Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 9th May 2023 Lords Chamber

[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—

[Baroness Buscombe (Con)]

I am sorry to interrupt the noble Lord, but I would like to ask him whether, when the Joint Committee was having its deliberations, it ever considered, in addition to people’s feelings and hurt, their livelihoods.

[Lord Clement-Jones (LD)]

Of course. I think we looked at it in the round and thought that stripping away anonymity could in many circumstances be detrimental to those, for instance, working in hostile regimes or regimes where human rights were under risk. We considered a whole range of things, and the whole question about whether you should allow anonymity is subject to those kinds of human rights considerations.

I take the noble Baroness’s point about business, but you have to weigh up these issues, and we came around the other side.

[Baroness Buscombe (Con)]

Does the noble Lord not think that many people watching and listening to this will be thinking, “So people in far-off regimes are far more important than I am—I who live, work and strive in this country”? That is an issue that I think was lacking through the whole process and the several years that this Bill has been discussed. Beyond being hurt, people are losing their livelihoods.

[Lord Clement-Jones (LD)]

I entirely understand what the noble Baroness is saying, and I know that she feels particularly strongly about these issues given her experiences. The whole Bill is about trying to weigh up different aspects—we are on day 5 now, and this has been very much the tenor of what we are trying to talk about in terms of balance.

[Baroness Kidron (CB)]

I want to reassure the noble Baroness that we did discuss anonymity in relation to the issues that she has put forward. A company should not be able to use anonymity as an excuse not to deal with the situation, and that is slightly different from simply saying, “We throw our hands up on those issues”.

There was a difference between the fact that companies are using anonymity to say, “We don’t know who it is, and therefore we can’t deal with it”, and the idea that they should take action against people who are abusing the system and the terms of service. It is subtle, but it is very meaningful in relation to what the noble Baroness is suggesting.

[Lord Clement-Jones (LD)]

That is a very fair description. We have tried to emphasise throughout the discussion on the Bill that it is about not just content but how the system and algorithms work in terms of amplification. In page 35 of our report, we try to address some of those issues—it is not central to the point about anonymity, but we certainly talked about the way that messages are driven by the algorithm. Obviously, how that operates in practice and how the Bill as drafted operates is what we are kicking the tyres on at the moment, and the noble Baroness is absolutely right to do that.

The Government’s response was reasonably satisfactory, but this is exactly why this group explores the definition of verification and so on, and tries to set standards for verification, because we believe that there is a gap in all this. I understand that this is not central to the noble Baroness’s case, but—believe me—the discussion of anonymity was one of the most difficult issues that we discussed in the Joint Committee, and you have to fall somewhere in that discussion.

Requiring platforms to allow users to see other users’ verification status is a crucial further pillar to user empowerment, and it provides users with a key piece of information about other users. Being able to see whether an account is verified would empower victims of online abuse or threats—I think this partly answers the noble Baroness’s question—to make more informed judgments about the source of the problem, and therefore take more effective steps to protect themselves. Making verification status visible to all users puts more choice in their hands as to how they manage the higher risks associated with non-verified and anonymous accounts, and offers them a lighter-touch alternative to filtering out all non-verified users entirely.

We on these Benches support the amendments that have been put forward. Amendment 141 aims to ensure that a user verification duty delivers in the way that the public and Government hope it will—by giving Ofcom a clear remit to require that the verification systems that platforms are required to develop in response to the duty are sufficiently rigorous and accessible to all users.

I was taken by what the noble Baroness, Lady Bull, said, particularly the case for Ofcom’s duties as regards those with disabilities. We need Ofcom to be tasked with setting out the principles and minimum standards, because otherwise platforms will try to claim, as verification, systems that do not genuinely verify a user’s identity, are unaffordable to ordinary users or use their data inappropriately.

Likewise, we support Amendment 303, which would introduce a definition of “user identity verification” into the Bill to ensure that we are all on the same page. In Committee in the House of Commons, Ministers suggested that “user identity verification” is an everyday term so does not need a definition. This amendment, which no doubt the noble Baroness, Lady Merron, will speak to in more detail, is bang on point as far as that is concerned. That was not a convincing answer, and that is why this amendment is particularly apt.

I heard what the noble Baroness, Lady Buscombe, had to say, but in many ways the amendment in the previous group in the name of the noble Lord, Lord Knight, met some of the noble Baroness’s concerns. As regards the amendment in the name of the noble Lord, Lord Moylan, we are all Wikipedia fans, so we all want to make sure that there is no barrier to Wikipedia operating successfully. I wonder whether perhaps the noble Lord is making quite a lot out of the Wikipedia experience, but I am sure the Minister will enlighten us all and will have a spot-on response for him.

