measures rather than looking at other more systemic interventions to control content such as service design. We heard much the same argument from the noble Baroness, Lady Fox. They both made a very good case for some of the amendments I will be speaking to this afternoon.

On the other hand, companies that choose to do nothing will have an easier life under this regime. Faced with stringent application of the duties, companies might make their terms of service shorter, cutting out harms that are hard to deal with because of the risk of being hit with enforcement measures if they do not. Therefore, far from strengthening protections via this component of the triple shield, the Bill risks weakening them, with particular risks for vulnerable adults. As a result, I strongly support Amendments 33B and 43ZA, which my noble friend Lord McNally spoke to last week at the beginning of the debate on this group.

Like the noble Baroness, Lady Kidron, I strongly support Amendments 154, 218 and 160, tabled by the noble Lord, Lord Stevenson, which would require regulated services to maintain “adequate and appropriate” terms of service, including provisions covering the matters listed in Clause 12. Amendment 44, tabled by the right reverend Prelate the Bishop of Oxford and me, inserts a requirement that services to which the user empowerment duties apply

“must make a suitable and sufficient assessment of the extent to which they have carried out the duties in this section including in each assessment material changes from the previous assessment such as new or removed user empowerment features”.

The noble Viscount, Lord Colville, spoke very well to that amendment, as did the noble Baronesses, Lady Fraser and Lady Kidron.

Amendment 158, also tabled by me and the right reverend Prelate, inserts a requirement that services

“must carry out a suitable and sufficient assessment of the extent to which they have carried out the duties under sections 64 and 65 ensuring that assessment reflects any material changes to terms of service”.

That is a very good way of meeting some of the objections that we have heard to Clause 65 today.

These two amendments focus on risk assessment because the new duties do not have an assessment regime to work out whether they work, unlike the illegal content and children’s duties, as we have heard. Risk assessments are vital to understanding the environment in which the services are operating. A risk assessment can reduce bureaucracy by allowing companies to rule out risks which are not relevant to them, and it can increase user safety by revealing new risks and future-proofing a regime.

The Government have not yet provided, in the Commons or in meetings with Ministers, any proper explanation of why risk assessment duties have been removed along with the previous adult safety duties, and they have not explained in detail why undertaking a risk assessment is in any way a threat to free speech. They are currently expecting adults to manage their own risks, without giving them the information they need to do so. Depriving users of basic information about the nature of harms on a service prevents them taking informed decisions as to whether they want to be on it at all.

Without these amendments, the Bill cannot be said to be a complete risk management regime. There will be no requirement to explain to Ofcom or to users of a company’s service the true nature of the harms that occur on its service, nor the rationale behind the decisions made in these two fundamental parts of the service. This is a real weakness in the Bill, and I very much hope that the Minister will listen to the arguments being made this afternoon.

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[Lord Parkinson of Whitley Bay (Con)]

I will come on to say a bit more about how Ofcom goes about that work.

The Bill will ensure that providers have the information they need to understand whether they are in compliance with their duties under the Bill. Ofcom will set out how providers can comply in codes of practice and guidance that it publishes. That information will help providers to comply, although they can take alternative action if they wish to do so.

The right reverend Prelate’s amendments also seek to provide greater transparency to Ofcom. The Bill’s existing duties already account for this. Indeed, the transparency reporting duties set out in Schedule 8 already enable Ofcom to require category 1, 2A and 2B services to publish annual transparency reports with relevant information, including about the effectiveness of the user empowerment tools, as well as detailed information about any content that platforms prohibit or restrict, and the application of their terms of service.

Amendments 159, 160 and 218, tabled by the noble Lord, Lord Stevenson, seek to require user-to-user services to create and abide by minimum terms of service recommended by Ofcom. The Bill already sets detailed and binding requirements on companies to achieve certain outcomes. Ofcom will set out more detail in codes of practice about the steps providers can take to comply with their safety duties. Platforms’ terms of service will need to provide information to users about how they are protecting users from illegal content, and children from harmful content.

These duties, and Ofcom’s codes of practice, ensure that providers take action to protect users from illegal content and content that is harmful to children. As such, an additional duty to have adequate and appropriate terms of service, as envisaged in the amendments, is not necessary and may undermine the illegal and child safety duties.

I have previously set out why we do not agree with requiring platforms to set terms of service for legal content. In addition, it would be inappropriate to delegate this much power to Ofcom, which would in effect be able to decide what legal content adult users can and cannot see.

Amendment 155, tabled by my noble friend Lord Moylan, seeks to clarify whether and how the Bill makes the terms of service of foreign-run platforms enforceable by Ofcom. Platforms’ duties under Clause 65 apply only to the design, operation and use of the service in the United Kingdom and to UK users, as set out in Clause 65(11). Parts or versions of the service which are used in foreign jurisdictions—

[Baroness Fox of Buckley (Non-Afl)]

On that, in an earlier reply the Minister explained that platforms already remove harmful content because it is harmful and because advertisers and users do not like it, but could he tell me what definition of “harmful” he thinks he is using? Different companies will presumably have a different interpretation of “harmful”. How will that work? It would mean that UK law will require the removal of legal speech based on a definition of harmful speech designed by who—will it be Silicon Valley executives? This is the problem: UK law is being used to implement the removal of content based on decisions that are not part of UK law but with implications for UK citizens who are doing nothing unlawful.

