Online Safety Bill

Baroness Kennedy of Shaws Excerpts

3rd reading
Wednesday 6th September 2023 Lords Chamber

Having said that, we certainly welcome these changes. They are an improvement as a result of our debate and scrutiny on Report.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I, too, join noble Lords in thanking the Minister for the way in which he has addressed my concerns about aspects of the Bill and has wanted to enhance particularly the protection of women and girls from the kind of threats that they experience online. I really feel that the Minister has been exemplary in the way in which he has interacted with everyone in this House who has wanted to improve the Bill and has come to him with good will. He has listened and his team have been absolutely outstanding in the work that they have done. I express my gratitude to him.

[Viscount Colville of Culross (CB)]

My Lords, I, too, thank the Minister for the great improvements that the Government have made to the Secretary of State’s powers in the Bill during its passage through this House. I rise to speak briefly today to praise the Government’s new Amendments 1 and 2 to Clause 44. As a journalist, I was worried by the lack of transparency around these powers in the clause; I am glad that the lessons of Section 94 of the Telecommunications Act 1984, which had to be rescinded, have been learned. In a world of conspiracy theories that can be damaging to public trust and governmental and regulatory process, it has never been more important that Parliament and the public are informed about the actions of government when giving directions to Ofcom about the draft codes of practice. So I am glad that these new amendments resolve those concerns.

Online Safety Bill

Baroness Kennedy of Shaws Excerpts

Report stage
Thursday 6th July 2023 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, Amendments 3 to 5 to Clause 164 are in my name. They relate to a matter that I raised in Committee: threats of a more indirect nature. As I explained at that time, I chaired an inquiry in Scotland into misogyny and the manifestations of deeply unpleasant behaviour that women experience, some of it in the public arena and some of it online.

Based on that experience, I came to realise that many women who are parliamentarians, are in local authorities, head up NGOs or are journalists and, for some reason, annoy or irritate certain users of social media in any way receive horrible threats. We know about those from the ugly nature of the threats that Diane Abbott and many women parliamentarians have received. Sometimes, the person making the threat does not directly say, “I’m going to rape you”—although sometimes they do: Joanna Cherry, a Scottish Member of Parliament here in Westminster, received a direct threat of rape and the person who threatened was convicted under the Communications Act. Very often, threats of rape, death or disfigurement sound like, “You think you’re so pretty. We can fix that. Somebody should fix that”. It is the indirect nature of the threat that provides comfort to the person making it. They imagine that they cannot be prosecuted because they are not saying that they will do it; they are saying, “Somebody should rape you. Somebody should just eliminate you. Somebody should take that smile off your face; a bit of acid could do it”. That is how many of the threats presented by witnesses to the inquiry—we saw them on their phones and computers—were made; they were of an indirect nature.

One woman in my own chambers is acting for Jimmy Lai, the Hong Kong publisher who is currently in custody awaiting trial under the national security law. She has received death threats, threats against her children and threats of rape. I do not imagine that we can inhibit what is done by people under the auspices of the Chinese Government with this legislation; all I can say is that these sorts of threats are experienced by many women and are not always of a direct nature so the law often does not encapsulate them. I am seeking to introduce some way in which we could, through careful drafting, cover the possibilities.

Take someone such as Andrew Tate: he is a good example of someone with a massive following who clearly puts out to boys and young men horrible ideas about how women should be treated, much of which involve detriments to women. As has been described by others in this House, a pile-on happens in relation to this. Women do not just receive a message saying, “Somebody should rape you”; they receive thousands of messages from the followers of the contributor and communicator.

I have had the benefit of meeting the ministerial team. I am grateful to the Minister and his team, including the lawyers who advise him. We sought a way of dealing with this issue. I particularly wanted to include specific mention of “rape, disfigurement or other” in terms of threats because, in the language of statutes, they are sometimes missed by young junior prosecutors or young policemen. When they see messaging and women come forward with complaints, they do not automatically think that the threat is covered because of the rather oblique nature of statutory language. I wanted it really spelled out, with rape and disfigurement specifically included in my amendment. However, I am persuaded that this issue was in the minds of those who drafted this Bill.

I am pleased that it has been recognised that this specific issue is of a different nature when it is applied to women and girls. It is happening in schools and universities. Young women put their heads above the parapet—they express a view about feminism or describe the fact that they are a lesbian—then, suddenly, they receive a whole range of horrible insults, abuse and threats on social media. I am mindful of the contribution made by the noble Baroness, Lady Fox, in Committee. She was concerned, in essence, about people being rather wet about this and how this measure would inhibit free speech; really, it was about protecting rather gentle feelings. However, that is not what this is about. It is about threats of serious behaviour and serious conduct towards women. The indirect nature of it is not something that should put us off attempting to have law to deal with it.

As I said, I have had an opportunity to meet the ministerial team. We came to the conclusion that we might be able to insert something covering the fact that the carrying out of the threat could be done by persons other than the person who is sending the message. That is the important thing: women receiving these messages saying, “Somebody should rape you”, know that the message is carefully drafted in that way by the Andrew Tates of this world because they imagine that the police cannot then do anything about it, but they also know that these people have followers who may well decide to carry out the suggestion. It is really important that we find a way to deal with this.

As a result of our discussions, I hope that the House will see that this issue is something that we must deal with in this Bill because the opportunity will not come again. This is happening day in, day out to girls and women. If we are going to send a message about what is unacceptable, it is important that the law declares what is unacceptable. These threats are serious, as is the way in which women then have to change their lives. They stop staying out late. They worry about being in places where they might be subjected to some of these threats. They start limiting their behaviour.

Just earlier this morning, someone told me that his niece was a member of a football team’s fan club and had been elected to the board. She suddenly received a whole range of threats from men who felt that no woman should be in that position. She received a pile-on of a horrible kind, and said to her uncle that she wanted to step down and did not want to be on the board if she was going to receive that kind of messaging.