[Baroness Merron (Lab)]

My Lords, I am pleased to speak on this group of amendments, and I will particularly address the amendments in the name of my noble friend Lord Stevenson. To start with the very positive, I am very grateful to the Minister for signing Amendment 40 —as has already been commented, this is hopefully a sign of things to come. My observation is that it is something of a rarity, and I am containing my excitement as it was agreement over one word, “effectively”. Nevertheless, it is very welcome support.

These amendments aim to make it clearer to users whether those whom they interact with are verified or non-verified, with new duties backed up by a set of minimum standards, to be reflected in Ofcom’s future guidance on the user verification duty, with standards covering—among other things—privacy and data protection. The noble Lord, Lord Clement-Jones, helpfully referred your Lordships’ House to the report of the Joint Committee and spent some useful time on the challenges over anonymity. As is the case with so many issues on other Bills and particularly on this one, there is a balance to be struck. Given the proliferation of bots and fake profiles, we must contemplate how to give confidence to people that they are interacting with real users.

Amendment 141 tabled by my noble friend Lord Stevenson and supported by the noble Lord, Lord Clement- Jones, requires Ofcom to set a framework of principles and minimum standards for the user verification duty. The user verification duty is one of the most popular changes to be made to the Bill following the pre-legislative scrutiny process and reflects a recommendation of the Joint Committee. Why is it popular? Because the public understand that the current unregulated approach by social media platforms is a major enabler of harmful online behaviour. Anonymous accounts are more likely to engage in abuse or harassment and, for those at the receiving end, threats from anonymous accounts can feel even more frightening, while the chances are lower of any effective enforcement from the police or platforms.

As we know, bad actors use networks of fake accounts to peddle disinformation and divisive conspiracy theories. I am sure that we will come back to this in later groups. This amendment aims to ensure that the user verification duty delivers in the way that the public and the Government hope that it will. It requires that the systems which platforms develop in response to the duty are sufficiently rigorous and accessible to all users.

The noble Baroness, Lady Kidron, talked about affordability, something that I would like to amplify. There will potentially be platforms which try to claim that verification systems somehow genuinely verify a user’s identity when they do not, or they will be unaffordable to ordinary users, as the noble Baroness said, or data will be used inappropriately. This is not theoretical. She referred to the Meta-verified product, which looks like it might be more rigorous, but at a cost of $180 per year per account, which will not be within the grasp of many people. Twitter is now also selling blue ticks of verification for $8, including a sale to those who are scamming, impersonating, and who are propagandists for figures in our world such as Putin. This amendment future-proofs and allows flexibility. It will not tie the hands of either the regulator or the platforms. Therefore, I hope that it can find some favour with the Minister.

In Amendment 303, again tabled by my noble friend Lord Stevenson and supported by the noble Lord, Lord Clement-Jones, there is an addition of the definition of “user identity verification”. I agree with the noble Lord about how strange it was that, in Committee in the Commons, Ministers felt that user identity verification was somehow an everyday term which did not need definition. I dispute that. It is no better left to common sense than any other terms that we do have definitions for in Clause 207—for example, “age assurance”, “paid-for advertisement” and “terms of service”. All these get definitions. Surely it is very wise to define user identity verification.

--- Later in debate ---

[Baroness Harding of Winscombe (Con)]

My Lords, I too will be very brief. As a member of the Communications and Digital Committee, I just wanted to speak in support of my noble friend Lady Stowell of Beeston and her extremely powerful speech, which seems like it was quite a long time ago now, but it was not that long. I want to highlight two things. I do not understand how, as a number of noble Lords have said, having risk assessments is a threat to freedom of expression. I think the absolute opposite is the case. They would enhance all the things the noble Baroness, Lady Fox, is looking to see in the Bill, just as much as they would enhance the protections that my noble friend, who I always seem to follow in this debate, is looking for.

Like my noble friend, I ask the Minister: why not? When the Government announced the removal of legal but harmful and the creation of user empowerment tools, I remember thinking—in the midst of being quite busy with Covid—“What are user empowerment tools and what are they going to empower me to do?” Without a risk assessment, I do not know how we answer that question. The risk is that we are throwing that question straight to the tech companies to decide for themselves. A risk assessment provides the framework that would enable user empowerment tools to do what I think the Government intend.

Finally, I too will speak against my noble friend Lord Moylan’s Amendment 294 on psychological harm. It is well documented that tech platforms are designed to drive addiction. Addiction can be physiological and psychological. We ignore that at our peril.