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness’s point gets to the heart of the debate that we have had. I talked earlier about the commercial incentive that there is for companies to take action against harmful content that is legal which users do not want to see or advertisers do not want their products to be advertised alongside, but there is also a commercial incentive to ensure that they are upholding free speech and that there are platforms on which people can interact in a less popular manner, where advertisers that want to advertise products legally alongside that are able to do so. As with anything that involves the market, the majority has a louder voice, but there is room for innovation for companies to provide products that cater to minority tastes within the law.

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[Lord Griffiths of Burry Port (Lab)]

My Lords, it is a pleasure to be collaborating with the noble Baroness, Lady Morgan. We seem to have been briefed by the same people, been to the same meetings and drawn the same conclusions. However, there are some things that are worth saying twice and, although I will try to avoid a carbon copy of what the noble Baroness said, I hope the central points will make themselves.

The internet simply must be made to work for its users above all else—that is the thrust of the two amendments that stand in our names. Through education and communication, the internet can be a powerful means of improving our lives, but it must always be a safe platform on which to enjoy a basic right. It cannot be said often enough that to protect users online is to protect them offline. To create a strict division between the virtual and the public realms is to risk ignoring how actions online can have life and death repercussions, and that is at the heart of what these amendments seek to bring to our attention.

I was first made aware of these amendments at a briefing from the Samaritans, where we got to know each other. There I heard the tragic accounts of those whose loved ones had taken their own lives due to exposure to harmful content online. I will not repeat their accounts—this is not the place to do that—but understanding only a modicum of their grief made it obvious to me that the principle of “safest option by default” must underline all our decision-making on this.

I applaud the work already done by Members of this House to ensure the safety of young people online. Yet it is vital, as the noble Baroness has said, that we do not create a drop-off point for future users—one in which turning 18 means sudden exposure to the most harmful content lurking online, as it is always there. Those most at risk of suicide due to exposure to harmful content are aged between their late teens and early 20s. In fact, a 2017 inquiry into the suicides of young people found harmful content accessed online in 26% of the deaths of under 20s and 13% of the deaths of 20 to 24 year-olds. It is vital for us to empower users from their earliest years.

In the Select Committee—I see fellow members sitting here today—we have been looking at digital exclusion and the need for education at all levels for those using the internet. Looking for good habits established in the earliest years is the right way to start, but it goes on after that, because the world that young people go on to inhabit in adulthood is one where they are already in control of the internet—if they had the education earlier. Adulthood comes with the freedom to choose how one expresses oneself online—of course it does—but this must not be at the cost of their continuing freedom from the most insidious content that puts their mental health at risk. Much mention has been made of the triple shield and I need not go there again. Its origins and perhaps deficiencies have been mentioned already.

The Center for Countering Digital Hate recently conducted an experiment, creating new social media accounts that showed interest in body image and mental health. This study found that TikTok served suicide-related content to new accounts within 2.6 minutes, with eating disorder content being recommended within 8 minutes. At the very least, these disturbing statistics tell us that users should have the option to opt in to such content, and not have to suffer this harm before later opting out. While the option to filter out certain categories of content is essential, it must be toggled on by default if safety is to be our primary concern.

The principle of safest by default creates not only a less harmful environment, but one in which users are in a position to define their own online experience. The space in which we carry out our public life is increasingly located on a small number of social media platforms—those category 1 platforms already mentioned several times—which everyone, from children to pensioners, uses to communicate and share their experiences.

We must then ensure that the protections we benefit from offline continue online: namely, protection from the harm and hate that pose a threat to our physical and mental well-being. When a child steps into school or a parent into their place of work, they must be confident that those with the power to do so have created the safest possible environment for them to carry out their interactions. This basic confidence must be maintained when we log in to Twitter, Instagram, TikTok or any other social media giant.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, my Amendment 43 tackles Clause 12(1), which expressly says that the duties in Clause 12 are to “empower” users. My concern is to ensure that, first, users are empowered and, secondly, legitimate criticism around the characteristics listed in Clause 12(11) and (12), for example, is not automatically treated as abusive or inciting hatred, as I fear it could be. My Amendment 283ZA specifies that, in judging content that is to be filtered out after a user has chosen to switch on various filters, the providers act reasonably and pause to consider whether they have “reasonable grounds” to believe that the content is of the kind in question—namely, abusive or problematic.

Anything under the title “empower adult users” sounds appealing—how can I oppose that? After all, I am a fan of the “taking back control” form of politics, and here is surely a way for users to be in control. On paper, replacing the “legal but harmful” clause with giving adults the opportunity to engage with controversial content if they wish, through enhanced empowerment tools, sounds positive. In an earlier discussion of the Bill, the noble Baroness, Lady Featherstone, said that we should treat adults as adults, allowing them to confront ideas with the

“better ethics, reason and evidence”—[Official Report, 1/2/23; col. 735.]

that has been the most effective way to deal with ideas from Socrates onwards. I say, “Hear, hear” to that. However, I worry that, rather than users being in control, there is a danger that the filter system might infantilise adult users and disempower them by hard-wiring into the Bill a duty and tendency to hide content from users.