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[Lord Parkinson of Whitley Bay (Con)]

It is about the burden on the medical professionals and the question of whether it comes to court when the police investigate it and the prosecution make out. We do not want to see that sort of behaviour being overly criminalised or the risk of prosecution hanging over people for reasons where it is not needed. We want to make sure that the offence is focused on the behaviour that we all want to tackle here.

The Law Commission has looked at this extensively—and I am glad the noble Baroness has had the opportunity to speak to it directly—and brought forward these proposals, which mirror the offence of flashing that already exists in criminal law. We think that is the right way of doing it and not risking the overcriminalisation of those whom noble Lords would not want to capture.

Contrary to some concerns that have been expressed, the onus is never on the victim to marshal evidence or prove the intent of the perpetrator. It is for the police and the Crown Prosecution Service when investigating the alleged offence or prosecuting the case in court. That is why we and the Law Commission consulted the police and the CPS extensively in bringing the offence forward.

By contrast, as I say, the consent-based approach is more likely to put onerous pressure on the victim by focusing the case on his or her behaviour and sexual history instead of the behaviour of the perpetrator. I know and can tell from the interjections that noble Lords still have some concerns or questions about this offence as drafted. I reassure them, as my noble friend Lady Morgan of Cotes urged, that we will be actively monitoring and reviewing the implementation of this offence, along with the Crown Prosecution Service and the police, to ensure that it is working effectively and bringing perpetrators to justice.

The noble Baroness, Lady Burt, also raised the importance of public engagement and education in this regard. As she may know, the Government have a long-term campaign to tackle violence against women and girls. The Enough campaign covers a range of online and offline forms of abuse, including cyberflashing. The campaign includes engaging with the public to deepen understanding of this offence. It focuses on educating young people about healthy relationships, on targeting perpetrators and on ensuring that victims of violence against women and girls can access support. Future phases of the Enough campaign will continue to highlight the abusive nature and unacceptability of these behaviours, and methods for people safely to challenge them.

In addition, in our tackling violence against women and girls strategy the Government have committed to invest £3 million better to understand what works to prevent violence against women and girls, to invest in high-quality, evidence-informed prevention projects, including in schools, aiming to educate and inform children and young people about violence against women and girls, healthy relationships and the consequences of abuse.

With that commitment to keep this under review—to ensure that it is working in the way that the Law Commission and the Government hope and expect it to—and with that explanation of the way we will be encouraging the public to know about the protections that are there through the law and more broadly, I hope noble Lords will be reassured and will not press their amendments.

[Baroness Kennedy of The Shaws (Lab)]

Before the Minister sits down, I express my gratitude that he has indicated that my amendment would have some serious impact. I thank the noble Lord, Lord Clement-Jones, for saying that there should be some learning among men in the House and in wider society about what puts real fear in the hearts of women and how it affects how women conduct their lives. I thank those who said that some change is necessary.

We have to remember that this clause covers a threatening communications offence. I know that something is going to be said about the particular vulnerability of women and girls—the noble Baroness, Lady Morgan, mentioned it, and I am grateful for that—but this offence is not specific to one gender. It is a general offence that someone commits if a message they send conveys a threat of death or serious harm.

I reassure the noble Baroness, Lady Fox, that we are not talking about a slight—saying to a woman that she is ugly or something. This is not about insults but about serious threats. The business about it being reckless as to whether or not it is going to be carried out is vital. Clause 164(1)(c)(i) says an offence is committed if it is intended that an individual encountering the message would fear that the threat would be carried out. I would like to see added the words, “whether or not by the person sending the message”.

Just think of this in the Irish context of years gone by. If someone sent a message saying, “You should be kneecapped”, it is very clear that we would be talking about something that would put someone in terror and fear. It is a serious fear, so I am glad that this is supported by the Minister, and I hope we will progress it to the next stage.

[Lord Harlech (Con)]

My Lords, without wishing to disrupt the very good nature of this debate, I remind the House that the Companion advises against speaking more than once on Report, except for specific questions or points of elucidation.

[Lord Parkinson of Whitley Bay (Con)]

None the less, I am grateful to the noble Baroness for her clarification and expansion of this point. I am glad that she is satisfied with the approach we have set out.

[Baroness Kennedy of The Shaws (Lab)]

It is not specific to women; it is general.

[Lord Parkinson of Whitley Bay (Con)]

The issue the noble Baroness has highlighted will protect all victims against people trying to evade the law, and I am grateful to her. We will bring forward an amendment at Third Reading.

Online Safety Bill

Baroness Kennedy of Shaws Excerpts

Committee stage
Thursday 22nd June 2023 Lords Chamber

The core question that motivates the second amendment is that of what the Government think we might do if there are individuals who are not user-to-user or search services and are therefore outside the regulated bucket, who persistently and deliberately breach this new offence of encouragement to self-harm and yet are outside the UK jurisdiction. I hope the Minister agrees that something should be done about that scenario, and I look forward to hearing his suggestion about what may be done.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I have two amendments in this grouping. I am afraid that I did not have time to get others to put their names to them, but I hope that they will find some support in this Committee.

For almost the whole of 2021, I chaired an inquiry in Scotland into misogyny. It was about the fact that many complaints were being made to the devolved Government in Scotland about women’s experiences not just of online harassment but of the disinhibition that the internet and social media have given people to be abusive online now also visiting the public square. Many people described the ways in which they are publicly harassed. I know that concerns people in this House too.

When I came to the Bill, I was concerned about something that became part of the evidence we heard. It is no different down here from in Scotland. As we know, many women—I say women, but men receive harassment online too—are sent really vicious, vile things. We all know of parliamentarians and journalists who have received them, their lives made a misery by threats to rape and kill and people saying, “Go and kill yourself”. There are also threats of disfigurement—“Somebody should take that smile off your face”—and suggestions that an acid attack be carried out on someone.