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to have been part of this debate and to have heard how much we are on common ground. I very much hope that, in particular, the Minister will have listened to the voices on the Conservative Benches that have very powerfully put forward a number of amendments that I think have gained general acceptance across the Committee.

I fully understand the points that the noble Lord, Lord Black, made and why he defends Clause 14. I hope we can have a more granular discussion about the contents of that clause rather than wrap it up on this group of amendments. I do not know whether we will be able to have that on the next group.

I thank the noble Baroness, Lady Stowell, for putting forward her amendment. It is very interesting, as the noble Baronesses, Lady Bull and Lady Fraser, said, that we are trying to get to the same sort of mechanisms of risk assessment, perhaps out of different motives, but we are broadly along the same lines and want to see them for adult services. We want to know from the Minister why we cannot achieve that, basically. I am sure we could come to some agreement between us as to whether user empowerment tools or terms of service are the most appropriate way of doing it.

We need to thank the committee that the noble Baroness chairs for having followed up on the letter to the Secretary of State for DCMS, as was, on 30 January. It is good to see a Select Committee using its influence to go forward in this way.

The amendments tabled by the noble Lord, Lord Kamall, and supported by my noble friend Lady Featherstone—I am sorry she is unable to be here today, as he said—are important. They would broaden out consideration in exactly the right kind of way.

However, dare I say it, probably the most important amendment in this group is Amendment 48 in the name of the noble Lord, Lord Stevenson. Apart from the Clause 14 stand part notice, it is pretty much bang on where the Joint Committee got to. He was remarkably tactful in not going into any detail on the Government’s response to that committee. I will not read it out because of the lateness of the hour, but the noble Viscount, Lord Colville, got pretty close to puncturing the Government’s case that there is no proper definition of public interest. It is quite clear that there is a perfectly respectable definition in the Human Rights Act 1998 and, as the noble Viscount said, in the Defamation Act 2013, which would be quite fit for purpose. I do not quite know why the Government responded as they did at paragraph 251. I very much hope that the Minister will have another look at that.

The amendment from the noble and learned Lord, Lord Hope, which has the very respectable support of Justice, is also entirely apposite. I very much hope that the Government will take a good look at that.

Finally, and extraordinarily, I have quite a lot of sympathy with the amendments from the noble Lord, Lord Moylan. It was all going so well until we got to Amendment 294; up to that point I think he had support from across the House, because placing that kind of duty on Ofcom would be a positive way forward.

As I say, getting a clause of the kind that the noble Lord, Lord Stevenson, has put forward, with that public interest content point and with an umbrella duty on freedom of expression, allied to the definition from the noble and learned Lord, Lord Hope, would really get us somewhere.

[Lord Stevenson of Balmacara (Lab)]

Lawyers—don’t you love them? How on earth are we supposed to unscramble that at this time of night? It was good to have my kinsman, the noble and learned Lord, Lord Hope, back in our debates. We were remarking only a few days ago that we had not seen enough lawyers in the House in these debates. One appears, and light appears. It is a marvellous experience.

I thank the Committee for listening to my earlier introductory remarks; I hope they helped to untangle some of the issues. The noble Lord, Lord Black, made it clear that the press are happy with what is in the current draft. There could be some changes, and we have heard a number of examples of ways in which one might either top or tail what there is.

There was one question that perhaps he could have come back on, and maybe he will, as I have raised it separately with the department before. I agree with a lot of what he said, but it applies to a lot more than just news publishers. Quality journalism more generally enhances and restores our faith in public services in so many ways. Why is it only the news? Is there a way in which we could broaden that? If there is not this time round, perhaps that is something we need to pick up later.

As the noble Lord, Lord Clement-Jones, has said, the noble Viscount, Lord Colville, made a very strong and clear case for trying to think again about what journalism does in the public realm and making sure that the Bill at least carries that forward, even if it does not deal with some of the issues that he raised.

We have had a number of other good contributions about how to capture some of the good ideas that were flying around in this debate and keep them in the foreground so that the Bill is enhanced. But I think it is time that the Minister gave us his answers.

Online Safety Bill

Lord Clement-Jones 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.

[Baroness Merron (Lab)]

My Lords, I thank noble Lords from all sides of the House for their contributions and for shining a light on the point the noble Lord, Lord Clement-Jones, made near the end of his remarks about the need to equip adults with the tools to protect themselves.