There is a general weakness in the Bill. I have noted that some platforms are based on users moderating their own sites, which I am quite keen on, but this will be detrimentally affected by the Bill. It would leave users in charge of their own moderation, with no powers to decide what is in, for example, Wikipedia or other Wikimedia projects, which are added to, organised and edited by a decentralised community of users. So I will certainly not take the phrase “user empowerment” at face value.

I am slightly concerned about linguistic double-speak, or at least confusion. The whole Bill is being brought forward in a climate in which language is weaponised in a toxic minefield—a climate of, “You can’t say that”. More nerve-rackingly, words and ideas are seen as dangerous and interchangeable with violent acts, in a way that needs to be unpicked before we pass this legislation. Speakers can be cancelled for words deemed to threaten listeners’ safety—but not physical safety; the opinions are said to be unsafe. Opinions are treated as though they cause damage or harm as viscerally as physical aggression. So lawmakers have to recognise the cultural context and realise that the law will be understood and applied in it, not in the abstract.

I am afraid that the language in Clause 12(1) and (2) shows no awareness of this wider backdrop—it is worryingly woolly and vague. The noble Baroness, Lady Morgan, talked about dangerous content, and all the time we have to ask, “Who will interpret what is dangerous? What do we mean by ‘dangerous’ or ‘harmful’?”. Surely a term such as “abusive”, which is used in the legislation, is open to wide interpretation. Dictionary definitions of “abusive” include words such as “rude”, “insulting” and “offensive”, and it is certainly subjective. We have to query what we mean by the terms when some commentators complain that they have been victims of online abuse, but when you check their timelines you notice that, actually, they have been subject just to angry, and sometimes justified, criticism.

I recently saw a whole thread arguing that the Labour Party’s recent attack ads against the Prime Minister were an example of abusive hate speech. I am not making a point about this; I am asking who gets to decide. If this is the threshold for filtering content, there is a danger of institutionalising safe space echo chambers. It can also be a confusing word for users, because if someone applies a user empowerment tool to protect themselves from abuse, the threshold at which the filter operates could be much lower than they intend or envisage but, by definition, the user would not know what had been filtered out in their name, and they have no control over the filtering because they never see the filtered content.

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[Baroness Bull (CB)]

My Lords, I support the noble Baroness, Lady Buscombe, on the built-in obsolescence of any list. It would very soon be out of date.

I support the amendments tabled by the noble Lord, Lord Clement-Jones, and by the noble Baroness, Lady Morgan of Cotes. They effectively seek a similar aim. Like the noble Baroness, Lady Fraser, I tend towards those tabled by the noble Lord, Lord Clement-Jones, because they seem clearer and more inclusive, but I understand that they are trying for the same thing. I also register the support for this aim of my noble friend Lady Campbell of Surbiton, who cannot be here but whom I suspect is listening in. She was very keen that her support for this aim was recorded.

The issue of “on by default” inevitably came up at Second Reading. Then and in subsequent discussions, the Minister reiterated that a “default on” approach to user empowerment tools would negatively impact people’s use of these services. Speaking at your Lordships’ Communications and Digital Committee, on which I sat at the time, Minister Scully went further, saying that the strongest option, of having the settings off in the first instance,

“would be an automatic shield against people’s ability to explore what they want to explore on the internet”.

According to the Government’s own list, this was arguing for the ability to explore content that abuses, targets or incites hatred against people with protected characteristics, including race and disability. I struggle to understand why protecting this right takes precedence over ensuring that groups of people with protected characteristics are, well, protected. That is our responsibility. It is precedence, because switching controls one way is not exactly the same as switching them the other way. It is easy to think so, but the noble Baroness, Lady Parminter, explained very clearly that it is not the same. It is undoubtedly easier for someone in good health and without mental or physical disabilities to switch controls off than it is for those with disabilities or vulnerabilities to switch them on. That is self-evident.

It cannot be right that those most at risk of being targeted online, including some disabled people—not all, as we have heard—and those with other protected characteristics, will have the onus on them to switch on the tools to prevent them seeing and experiencing harm. There is a real risk that those who are meant to benefit from user empowerment tools, those groups at higher risk of online harm, including people with a learning disability, will not be able to access the tools because the duties allow category 1 services to design their own user empowerment tools. This means that we are likely to see as many versions of user empowerment tools as there are category 1 services to which this duty applies.

Given what we know about the nature of addiction and self-harm, which has already been very eloquently explained, it surely cannot be the intention of the Bill that those people who are in crisis and vulnerable to eating disorders or self-harm, for example, will be required to seek and activate a set of tools to turn off the very material that feeds their addiction or encourages their appetite for self-harm.

The approach in the Bill does little to prevent people spiralling down this rabbit hole towards ever more harmful content. Indeed, instead it requires people to know that they are approaching a crisis point, and to have sufficient levels of resilience and rationality to locate the switch and turn on the tools that will protect them. That is not how the irrational or distressed mind works.

So, all the evidence that we have about the existence of harm which arises from mental states, which has been so eloquently set out in introducing the amendments— I refer again to my noble friend Lady Parminter, because that is such powerful evidence—tips the balance in favour, I believe, of setting the tools to be on by default. I very much hope the Minister will listen and heed the arguments we have heard set out by noble Lords across the Committee, and come back with some of his own amendments on Report.