In hearing that evidence, it was interesting that some of the forms of threat are not direct in the way that criminal law normally works; they are indirect. They are not saying, “I’m going to come and rape you”. Sometimes they say that, but a lot of the time they say, “Somebody should rape you”; “You should be raped”; “You deserve to be raped”; “You should be dead”; “Somebody should take you out”; “You should be disfigured”; “Somebody should take that smile off your face, and a bit of acid will do it”. They are not saying, “I’m going to come and do it”, in which case the police go round and, if the person is identifiable, make an arrest—as happened with Joanna Cherry, the Scottish MP, for example, who had a direct threat of rape, and the person was ultimately charged under the Communications Act.

Our review of the kinds of threat taking place showed that it was increasingly this indirect form of threat, which has a hugely chilling effect on women. It creates fear and life changes, because women think that some follower of this person might come and do what is suggested and throw acid at them as they are coming out of their house, and they start rearranging their lives because of it—because they live in constant anxiety about it. It was shocking to hear the extent to which this is going on.

In the course of the past year, we have all become much more familiar with Andrew Tate. What happens with these things is that, because of the nature of social media and people having big followings, you get the pile-on: an expression with which I was not that familiar in the past but now understand only too well. The pile-on is where, algorithmically, many different commentaries are brought together and suddenly the recipient receives not just one, or five, but thousands of negative and nasty threats and comments. Of course, as a public person in Parliament, or a councillor, you are expected to open up your social media, because that is how people will get in touch with you or comment on the things you are doing, but then you receive thousands of these things. This affects journalists, Members of Parliament, councillors and the leaders of campaigns. For example, it was interesting to hear that people involved in the Covid matters received threats. It affects both men and women, but the sexual nature of the threats to women is horrifying.

The Andrew Tate thing is interesting because only yesterday I saw in the newspapers that part of the charging in Romania is about the way in which, because of his enormous following, and his encouragement of violence towards women, he is being charged, among many other things that are directly about violence to and the rape of women, for his incitement to these behaviours in many of his young male followers. In the report of the inquiry that I conducted, there are a number of recommendations around offences of that sort.

To specifically deal with this business of online threats, my amendments seek to address their indirect nature—not the ones that say, “I’m going to do it”, but the encouragement to others to do it or to create the fear that it will happen—and to look at how the criminal law addresses that.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this has been a broad and mixed group of amendments. I will be moving the amendments in my name, which are part of it. These introduce the new offence of encouraging or assisting serious self-harm and make technical changes to the communications offences. If there can be a statement covering the group and the debate we have had, which I agree has been well informed and useful, it is that this Bill will modernise criminal law for communications online and offline. The new offences will criminalise the most damaging communications while protecting freedom of expression.

Amendments 264A, 266 and 267, tabled by the noble Lord, Lord Clement-Jones, and my noble friend Lady Buscombe, would expand the scope of the false communications offence to add identity theft and financial harm to third parties. I am very grateful to them for raising these issues, and in particular to my noble friend Lady Buscombe for raising the importance of financial harm from fake reviews. This will be addressed through the Digital Markets, Competition and Consumers Bill, which was recently introduced to Parliament. That Bill proposes new powers to address fake and misleading reviews. This will provide greater legal clarity to businesses and consumers. Where fake reviews are posted, it will allow the regulator to take action quickly. The noble Baroness is right to point out the specific scenarios about which she has concern. I hope she will look at that Bill and return to this issue in that context if she feels it does not address her points to her satisfaction.

Identity theft is dealt with by the Fraud Act 2006, which captures those using false identities for their own benefit. It also covers people selling or using stolen personal information, such as banking information and national insurance numbers. Adding identity theft to the communications offences here would duplicate existing law and expand the scope of the offences too broadly. Identity theft, as the noble Lord, Lord Clement-Jones, noted, is better covered by targeted offences rather than communications offences designed to protect victims from psychological and physical harm. The Fraud Act is more targeted and therefore more appropriate for tackling these issues. If we were to add identity theft to Clause 160, we would risk creating confusion for the courts when interpreting the law in these areas—so I hope the noble Lord will be inclined to side with clarity and simplicity.

Amendment 265, tabled by my noble friend Lord Moylan, gives me a second chance to consider his concerns about Clause 160. The Government believe that the clause is necessary and that the threshold of harm strikes the right balance, robustly protecting victims of false communications while maintaining people’s freedom of expression. Removing “psychological” harm from Clause 160 would make the offence too narrow and risk excluding communications that can have a lasting and serious effect on people’s mental well-being.

But psychological harm is only one aspect of Clause 160; all elements of the offence must be met. This includes a person sending a knowingly false message with an intention to cause non-trivial harm, and without reasonable excuse. It has also been tested extensively as part of the Law Commission’s report Modernising Communications Offences, when determining what the threshold of harm should be for this offence. It thus sets a high bar for prosecution, whereby a person cannot be prosecuted solely on the basis of a message causing psychological harm.

The noble Lord, Lord Allan, rightly recalled Section 127 of the Communications Act and the importance of probing issues such as this. I am glad he mentioned the Twitter joke trial—a good friend of mine acted as junior counsel in that case, so I remember it well. I shall spare the blushes of the noble Baroness, Lady Merron, in recalling who the Director of Public Prosecutions was at the time. But it is important that we look at these issues, and I am happy to speak further with my noble friend Lord Moylan and the noble Baroness, Lady Fox, about this and their broader concerns about freedom of expression between now and Report, if they would welcome that.

My noble friend Lord Moylan said that it would be unusual, or novel, to criminalise lying. The offence of fraud by false representation already makes it an offence dishonestly to make a false representation—to breach the ninth commandment—with the intention of making a gain or causing someone else a loss. So, as my noble and learned friend Lord Garnier pointed out, there is a precedent for lies with malicious and harmful intent being criminalised.