It is helpful to have these amendments, because they give the Minister the opportunity to accept—as I hope he will—a number of the points raised. It seems a long time since the noble Lord, Lord McNally, introduced this group, but clearly it has given us all much time to reflect. I am sure we will see the benefits of that in the response from the Minister. Much of the debate on the Bill has focused on child safety and general practicalities, but this group helpfully allows us to focus on adults and the operation of the Government’s replacement for the legal but harmful section of the Bill. As the noble Baroness, Lady Fraser, rightly said, perhaps some tightening up of the legislation before us would be helpful. These amendments give us that chance.

--- Later in debate ---

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

I am very grateful to the noble Lords who have spoken on the amendments in this group, both this afternoon and last Tuesday evening. As this is a continuation of that debate, I think my noble friend Lord Moylan is technically correct still to wish the noble Baroness, Lady Kidron, a happy birthday, at least in procedural terms.

We have had a very valuable debate over both days on the Bill’s approach to holding platforms accountable to their users. Amendments 33B, 41A, 43ZA, 138A and 194A in the names of the noble Lords, Lord Lipsey and Lord McNally, and Amendment 154 in the name of the noble Lord, Lord Stevenson of Balmacara, seek to bring back the concept of legal but harmful content and related adult risk assessments. They reintroduce obligations for companies to consider the risk of harm associated with legal content accessed by adults. As noble Lords have noted, the provisions in the Bill to this effect were removed in another place, after careful consideration, to protect freedom of expression online. In particular, the Government listened to concerns that the previous legal but harmful provisions could create incentives for companies to remove legal content from their services.

In place of adult risk assessments, we introduced new duties on category 1 services to enable users themselves to understand how these platforms treat different types of content, as set out in Clauses 64 and 65. In particular, this will allow Ofcom to hold them to account when they do not follow through on their promises regarding content they say that they prohibit or to which they say that they restrict access. Major platforms already prohibit much of the content listed in Clause 12, but these terms of service are often opaque and not consistently enforced. The Bill will address and change that.

I would also like to respond to concerns raised through Amendments 41A and 43ZA, which seek to ensure that the user empowerment categories cover the most harmful categories of content to adults. I reassure noble Lords that the user empowerment list reflects input from a wide range of interested parties about the areas of greatest concern to users. Platforms already have strong commercial incentives to tackle harmful content. The major technology companies already prohibit most types of harmful and abusive content. It is clear that most users do not want to see that sort of content and most advertisers do not want their products advertised alongside it. Clause 12 sets out that providers must offer user empowerment tools with a specified list of content to the extent that it is proportionate to do so. This will be based on the size or capacity of the service as well as the likelihood that adult users will encounter the listed content. Providers will therefore need internally to assess the likelihood that users will encounter the content. If Ofcom disagrees with the assessment that a provider has made, it will have the ability to request information from providers for the purpose of assessing compliance.

Amendments 44 and 158, tabled by the right reverend Prelate the Bishop of Oxford, seek to place new duties on providers of category 1 services to produce an assessment of their compliance with the transparency, accountability, freedom of expression and user empowerment duties as set out in Clauses 12, 64 and 65 and to share their assessments with Ofcom. I am sympathetic to the aim of ensuring that Ofcom can effectively assess companies’ compliance with these duties. But these amendments would enable providers to mark their own homework when it comes to their compliance with the duties in question. The Bill has been designed to ensure that Ofcom has responsibility for assessing compliance and that it can obtain sufficient information from all regulated services to make judgments about compliance with their duties. The noble Baroness, Lady Kidron, asked about this—and I think the noble Lord, Lord Clement-Jones, is about to.

[Lord Clement-Jones (LD)]

I hope the Minister will forgive me for interrupting, but would it not be much easier for Ofcom to assess compliance if a risk assessment had been carried out?

[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—

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[Baroness Harding of Winscombe (Con)]

My Lords, I had not intended to speak in this debate because I now need to declare an unusual interest, in that Amendment 38A has been widely supported outside this Chamber by my husband, the Member of Parliament for Weston-super-Mare. I am not intending to speak on that amendment but, none the less, I mention it just in case.

I rise to speak because I have been so moved by the speeches, not least the right reverend Prelate’s speech. I would like just to briefly address the “default on” amendments and add my support. Like others, on balance I favour the amendments in the name of the noble Lord, Lord Clement-Jones, but would willingly throw my support behind my noble friend Lady Morgan were that the preferred choice in the Chamber.

I would like to simply add two additional reasons why I ask my noble friend the Minister to really reflect hard on this debate. The first is that children become teenagers, who become young adults, and it is a gradual transition—goodness, do I feel it as the mother of a 16 year-old and a 17 year-old. The idea that on one day all the protections just disappear completely and we require our 18 year-olds to immediately reconfigure their use of all digital tools just does not seem a sensible transition to adulthood to me, whereas the ability to switch off user empowerment tools as you mature as an adult seems a very sensible transition.