[Baroness Fox of Buckley (Non-Afl)]

Before the noble Baroness sits down, I wanted to ask for clarification, because I am genuinely confused. When it comes to political rights for adults in terms of their agency, they are rights which we assume are able to be implemented by everyone. But we recognise that in the adult community —this is offline now; I mean in terms of how we understand political rights—there may well be people who lack capacity or are vulnerable, and we take that into account. But we do not generally organise political rights and access to, for example, voting or free speech around the most vulnerable in society. That is not because we are insensitive or inhumane, or do not understand. The moving testimonies we have heard about people with eating disorders and so on are absolutely spot-on accurate. But are we suggesting that the world online should be organised around vulnerable adults, rather than adults and their political rights?

[Baroness Bull (CB)]

I do not have all the answers, but I do think we heard a very powerful point from the right reverend Prelate. In doing the same for everybody, we do not ensure equality. We need to have varying approaches, in order that everybody has equality of access. As the Bill stands, it says nothing about vulnerable adults. It simply assumes that all adults have full capacity, and I think what these amendments seek to do is find a way to recognise that simply thinking about children, and then that everybody aged 18 is absolutely able to take care of themselves and, if I may say, “suck it up”, is not the world we live in. We can surely do better than that.

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[Baroness Fox of Buckley (Non-Afl)]

Just to clarify, in a way we have reduced this debate to whether the default position should be on or off, although in fact that is only one aspect of this. My concern, and what I maybe spent too long talking about, is what happens if we turn the toggles to “on”. The assumption we keep making is that once they are on, we are safe. The difficulty is that the categories of what is filtered out after turning them on are not necessarily what the user thinks they are. I am simply asking how you get around that; otherwise, we think it is too easy—turn it on or off; press the button. Is it not problematic for us all if, in thinking you are going to stop seeing hate, hate turns out actually to be legitimate and interesting political ideas?

[Lord Knight of Weymouth (Lab)]

As ever, the noble Baroness is an important voice in bursting our bubble in the Chamber. I continue to respect her for that. It will not be perfect; there is no perfect answer to all this. I am siding with safety and caution rather than a bit of a free-for-all. Sometimes there might be overcaution and aspects of debate where the platforms, the regulator, the media, and discussion and debate in this Chamber would say, “The toggles have got it wrong”, but we just have to make a judgment about which side we are on. That is what I am looking forward to hearing from the Minister.

These amendments are supported on all sides and by a long list of organisations, as listed by the noble Baroness, Lady Morgan, and the noble Lord, Lord Clement-Jones. The Minister has not conceded very much at all so far to this Committee. We have heard compelling speeches, such as those from the noble Baroness, Lady Parminter, that have reinforced my sense that he needs to give in on this when we come to Report.

I will also speak to my Amendment 38A. I pay tribute to John Penrose MP, who was mentioned by the noble Baroness, Lady Harding, and his work in raising concerns about misinformation and in stimulating discussion outside the Chambers among parliamentarians and others. Following discussions with him and others in the other place, I propose that users of social media should have the option to filter out content the provenance of which cannot be authenticated.

As we know, social media platforms are often awash with content that is unverified, misleading or downright false. This can be particularly problematic when it comes to sensitive or controversial topics such as elections, health or public safety. In these instances, it can be difficult for users to know whether the information presented to them is accurate. Many noble Lords will be familiar with the deep-fake photograph of the Pope in a white puffa jacket that recently went viral, or the use of imagery for propaganda purposes following the Russian invasion of Ukraine.

The Content Authenticity Initiative has created an open industry standard for content authenticity and provenance. Right now, tools such as Adobe Photoshop allow users to turn on content credentials to securely attach provenance data to images and any edits then made to those images. That technology has now been adopted by camera manufacturers such as Leica and Nikon, so the technology is there to do some of this to help give us some reassurance.

Amendment 38A would allow users to filter out unverified content and is designed to flag posts or articles that do not come from a reliable source or have not been independently verified by a reputable third party. Users could then choose to ignore or filter out such content, ensuring that they are exposed only to information that has been vetted and verified. This would not only help users to make more informed decisions but help to combat the spread of false information on social media platforms. By giving users the power to filter out unverified content, we can help to ensure that social media platforms are not used to spread harmful disinformation or misinformation.

Amendments 42 and 45, in the name of my noble friend Lord Stevenson, are good and straightforward improvements to the Bill, suggesting that Clause 12(11) should include all the protected characteristics in the Equality Act 2010. I listened closely to the argument of the noble Baroness, Lady Buscombe, about listing the various characteristics, but I think it makes much more sense to do what my noble friend is suggesting and just reference the Equality Act. If we chose separately to amend the Equality Act to change protected characteristics, that change would then flow through into this Bill. That seems to be a much more sensible and pragmatic way to proceed. Similarly, in Amendment 45 my noble friend is suggesting that consideration should be given by the Secretary of State as to whether any of these tools should also be available to child users, and we have heard good arguments in favour of that when it comes to dealing with the cliff-edge effect, as described by the noble Baroness, Lady Kidron.