Amendments 267AA, 267AB and 268, tabled my noble friend Lady Buscombe and the noble Baroness, Lady Kennedy of The Shaws, take the opposite approach to those I have just discussed, as they significantly lower and expand the threshold of harm in the false and threatening communications offences. The first of these would specify that a threatening communications offence is committed even if someone encountering the message did not fear that the sender specifically would carry out the threat. I am grateful to the noble Baroness for her correspondence on this issue, informed by her work in Scotland. The test here is not whether a message makes a direct threat but whether it conveys a threat—which can certainly cover indirect or implied threats.

I reassure the noble Baroness and other noble Lords that Clause 162 already captures threats of “death or serious harm”, including rape and disfigurement, as well as messages that convey a threat of serious harm, including rape and death threats, or threats of serious injury amounting to grievous bodily harm. If a sender has the relevant intention or recklessness, the message will meet the required threshold. But I was grateful to see my right honourable friend Edward Argar watching our debates earlier, in his capacity as Justice Minister. I mentioned the matter to him and will ensure that his officials have the opportunity to speak to officials in Scotland to look at the work being done with regard to Scots law, and to follow the points that the noble Baroness, Lady Bennett, made about pictures—

[Baroness Kennedy of The Shaws (Lab)]

I am grateful to the Minister. I was not imagining that the formulations that I played with fulfilled all of the requirements. Of course, as a practising lawyer, I am anxious that we do not diminish standards. I thank the noble Baroness, Lady Fox, for raising concerns about freedom of speech, but this is not about telling people that they are unattractive or ugly, which is hurtful enough to many women and can have very deleterious effects on their self-confidence and willingness to be public figures. Actually, I put the bar reasonably high in describing the acts that I was talking about: threats that somebody would kill, rape, bugger or disfigure you, or do whatever to you. That was the shocking thing: the evidence showed that it was often at that high level. It is happening not just to well-known public figures, who can become somewhat inured to this because they can find a way to deal with it; it is happening to schoolgirls and young women in universities, who get these pile-ons as well. We should reckon with the fact that it is happening on a much wider basis than many people understand.

[Lord Parkinson of Whitley Bay (Con)]

Yes, we will ensure that, in looking at this in the context of Scots law, we have the opportunity to see what is being done there and that we are satisfied that all the scenarios are covered. In relation to the noble Baroness’s Amendment 268, the intentional encouragement or assistance of a criminal offence is already captured under Sections 44 to 46 of the Serious Crime Act 2007, so I hope that that satisfies her that that element is covered—but we will certainly look at all of this.

I turn to government Amendment 268AZA, which introduces the new serious self-harm offence, and Amendments 268AZB and 268AZC, tabled by the noble Lords, Lord Allan and Lord Clement-Jones. The Government recognise that there is a gap in the law in relation to the encouragement of non-fatal self-harm. The new offence will apply to anyone carrying out an act which intends to, and is capable of, encouraging or assisting another person seriously to self-harm by means of verbal or electronic communications, publications or correspondence.

I say to the noble Baroness, Lady Finlay of Llandaff, that the new clause inserted by Amendment 268AZA is clear that, when a person sends or publishes a communication that is an offence, it is also clear that, when a person forwards on another person’s communication, that will be an offence too. The new offence will capture only the most serious behaviour and avoid criminalising vulnerable people who share their experiences of self-harm. The preparation of these clauses was informed by extensive consultation with interested groups and campaign bodies. The new offence includes two key elements that constrain the offence to the most culpable offending; namely, that a person’s act must be intended to encourage or assist the serious self-harm of another person and that serious self-harm should amount to grievous bodily harm. If a person does not intend to encourage or assist serious self-harm, as will likely be the case with recovery and supportive material, no offence will be committed. The Law Commission looked at this issue carefully, following evidence from the Samaritans and others, and the implementation will be informed by an ongoing consultation as well.

Online Safety Bill

Baroness Kennedy of Shaws Excerpts

2nd reading
Wednesday 1st February 2023 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I do not think anyone in this House would disagree with the idea that freedom of expression is a very precious freedom. We have only to look around the world to see that authoritarian Governments almost invariably go after free speech as one of the first things that they do. We know that media freedom is a vital part of any democracy, as indeed is the rule of law, but as the noble Lord, Lord Black and the noble Baroness, Lady Chakrabarti, said, law has been pretty absent in this whole arena, even where it could have been used. I am glad that we are now addressing the complicated issue of regulating the internet and these platforms.

I do not want to see journalists’ privacy invaded so that their sources are exposed. I do not want any possible chilling effect on investigative journalism exposing corruption and abuse of power. It is vital to our democracy. However, we have to think very seriously about the kind of regulation that we have been discussing in this House, because it has been part of our tradition. Unlike the United States, we have not fetishised freedom of expression. We have seen that there have to be occasions when we restrict freedom of speech to protect people from serious harm. That is what this discussion today is really about and will be in the course of the Bill.

I declare that I am a trustee of 5Rights, which is the foundation created by the redoubtable noble Baroness, Lady Kidron. As a lawyer who is pretty well versed in the need for law, I have learned so much from her, and I believe that the major priority of this Bill has to be the protection of children. There are still gaps, and when the noble Baroness comes to put her amendments through, I will be there speaking in support of them. I hope that all noble Lords will come onboard, because those gaps definitely still exist.

I want to speak to your Lordships about women, because last year I chaired an inquiry in Scotland into misogyny. It was a very powerful experience to hear from women and women’s organisations about the extent to which women are abused on the internet. It was absolutely overwhelming that these were not only women in councils or parliaments, or women who were journalists or campaigners, but in schools and universities, women were being traduced and abused. Threats to rape, sodomise or sexually assault women, and to facially disfigure them with acid, would take place online and then you would find people piling in. The pile-on is something this House should know about. It is where, because of algorithms and because of people having followers, huge numbers of people then jump on the bandwagon and add their bit of insult and abuse to what has gone before. Or you get “likes”. I once saw a television documentary saying that the man who invented the thumbs-up “like” regrets it to this day because, of course, he now has children and knows how painful that can be. Also, that business of liking is telling women that there are hundreds and thousands of people out there who think that these things should be done to them.