Lastly—and, perhaps the Committee will forgive me, slightly bizarrely—Amendment 283ZA, in the name of the noble Baroness, Lady Fox, to Clause 170(7) in Part 11 invites us to consider, among other things, whether a bot can act reasonably. Given that self-coding bots are now technically possible, I would be fascinated to hear the Minister’s view on whether an autonomous bot can have reason. I asked ChatGPT this question. For the help of the Committee, it replied:

“As an artificial intelligence language model, I do not have consciousness or emotions, and therefore, I do not have a capacity for ‘reason’ in the way that humans understand it. However, I am programmed to use advanced algorithms that allow me to process and analyze large amounts of data, recognize patterns, and provide reasoned responses based on the information available to me. This allows me to simulate a form of reasoning, but it is important to note that it is not the same as human reasoning, as I do not have subjective experiences or personal biases. Ultimately, my abilities are limited to the algorithms and data that have been programmed into my system, and I cannot generate my own subjective experiences or judgments.”


That is the view of the algorithm as to whether or not bots can have reason. I look forward to the Minister’s response.

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[Lord Parkinson of Whitley Bay (Con)]

The content which we have added to Clause 12 is a targeted approach. It reflects input from a wide range of interested parties, with whom we have discussed this, on the areas of content that users are most concerned about. The other protected characteristics that do not appear are, for instance, somebody’s marriage or civil partnership status or whether they are pregnant. We have focused on the areas where there is the greatest need for users to be offered the choice about reducing their exposure to types of content because of the abuse they may get from it. This recognises the importance of clear, enforceable and technically feasible duties. As I said a moment ago in relation to the point made by my noble friend Lady Buscombe, we will keep it under review but it is right that these provisions be debated at length—greater length than I think the Equality Bill was, but that was long before my time in your Lordships’ House, so I defer to the noble Lord’s experience and I am grateful that we are debating them thoroughly today.

I will move now, if I may, to discuss Amendments 43 and 283ZA, tabled by the noble Baroness, Lady Fox of Buckley. Amendment 43 aims to ensure that the user empowerment content features do not capture legitimate debate and discussion, specifically relating to the characteristics set out in subsections (11) and (12). Similarly, her Amendment 283ZA aims to ensure that category 1 services apply the features to content only when they have reasonable grounds to infer that it is user empowerment content.

With regard to both amendments, I can reassure the noble Baroness that upholding users’ rights to free expression is an integral principle of the Bill and it has been accounted for in drafting these duties. We have taken steps to ensure that legitimate online discussion or criticism will not be affected, and that companies make an appropriate judgment on the nature of the content in question. We have done this by setting high thresholds for inclusion in the content categories and through further clarification in the Bill’s Explanatory Notes, which I know she has consulted as well. However, the definition here deliberately sets a high threshold. By targeting only abuse and incitement to hatred, it will avoid capturing content which is merely challenging or robust discussion on controversial topics. Further clarity on definitions will be provided by Ofcom through regulatory guidance, on which it will be required to consult. That will sit alongside Ofcom’s code of practice, which will set out the steps companies can take to fulfil their duties.

[Baroness Fox of Buckley (Non-Afl)]

I appreciate the Minister’s comments but, as I have tried to indicate, incitement to hatred and abuse, despite people thinking they know what those words mean, is causing huge difficulty legally and in institutions throughout the land. Ofcom will have its work cut out, but it was entirely for that reason that I tabled this amendment. There needs to be an even higher threshold, and this needs to be carefully thought through.

[Lord Parkinson of Whitley Bay (Con)]

But as I think the noble Baroness understands from that reference, this is a definition already in statute, and with which Parliament and the courts are already engaged.

The Bill’s overarching freedom of expression duties also apply to Clause 12. Subsections (4) to (7) of Clause 18 stipulate that category 1 service providers are required to assess the impact on free expression from their safety policies, including the user empowerment features. This is in addition to the duties in Clause 18(2), which requires all user-to-user services to have particular regard to the importance of protecting freedom of expression when complying with their duties. The noble Baroness’s Amendment 283ZA would require category 1 providers to make judgments on user empowerment content to a similar standard required for illegal content. That would be disproportionate. Clause 170 already specifies how providers must make judgments about whether content is of a particular kind, and therefore in scope of the user empowerment duties. This includes making their judgment based on “all relevant information”. As such, the Bill already ensures that the user empowerment content features will be applied in a proportionate way that will not undermine free speech or hinder legitimate debate online.

Amendment 45, tabled by the noble Lord, Lord Stevenson of Balmacara, would require the Secretary of State to lay a Statement before Parliament outlining whether any of the user empowerment duties should be applied to children. I recognise the significant interest that noble Lords have in applying the Clause 12 duties to children. The Bill already places comprehensive requirements on Part 3 services which children are likely to access. This includes undertaking regular risk assessments of such services, protecting children from harmful content and activity, and putting in place age-appropriate protections. If there is a risk that children will encounter harm, such as self-harm content or through unknown or unverified users contacting them, service providers will need to put in place age- appropriate safety measures. Applying the user empowerment duties for child users runs counter to the Bill’s child safety objectives and may weaken the protections for children—for instance, by giving children an option to see content which is harmful to them or to engage with unknown, unverified users. While we recognise the concerns in this area, for the reasons I have set out, the Government do not agree with the need for this amendment.

I will resist the challenge of the noble Lord, Lord Knight, to talk about bots because I look forward to returning to that in discussing the amendments on future-proofing. With that, I invite noble Lords—

Online Safety Bill

Baroness Fox of Buckley Excerpts

Committee stage
Tuesday 2nd May 2023 Lords Chamber

[Lord Curry of Kirkharle (CB)]

My Lords, in view of the hour, I will be brief, and I have no interests to declare other than that I have grandchildren. I rise to speak to a number of amendments tabled in my name in this group: Amendments 216A to 216C, 218ZZA to 218ZD and 218BA to 218BC. I do not think I have ever achieved such a comprehensive view of the alphabet in a number of amendments.

These amendments carry a simple message: Ofcom must act decisively and quickly. I have tabled them out of a deep concern that the Bill does not specify timescales or obligations within which Ofcom is required to act. It leaves Ofcom, as the regulator, with huge flexibility and discretion as to when it must take action; some action, indeed, could go on for years.

Phrases such as

“OFCOM may vary a confirmation decision”

or it

“may apply to the court for an order”

are not strong enough, in my view. If unsuitable or harmful material is populating social media sites, the regulator must take action. There is no sense of urgency within the drafting of the Bill. If contravention is taking place, action needs to be taken very quickly. If Ofcom delays taking an action, the harmful influence will continue. If the providers of services know that the regulator will clamp down quickly and severely on those who contravene, they are more likely to comply in the first place.

I was very taken by the earlier comments of the noble Baroness, Lady Harding, about putting additional burdens on Ofcom. These amendments are not designed to put additional burdens on Ofcom; indeed, the noble Lord, Lord Knight, referred to the fact that, for six years, I chaired the Better Regulation Executive. It was my experience that regulators that had a reputation for acting quickly and decisively, and being tough, had a much more compliant base as a consequence.

Noble Lords will be pleased to hear that I do not intend to go through each individual amendment. They all have a single purpose: to require the regulator—in this case, Ofcom—to act when necessary, as quickly as possible within specified timescales; and to toughen up the Bill to reduce the risk of continuous harmful content being promoted on social media.

I hope that the Minister will take these comments in the spirit in which they are intended. They are designed to help Ofcom and to help reduce the continuous adverse influence that many of these companies will propagate if they do not think they will be regulated severely.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I understand that, for legislation to have any meaning, it has to have some teeth and you have to be able to enforce it; otherwise, it is a waste of time, especially with something as important as the legislation that we are discussing here.

I am a bit troubled by a number of the themes in these amendments and I therefore want to ask some questions. I saw that the Government had tabled these amendments on senior manager liability, then I read amendments from both the noble Lord, Lord Bethell, and the Labour Party, the Opposition. It seemed to me that even more people would be held liable and responsible as a result. I suppose I have a dread that—even with the supply chain amendment—this means that lots of people are going to be sacked. It seems to me that this might spiral dangerously out of control and everybody could get caught up in a kind of blame game.

I appreciate that I might not have understood, so this is a genuine attempt to do so. I am concerned that these new amendments will force senior managers and, indeed, officers and staff to take an extremely risk-averse approach to content moderation. They now have not only to cover their own backs but to avoid jail. One of my concerns has always been that this will lead to the over-removal of legal speech, and more censorship, so that is a question I would like to ask.

I also want to know how noble Lords think this will lie in relation to the UK being a science and technology superpower. Understandably, some people have argued that these amendments are making the UK a hostile environment for digital investment, and there is something to be balanced up there. Is there a risk that this will lead to the withdrawal of services from the UK? Will it make working for these companies unattractive to British staff? We have already heard that Jimmy Wales has vowed that the Wikimedia foundation will not scrutinise posts in the way demanded by the Bill. Is he going to be thrown in prison, or will Wikipedia pull out? How do we get the balance right?

What is the criminal offence that has a threat of a prison sentence? I might have misunderstood, but a technology company manager could fail to prevent a child or young person encountering legal but none the less allegedly harmful speech, be considered in breach of these amendments and get sent to prison. We have to be very careful that we understand what this harmful speech is, as we discussed previously. The threshold for harm, which encompasses physical and psychological harm, is vast and could mean people going to prison without the precise criminal offence being clear. We talked previously about VPNs. If a tech savvy 17-year-old uses a VPN and accesses some of this harmful material, will someone potentially be criminally liable for that young person getting around the law, find themselves accused of dereliction of duty and become a criminal?

My final question is on penalties. When I was looking at this Bill originally and heard about the eye-watering fines that some Silicon Valley companies might face, I thought, “That will destroy them”. Of course, to them it is the mere blink of an eye, and I do get that. This indicates to me, given the endless conversations we have had on whether size matters, that in this instance size does matter. The same kind of liabilities will be imposed not just on the big Silicon Valley monsters that can bear these fines, but on Mumsnet—or am I missing something? Mumsnet might not be the correct example, but could not smaller platforms face similar liabilities if a young person inadvertently encounters harmful material? It is not all malign people trying to do this; my unintended consequence argument is that I do not want to create criminals when a crime is not really being committed. It is a moral dilemma, and I do understand the issue of enforcement.