I really regret to say that, of course, it is not policed. There are not prosecutions, or only very rarely, because of the cover of anonymity, which is problematic. We are going to have to discuss this during the course of this Bill because it gives a veil over those who do it. As well as the pile-on, one of the difficulties is—and I say this as a lawyer—the thresholds you have to pass for criminal prosecution. People have learned that you do not say, “I’m going to come and rape you”; they say, “Somebody should rape you. You deserve to be raped.” The message to women, therefore, is not, “I’m coming to get you”, but “Somebody out there just might”. It has an incredible effect on women.

We have to have that in mind when we come to Committee. We have to recognise the urgency, in relation to children particularly, but we also have to be alert to the ways in which women and girls are finding their lives made wretched. They are made fearful because of threats. Prosecutions and criminal prosecutions should be brought more regularly, because if there is anything that will stop this, it will be that. We have to be very vigilant about media freedom—I agree entirely—but we also have to make sure that we keep the Secretary of State out of this. I do not want to see politicians having their fingerprints on it, but the idea of a Joint Committee to monitor the way in which regulation takes place and to watch developments, because technological developments happen so quickly, is a good one.

We have to address algorithms. We heard from the Russell family that, even after Molly Russell had died, there on her technology she was receiving—it was being pushed at her—stuff about suicide, and the child was no longer alive. This is not about soliciting information; this is it being pushed in the direction of people. I urge this House, with all its usual great expertise, to make this Bill the best we can make it, certainly just now; but the priority first and foremost must be children.

Age Assurance (Minimum Standards) Bill [HL]

Baroness Kennedy of Shaws Excerpts

2nd reading
Friday 19th November 2021 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I add to the many tributes to the noble Baroness, Lady Kidron. She is basically reminding us all of our duty to protect the most vulnerable in society. I have the great privilege of sitting on the board of 5Rights, her foundation, which does so much work in this area. I stand in awe of her commitment and the incredible changes she is effecting.

I watched with horror and sadness as the revelations from the Facebook whistleblower unfurled. Frances Haugen, with other brave ex-Silicon Valley employees, confirmed what we all already knew: children are being put in harm’s way by big tech companies that place profit before safety. This is systemic negligence by the technology sector, which for too long has turned a blind eye to children and failed to respond to their rights and needs. It is gross negligence, and I have no doubt that lawyers in law firms in the United States, and probably here, are already looking at potential litigation and class actions. But we do not have time to wait for that. The law moves slowly. Even getting a Bill through this House normally takes a very long time, so I hope the Minister is not going to come back and tell us that the online harms Bill will deal with all this, because we need to do something more urgently.

The world is watching as the United Kingdom Government take the first strides into new legal territory with legislation to tackle online harms. I pay tribute to that; we can expect to debate the details of that Bill in this House in the next few months. The new online safety regime will no doubt make a number of positive changes to the experiences of children online, not only in this country but around the world because we will undoubtedly effect change there too. But those changes will not be felt unless and until services recognise the presence of children to a standard of accuracy laid down by the regulator. The age-assurance standards in this modest Bill seek to fix a problem that should have been fixed long ago: that of identifying children in a way that is private, transparent and secure but also trusted. It is required by existing legislation, as the noble Baroness, Lady Harding, documented, as well as the noble Baroness, Lady Kidron.

I am a barrister, as your Lordships know. I am concerned with preventing children being exposed to illegal activity—heinous acts of violence, hate speech and child sexual exploitation and abuse. However, I also want an online environment that helps children to flourish: to thrive and be free from the pressures of everyday commercial surveillance; to be free from the pressure to look or behave in certain ways; and to avoid routine exposure to content and activity that, as the noble Baroness, Lady Greenfield, just described, they do not have the developmental capacity to navigate. We make these provisions for children in the offline world, with lower speed limits outside schools to protect them and opaque packaging on porn magazines on the top shelves of newsagents. We do all that and accept it as normal in the offline world, so we should be doing the same online.

It is not just parents who want a safer, less adult world for children online. As the noble Baroness, Lady Kidron, described, the children themselves want it too. I remind noble Lords of the promises we have made in this House over and over again. It is time to make good on those promises, and do so with speed, not wait. We must ask ourselves how it is that four in five pornography sites have no form of age-gating whatever, not even a box to ask “Are you over 18?”. How can we sit by while over half of 11 to 13 year-olds who come across pornography do so accidentally and unintentionally? It just pops up. How is it that nearly half of five to 15 year-olds have seen content online that they would rather avoid? Older siblings show it to younger ones, not realising how damaging this stuff is.

I make clear to all your Lordships that, as a lawyer, I frequently engage with libertarians who want less law and, when I first read the Bill, I looked at it with those sorts of eyes. I say pointedly to those who insist that we have to protect privacy and so on: age assurance does not mean identifying everyone who goes online. It does not mean that a pornography site will know the full name, address and inside leg measurements of adult users. It does mean, however, that children will be protected. Most importantly, it does not mean that we give up our hard-won rights to privacy. Age assurance, subject to minimum standards, can—indeed, must—be privacy-preserving and rights-respecting. I say that as a lawyer very much involved in those issues. All age assurance does is allow a service to know that a child is there or, perhaps more accurately, to prevent it pretending that a child is not there. Its value lies not in the act of verifying or estimating age but in the enormous opportunity it brings once children have been recognised.

So, I support the Bill brought by the noble Baroness, Lady Kidron, and I hope that the Government will support it too. It is critical for the safety of children and the privacy of adults that the bar is set by Parliament, not left to self-regulation by the big tech companies. We have to be the institutions that set the age-assurance standard. My time is up. I just want to say that this should be done here and now. I urge the House to support the Bill.

Covid-19: Business Interruption Insurance

Baroness Kennedy of Shaws Excerpts

Tuesday 17th March 2020 Lords Chamber

[Baroness Barran]

My noble friend makes a very important point. A new coronavirus business interruption loan scheme, which is being delivered by the British Business Bank, will launch in a matter of weeks—I cannot give a more precise answer than that—to support businesses to access bank lending and overdrafts. In addition, all businesses and self-employed people who are in financial distress in relation to their outstanding tax liabilities may be eligible to receive support with their tax affairs through the HMRC’s time-to-pay service.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, what might be done about theatres? Only this morning Tamara Rojo, the great ballerina and the leader of English National Ballet, pointed out that unless the Government say that theatres should close, they will have no access to insurance to cover the losses they will incur in having brought companies together and so on. Their insurers are requiring that there is a direction from government that they close in order to protect public health. Is it the Government’s intention to protect our arts, which are so important and which run on very tight margins?

[Baroness Barran]

The noble Baroness makes an important point about the contribution of the arts to this country. The department is extremely aware of that and is proud of our arts and anxious to protect them. On insurance, as I said to the noble Lord, Lord Clement- Jones, the Association of British Insurers has already said that the vast majority of businesses would not be covered in this way. If that is different for theatres, I will write to the noble Baroness. There was also a question about the timeliness of receiving funds in relation to insurance, but the key point is that we are looking at all possible options to support these valued sectors.

BBC and Public Service Broadcasting

Baroness Kennedy of Shaws Excerpts

Thursday 5th March 2020 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, as others have said, media freedom is a foundational value in a democracy. It is rather interesting that this Government, through the Foreign and Commonwealth Office, are at this very time promoting media freedom around the world in a great project which I am involved in. This includes an expert legal panel of lawyers from around the world, and Britain—with Canada and other nations under the umbrella of UNESCO—is promoting media freedom. Yet it causes me some disquiet to say that, at the very same moment, the Government are not engaging with the BBC, trying to limit senior politicians taking part in BBC television debates and limiting their attendance at press conferences. That does not seem to fit with the idea of media freedom that we want to champion.

The BBC is recognised around the world as one of the jewels in the UK’s crown. Here, I disagree with my noble friend who has just spoken, who said, “It’s the one institution that’s admired.”. It is not: our senior judiciary is also admired, but that too is under attack. Our Civil Service is greatly admired, and it is also under attack. We should be worried that these institutions, which are greatly respected around the world, are somehow at the receiving end of the attentions of Mr Cummings and the hard right. It also amuses me that the hard left is a source of great anxiety to many in your Lordships’ House; the hard right should be just as alarming, if not more so.

All Governments get irritated by the BBC, as my noble friend Lady Liddell has said. Of course, the coverage, at times will be an unhappy criticism of those in government, but the current assault on the BBC has a more sinister and calculated provenance than anything that has gone before. Dominic Cummings has been mentioned a number of times and I am sure it will be a great source of delight to him, because we hear in the press that he rather likes being seen as the sinister author of so much that is going on. He is our Steve Bannon, and we should be clear about that. He is an ideologue and has great influence currently, and we can see from his writings what his ideology is. He is someone very much from the fringes politically, but unfortunately, he and others like him of the extreme right wing have captured the castle. Many on the Opposition Benches should be alarmed about that, because of the consequences that may come to pass.

Dominic Cummings and his friend James Frayne, and Frayne’s wife Rachel Wolf, were all part of the think tank New Frontiers Foundation, which has already been mentioned. It has always been opaque regarding the source of its income, as indeed are some of the other organisations around them. Frayne and his wife Rachel Wolf had both worked for extreme right-wing lobbying companies in the United States before they worked with Cummings. They had learned, before any of us even knew about any of this, how to install fake monitors and protesters on social media and how to create online smear apparatus. We should be very clear about what is going on: when he talks about going after the mortal enemy that is the BBC, he really is thinking about the Americanisation of our media ecology —a phrase others have already used.

I call for noble Lords to be alarmed about what is happening. Our institutions are under assault because the Conservative Party, with its long tradition, has been captured by sections of the hard right who want to deconstruct many of the good things about our society that hold us together. It is a scorched earth policy —beware.

Data Protection Bill [HL]

Baroness Kennedy of Shaws Excerpts

Monday 14th May 2018 Lords Chamber

[Lord Black of Brentwood (Con)]

My Lords, standing on one leg will at least ensure my brevity. I declare an interest as deputy chairman of Telegraph Media Group.

I agree entirely with the comments of my noble friend Lord Cormack and the noble Lord, Lord Pannick, about the advisability of sending this amendment back to the House of Commons. Were we to do so, we should remember a few points on the substance of the noble Baroness’s amendment.

First, we should always bear in mind that the amendment would produce yet another inquiry covering the same ground that has been ploughed over not only by the first Leveson inquiry but by three police investigations, at least three Select Committee inquiries, a Joint Committee of this House, the US Department of Justice and, in this country on the question of corporate liability, the DPP. There is little left to uncover.

Secondly, since Leveson reported, there has been a genuine, wholesale change in press regulation. We have moved from a voluntary complaints handling service, chaired by my noble friend Lord Wakeham, to a system of tough, legally enforceable regulation with strong powers of sanction. I say to the noble Lord, Lord Lipsey, that it is those tough legal powers which IPSO possesses that mean there could be no backsliding to the standards of the past.

Thirdly—this an important point we all need to bear in mind—since IPSO introduced a mandatory arbitration scheme in the past few weeks, there are virtually no lawful recommendations of Leveson that have not been introduced. It has produced a sea change in how newspapers are run, managed and deal with complaints, and in how journalists are trained and monitored.

Fourthly, since the first Leveson inquiry, the situation facing the press has changed dramatically. I note the noble Baroness seeks to cut out the local press from this but all publishers, including national ones, are under huge and sustained commercial pressure, which will not abate. It is a struggle for survival on a day-to-day basis, which will be made all the more complicated by having to wind the clock back 10 to 15 years to rake over a world which, frankly, no longer exists.