[Baroness Harding of Winscombe (Con)]

I rise very much to support the comments of my noble friend Lord Bethell and, like him, to thank the Minister for bringing forward the government amendments. I will try to address some of the comments the noble Baroness, Lady Fox, has just made.

One must view this as an exercise in working out how one drives culture change in some of the biggest and most powerful organisations in the world. Culture change is really hard. It is hard enough in a company of 10 people, let alone in a company with hundreds of thousands of employees across the world that has more money than a single country. That is what this Bill requires these enormous companies to do: to change the way they operate when they are looking at an inevitably congested, contested technology pipeline, by which I mean—to translate that out of tech speak—they have more work to do than even they can cope with. Every technology company, big or small, always has this problem: more good ideas than their technologists can cope with. They have to prioritise what to fix and what to implement. For the last 15 years, digital companies have prioritised things that drive income, but not the safety of our children. That requires a culture change from the top of the company.

Online Safety Bill

Baroness Fox of Buckley Excerpts

Committee stage
Tuesday 2nd May 2023 Lords Chamber

Again, I say to my noble friend Lord Moylan—who I encourage to keep going with his scepticism about the Bill; it is important—that it is a bit of a dead end at any point in his argument to compare us with China. That is genuinely comparing apples with oranges. When people were resisting regulation in this sphere, they would always say, “That’s what the Chinese want”. We have broadcasting regulation and other forms of health and safety regulation. It is not the mark of an autocratic or totalitarian state to have regulation; platforms need to be held to account. I simply ask the proponents of the amendments to make it clear as they proceed how this fits in with existing regulations, such as the age-appropriate design code.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I want, apart from anything else, to speak in defence of philosophical ruminations. The only way we can scrutinise the amendments in Committee is to do a bit of philosophical rumination. We are trying to work out what the amendments might mean in terms of changing the Bill.

I read these amendments, noted their use of “eliminate” —we have to “eliminate” all risks—and wondered what that would mean. I do not want to feel that I cannot ask these kinds of difficult questions for fear that I will offend a particular group or that it would be insensitive to a particular group of parents. It is difficult but we are required as legislators to try to understand what each other are trying to change, or how we are going to try to change the law.

I say to those who have put “eliminate” prominently in a number of these amendments that it is impossible to eliminate all risks to children—is it not?—if they are to have access to the online world, unless you ban them from the platforms completely. Is “eliminate” really helpful here?

Previously in Committee, I talked a lot about the potential dangers, psychologically and with respect to development, of overcoddling young people, of cotton wool kids, and so on. I noted an article over the weekend by the science journalist Tom Chivers, which included arguments from the Oxford Internet Institute and various psychologists that the evidence on whether social media is harmful, particularly for teenagers, is ambiguous.

I am very convinced by the examples brought forward by the noble Baroness, Lady Kidron—and I too wish her a happy birthday. We all know about the targeting of young people and so forth, but I am also aware of the positives. I always try to balance these things out and make sure that we do not deny young people access to the positives. In fact, I found myself cheering at the next group of amendments, which is unusual. First, they depend on whether you are four or 14—in other words, you have to be age-specific—and, secondly, they recognise that we do not want to pass anything in the Bill that actually denies children access to either their own privacy or the capacity to know more.

I also wanted to explore a little the idea of expanding the debate away from content to systems, because this is something that I think I am not quite understanding. My problem is that moving away from the discussion on whether content is removed or accessible, and focusing on systems, does not mean that content is not in scope. My worry is that the systems will have an impact on what content is available.

Let me give some examples of things that can become difficult if we think that we do not want young people to encounter violence and nudity—which makes it seem as though we know what we are talking about when we talk about “harmful”. We will all recall that, in 2018, Facebook removed content from the Anne Frank Centre posted by civil rights organisations because it included photographs of the Holocaust featuring undressed children among the victims. Facebook apologised afterwards. None the less, my worry is these kinds of things happening. Another example, in 2016, was the removal of the Pulitzer Prize-winning photograph “The Terror of War”, featuring fleeing Vietnamese napalm victims in the 1970s, because the system thought it was something dodgy, given that the photo was of a naked child fleeing.

I need to understand how system changes will not deprive young people of important educational information such as that. That is what I am trying to distinguish. The point made by the noble Lord, Lord Moylan, about “harmful” not being defined—I have endlessly gone on about this, and will talk more about it later—is difficult because we think that we know what we mean by “harmful” content.

Finally, on the amendments requiring compliance with Ofcom codes of practice, that would give an extraordinary amount of power to the regulator and the Secretary of State. Since I have been in this place, people have rightly drawn my attention to the dangers of delegating power to the Executive or away from any kind of oversight—there has been fantastic debate and discussion about that. It seems to me that these amendments advocate delegated powers being given to the Secretary of State and Ofcom, an unelected body —the Secretary of State could amend for reasons of public policy in order to protect children—and this is to be put through the negative procedure. In any other instance, I would have expected outcry from the usual suspects, but, because it involves children, we are not supposed to object. I worry that we need to have more scrutiny of such amendments and not less, because in the name of protecting children unintended consequences can occur.

[Baroness Kidron (CB)]

I want to answer the point that amendments cannot be seen in isolation. Noble Lords will remember that we had a long and good debate about what constituted harms to children. There was a big argument and the Minister made some warm noises in relation to putting harms to children in the Bill. There is some alignment between many people in the Chamber whereby we and Parliament would like to determine what harm is, and I very much share the noble Baroness’s concern about pointing out what that is.

On the issue of the system versus the content, I am not sure that this is the exact moment but the idea of unintended consequences keeps getting thrown up when we talk about trying to point the finger at what creates harm. There are unintended consequences now, except neither Ofcom nor the Secretary of State or Parliament but only the tech sector has a say in what the unintended consequences are. As someone who has been bungee jumping, I am deeply grateful that there are very strict rules under which that is allowed to happen.

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I welcome many of these amendments. I found reading them slightly more refreshing than the more dystopian images we have had previously. It is quite exciting, actually, because the noble Baroness, Lady Harding, sounded quite upbeat, which is in contrast to previous contributions on what the online world is like.

I want to defend the noble Baroness, Lady Bennett of Manor Castle, from the intervention that suggested that she was going off topic, because the truth is that these amendments are calling for children’s rights to be introduced into legislation via this Bill. I disagree with that, but we should at least talk about it if it is in the amendments.

Whereas I like the spirit of the amendments, it seems to me that children’s rights, which I consider to have huge constitutional implications, require a proper Bill to bring them in and not to be latched on to this one. My concern is that children’s rights can be used to undermine adult authority and are regularly cited as a way of undermining parents’ rights, and that children under 18 cannot enact political rights. Whether they have agency or capacity, they are not legally able to exercise their political rights, and therefore someone has to act on their behalf as an intermediary—as a third party—which is why it can become such a difficult, politicised area.

I say that because it would be a fascinating discussion to have. I do not think this is the Bill to have it on, but the spirit of the amendments raises issues that we should bear in mind for the rest of our discussion. During lockdown, we as a society stopped young people having any social interaction at all. They were isolated, and a lot of new reports suggest that young people’s mental health has suffered because they were on their own. They went online and, in many instances, it kept them sane. That is probably true not just of young people but of the rest of us, by the way, but I am making the point that it was not all bad.

Over recent years, as we have been concerned about children’s safety and protecting them, we have discouraged them from roaming far from home. They do not go out on their bikes or run around all the time; they are told, “Come back home, you’ll be safe”. Of course, they have gone into their room and gone online, and now we say, “That’s not safe either”.

I want to acknowledge that the online world has helped young people overcome the problems of isolation and lack of community that the adult world has sometimes denied them developing. That is important: it can be a source of support and solidarity. Children need spaces to talk, engage and interact with friends, mates, colleagues and so on where they can push boundaries, and all sorts of things, without grown-ups interfering. That is what we have always understood from child development. It is why you do not have spies wandering around all the time following them.

The main thing is that we know the difference between a four year-old and a 14 year-old. In the Bill, we call a child anyone under 18, but I was glad that the amendments acknowledge that distinction in terms of appropriateness is important. When young people are online, or if they are involved in encrypted messages, such as WhatsApp, that does not mean they are all planning to join county lines or are being groomed—it is not all dodgy. Appropriateness in terms of child age and not always imagining that the worst is happening are an important counter that these amendments bring to some of the pessimism that we have heard until now.

The noble Lord, Lord Russell, said that children’s rights are not mentioned in the Bill but freedom of expression has been mentioned 49 times. First, it is not a Bill about children’s rights, but when he says that freedom of expression has been mentioned 49 times, I assure him that quantity is not quality and the mention of it means nothing.

[Baroness Harding of Winscombe (Con)]

I want to challenge the noble Baroness’s assertion that the Bill is not about children’s rights. Anyone who has a teenage child knows that their right to access the internet is keenly held and fought out in every household in the country.

[Baroness Fox of Buckley (Non-Afl)]

The quip works, but political rights are not quips. Political rights have responsibilities, and so on. If we gave children rights, they would not be dependent on adults and adult society. Therefore, it is a debate; it is a row about what our rights are. Guess what. It is a philosophical row that has been going on all around the world. I am just suggesting that this is not the place—

[Baroness Bennett of Manor Castle (GP)]

I am sorry, but I must point out that 16 and 17 year-olds in Scotland and Wales have the vote. That is a political right.

[Baroness Fox of Buckley (Non-Afl)]

And it has been highly contentious whether the right to vote gives them independence. For example, you would still be accused of child exploitation if you did anything to a person under 18 in Scotland or Wales. In fact, if you were to tap someone and it was seen as slapping in Scotland and they were 17, you would be in trouble. Anyway, it should not be in this Bill. That is my point.

[Baroness Finlay of Llandaff (CB)]

My Lords, perhaps I may intervene briefly, because Scotland and Wales have already been mentioned. My perception of the Bill is that we are trying to build something fit for the future, and therefore we need some broad underlying principles. I remind the Committee that the Well-being of Future Generations Act (Wales) Act set a tone, and that tone has run through all aspects of society even more extensively than people imagined in protecting the next generation. As I have read them, these amendments set a tone to which I find it difficult to understand why anyone would object, given that that is a core principle, as I understood it, behind building in future-proofing that will protect children, among others.