Fifthly, the biggest threat today to the sustainability of high-quality journalism comes from Google and Facebook, which are not even mentioned in the amendment. If we go down this route, in 20 years’ time people will ask why on earth this Parliament insisted on endlessly rerunning the repeats of an ancient black and white drama rather than looking at how journalism could survive in the global digital environment.

I have always been taught that this House must try to understand that, as an unelected Chamber, it needs at least to try to understand the realities of the outside world and take note of the will of the people. During a consultation on what is, in effect, this amendment, the people spoke in huge numbers and, by an overwhelming majority, rejected it. For all the reasons that I set out today, so should we.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I know that my noble friend—

[Lord Faulks (Con)]

My Lords, I do not think the noble Baroness was here for the debate.

[Baroness Kennedy of The Shaws]

My Lords, I was here during the previous amendment; of course I was. I was here in relation to the whole matter concerning this amendment from the noble Baroness, Lady Hollins. I heard the references from the Front Bench to the particular part of the argument that has just been conducted, and I was here to hear the noble and learned Lord, Lord Keen, speak about what was happening with this amendment and what had happened in the Commons. I shall carry on because I do not accept the comment made by the noble Lord.

I support the position of the noble Baroness, Lady Hollins, for a number of reasons. One is that the question of ethics, and the ethics of the media, has really not been dealt with adequately so far. The other matters that really concern me are those concerning the police. So far, I am afraid, the police have got off rather lightly in the course of investigations into what took place regarding media misbehaviour. Unlike other lawyers—I know my noble friend Lord Prescott has a poor view of lawyers—I do not act for newspapers and have not done, nor do I have a column in any newspaper. However, I have acted for victims who have gone through court processes, I have acted for defendants who are on trial and I have acted in inquests, and I have to say that the story with regard to police behaviour is not good. Too often—I know this from direct experience—there have been leaks and tip-offs to the media by the police when people have been invited into police stations to be interviewed. Perhaps they are suspected or they are going to assist in an inquiry, but they end up being met at the police station doors by photographers and journalists. They are exposed to speculative pieces about why they were being seen by the police, and often they are chased and stalked by the paparazzi as a result.

You have to ask yourself why that happens. I am afraid that journalists covering criminal courts over the years have told me that often they would basically have police officers in their back pockets, and that meant the pocket that had their wallet in it. What was offered to police were bungs, pay-offs and “drinks”, as they were called euphemistically, for providing those tip-offs. They happen still, and they have happened subsequent to the Leveson inquiry: people who have been asked to come to police stations to be interviewed with regard to sexual matters but have not been charged—and no charges have, in the end, been forthcoming—have found themselves over the front pages of newspapers. At this very moment, Sir Cliff Richard is involved in litigation regarding that kind of collusion and coalition between the media and the police. I am concerned that the police still have not been looked at adequately for the role they have played in some of this particularly iniquitous conduct.

The second part of Leveson seems of real importance to the well-being of our nation. If there is corruption in our police—if they are able to do this and to supplement their incomes by doing it, and there is money available in the media to do it—we know that something is seriously wrong. I hope the House has that in mind. Sometimes the purpose of a public inquiry is to air such matters and make clear the seriousness with which such corruption and misbehaviour is viewed.

Data Protection Bill [HL]

Baroness Kennedy of Shaws Excerpts

Report: 3rd sitting Hansard: House of Lords
Wednesday 10th January 2018 Lords Chamber

I therefore say to this House that outrage at press conduct in the past—and I share much of the concern—and sympathy, which I also share, for victims such as the noble Baroness, Lady Hollins, should not lead this House to approve these unjustified amendments.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, it is such a relief to hear the noble Lord, Lord Pannick, admit to the House, as he did at the beginning of his speech, that he sometimes loses a case. In fact, even as a meagre lawyer, I enjoyed success over him on an occasion in the European Court of Justice. However, it is disingenuous of the noble Lord to say that we should wait to hear whether the Government intend to do anything about Leveson part 2. We know that that is not the intention of government. The dragging of feet on all this has made it very clear that the Government do not want to fall out with their friends in the press or to lose the editorial support they get from sections of the press. We should be very clear that it is not likely to happen with the current Government.

I have great sympathy for the noble Baroness, Lady Hollins, and what she is saying, because I share the concern that not all these lessons have been learned. There are ways in which we already see reluctance by those who are now seen as having authority to hold the press to account to take action. Therefore, I do not share the concern that this amendment is unlawful. I do not believe that premise is true and I think that it will be tested in the courts. The noble Lord, Lord Pannick, who often represents the press, may end up representing newspapers as opposed to individuals who have suffered transgressions. I support the amendment of the noble Baroness, Lady Hollins, as I have seen too much of this bad behaviour going on.

Unlike the noble Lord, Lord Pannick, I am a criminal lawyer and I have seen the ways in which the police have leaked information. I am afraid that I have also seen bad behaviour on the part of police officers in divulging information to the press. Concerns have often been raised that there may be what used to be called “a drink in it” for subverting the proper processes by which high standards are maintained. Therefore, I do not share the confidence of the noble Lord, Lord Pannick, that everything will be fine as the measure runs through. I still feel that the press has lessons to learn. I hope that we listened to what the noble Baroness, Lady Hollins, had to say.

[Lord Paddick]

My Lords, I declare an interest. When I was a commander in the Metropolitan Police service, my personal details—this was in breach of data protection—were secured by Mulcaire, the private detective employed by a newspaper. This was discovered by the Metropolitan Police in 2002, but I was not told about it until 2010, when the Guardian alerted my lawyers to the fact that this had taken place. However, in the course of what subsequently transpired, I was shown an internal memorandum of the Metropolitan Police service, which showed that in 2002 it was aware that my phone and that of the then Deputy Prime Minister had been hacked into, and it never informed me of that. Therefore, noble Lords will understand that I should declare that personal interest.

However, I want to tell the following story to the House. I went with the family of Milly Dowler to see the then Prime Minister, the then Deputy Prime Minister and the then Leader of the Opposition to talk about the family’s experience. Noble Lords will recall that Milly Dowler went missing, was kidnapped and murdered, and that her family kept trying to call her mobile telephone. However, the phone relayed the message that the voicemail box for that number was full. Therefore, the family was losing hope that she might still be alive. Then they tried to phone again and found that some of the messages had been listened to. That gave them hope that she might still be alive. However, it transpired that there was room in that mailbox because journalists had hacked into her voicemail and had listened to some of the messages.

On the evening before the first of those meetings with the then Deputy Prime Minister, Nick Clegg, Milly Dowler’s father was telephoned by Surrey Police to tell him and the family that Surrey Police knew in 2002 that journalists had hacked into Milly Dowler’s voicemail, thereby allowing further messages to be left, as the journalists involved had called the police incident room to tell them that they had illegally hacked into the voicemail. However, it was not until nine years later and the imminent meeting with the then Prime Minister, the then Deputy Prime Minister and the then Leader of the Opposition, that the police felt obliged to tell the Dowler family that they knew from the outset that her phone had been hacked into. They did not offer any explanation for not having taken any action in relation to that illegal hacking into that phone.

These are the sorts of issues involved. This is not just about the conduct of the media. The aim of part 2 of Leveson is to examine the relationship between the police and the media and between politicians and the media, not simply the conduct of the media themselves. That is why we need part 2 of Leveson, and that is why I support Amendment 127A.

Data Protection Bill [HL]

Baroness Kennedy of Shaws Excerpts

Monday 30th October 2017 Lords Chamber

[Lord Macdonald of River Glaven (LD)]

My Lords, I have put my name to the amendment and I declare an interest as the warden of Wadham College, Oxford.

It is important to underline, as the noble Baroness has, that fundraising is now intrinsic to the financial well-being of institutions of higher education. That is certainly true of my college. It is intrinsic and critical because, along with conference business and other means of raising money, it helps to plug the gap that exists between fee levels for students and the real cost of educating them. It is clearly in the public interest that colleges and universities be placed in the strongest possible position to raise money to plug that gap.

It is equally important to bear in mind that the sort of fundraising that we are talking about does not involve random mailshots to unsuspecting victims, but regular contact over years with individuals who overwhelmingly regard themselves as members of a close community and are much more likely to complain if they are not contacted than if they are. I have experienced that many times. Requiring colleges to rebuild their alumni databases from scratch could serve no conceivable public benefit; indeed, it would lead to a significant public disbenefit, because it would weaken our ability to fundraise in already straitened financial circumstances.

I certainly agree with the noble Baroness that guidance would be insufficient in this situation. This matter is of such importance to the economic well-being of the institutions in question that it must be dealt with in the Bill. I very much look forward to hearing the Minister’s response and would wish to attend any meeting, should one be arranged.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I regret that this is beginning to sound like a chorus from Oxford, but I, too, am the head of an Oxford college—in my case, Mansfield College. I join noble Lords in expressing concern. I have also been the chancellor of Oxford Brookes University, a different kind of university, the president of SOAS and a visiting professor at Sheffield Hallam—very different institutions in higher education—and am now very involved in the further education world.

We have always looked across the Atlantic and said, “Isn’t it wonderful that people in America are so generous to their colleges and remember the places where they got their education? Isn’t that a wonderful thing to encourage here?”. That has been going on for some decades, but some colleges and universities are still new to this and have been working very hard to create databases and links with those who go through their institutions and connections with those who went in the past. To ask us now to revisit all that conscientious work and then try to secure all the consents necessary really is the law of unintended consequences. It is not what the Bill had in mind.

I remind people that concern was expressed that elderly persons, for example, were feeling belaboured by communications from charities wanting them to make those charities the beneficiaries of their wills, or whatever, which had unpleasant consequences for older people. One wanted a constraint on such cold calling and writing to people without invitation or connection. That is not the case here. Our students have created relationships inside their colleges. They know their universities and feel grateful to them for the experiences they have had. Their connections make them part of the community, so it is very different.

I hope that today we will not hear simply, “Let us go away and think about this”. I hope that the Minister will indicate that there will be an exemption in the Bill for colleges and higher education institutions—and schools—because fundraising is, in our current climate, part and parcel of our existence.

I happen to be the head of a college that does not have a wealthy alumni base. It has been very hard work creating the links that we have. We do not have a huge staffing capacity. To expect small colleges to go back in time to get the consents all the way down the line is expecting too much.

I hope that we will hear some very positive things from the Front Bench and that the Government will make an exemption in the Bill, rather than include something in regulations. This is very important to the quality of what we can offer our students, and it is not just the elite universities that face this—it is all universities, because fundraising is so much part and parcel of what we do.

--- Later in debate ---

[Lord Lucas]

My Lords, perhaps I may say a word on behalf of the victims. I very much hope that we will be given the right to ask the college to cross our name off.

I very much enjoyed my time at Oxford. It took Oxford 37 years to cotton on to the idea that, having spent three years doing physics there, perhaps I was interested in physics and it might offer me something in continued involvement other than students being pestered into asking me for money twice a year. That is not a relationship; that is not a community; that is a one-way suck. It is a Dyson vacuum cleaner designed to hoover money in on the basis of creating some sort of obligation. It was a contract 40 years ago, for goodness’ sake: create something now or keep something going.

Fundamentally, I have very little sympathy with the idea—

[Baroness Kennedy of The Shaws]

The noble Lord could not have gone to the colleges that we all represent.

[Lord Lucas]

I am absolutely content that universities should be put on a par with charities, because I know that we will be looking after the interests of those whom charities approach just as much as we look after the interests of charities. I hope that is the solution that my noble friend will afford, but it is welcome that there are limitations in the Bill on the random approaches that can be made by organisations. To the extent that we allow exemptions, we should not privilege universities in any particular way. Yes, they are often worthy causes, but they are very fond of money.