Secondly, I respect very much the free speech arguments that the noble Baroness, Lady Fox, made but I do not think this is a debate about the importance of free speech. It is actually about how effective the user empowerment tools are. If they are so hard for non-vulnerable adults to turn off, what hope have vulnerable adults to be able to turn them on? For the triple shield to work and the three-legged stool to be effective, the onus needs to be on the tech companies to make these user empowerment tools really easy to turn on and turn off. Then “default on” is not a restriction on freedom of speech at all; it is simply a means of protecting our most vulnerable.

[Lord Clement-Jones (LD)]

My Lords, this has been a very thoughtful and thought-provoking debate. I start very much from the point of view expressed by the noble Baroness, Lady Kidron, and this brings the noble Baroness, Lady Buscombe, into agreement—it is not about the content; this is about features. The noble Baroness, Lady Harding, made exactly the same point, as did the noble Baroness, Lady Healy—this is not about restriction on freedom of speech but about a design feature in the Bill which is of crucial importance.

When I was putting together the two amendments that I have tabled, I was very much taken by what Parent Zone said in a recent paper. It described user empowerment tools as “a false hope”, and rightly had a number of concerns about undue reliance on tools. It said:

“There is a real danger of users being overwhelmed and bewildered”.


It goes on to say that

“tools cannot do all the work, because so many other factors are in play—parental styles, media literacy and technological confidence, different levels of vulnerability and, crucially, trust”.

The real question—this is why I thought we should look at it from the other side of things in terms of default—is about how we mandate the use of these user empowerment tools in the Bill for both children and adults. In a sense, my concerns are exactly the opposite of those of the noble Baroness, Lady Fox—for some strange, unaccountable reason.

The noble Baroness, Lady Morgan, the noble Lord, Lord Griffiths, the right reverend Prelate and, notably, my noble friend Lady Parminter have made a brilliant case for their amendment, and it is notable that these amendments are supported by a massive range of organisations. They are all in this area of vulnerable adults: the Mental Health Foundation, Mind, the eating disorder charity Beat, the Royal College of Psychiatrists, the British Psychological Society, Rethink Mental Illness, Mental Health UK, and so on. It is not a coincidence that all these organisations are discussing this “feature”. This is a crucial aspect of the Bill.

Again, I was very much taken by some of the descriptions used by noble Lords during the debate. The right reverend Prelate the Bishop of Oxford said that young people do not suddenly become impervious to content when they reach 18, and he particularly described the pressures as the use of AI only increases. I thought the way the noble Baroness, Lady Harding, described the progression from teenagehood to adulthood was extremely important. There is not some sort of point where somebody suddenly reaches the age of 18 and has full adulthood which enables then to deal with all this content.

Under the Bill as it stands, adult users could still see and be served some of the most dangerous content online. As we have heard, this includes pro-suicide, pro-anorexia and pro-bulimia content. One has only to listen to what my noble friend Lady Parminter had to say to really be affected by the operation, if you like, of social media in those circumstances. This is all about the vulnerable. Of course, we know that anorexia has the highest mortality rate of any mental health problem; the NHS is struggling to provide specialist treatment to those who need it. Meanwhile, suicide and self-harm-related content remains common and is repeatedly implicated in deaths. All Members here who were members of the Joint Committee remember the evidence of Ian Russell about his daughter Molly. I think that affected us all hugely.

We believe now you can pay your money and take your choice of whichever amendment seems appropriate. Changing the user empowerment provisions to require category 1 providers to have either the safest options as default for users or the terms of my two amendments is surely a straightforward way of protecting the vast majority of internet users who do not want this material served to them.

You could argue that the new offence of encouragement to serious self-harm, which the Government have committed to introducing, might form part of the solution here, but you cannot criminalise all the legal content that treads the line between glorification and outright encouragement. Of course, we know the way the Bill has been changed. No similar power is proposed, for instance, to address eating disorder content.

The noble Baroness, Lady Healy, quoted our own Communications and Digital Committee and its recommendations about a comprehensive toolkit of settings overseen by Ofcom, allowing users to decide what types of content they see and from whom. I am very supportive of Amendment 38A from the noble Lord, Lord Knight, which gives a greater degree of granularity about the kind of user, in a sense, that can communicate to users.

Modesty means that of course I prefer my own amendments and I agree with the noble Baronesses, Lady Fraser, Lady Bull and Lady Harding, and I am very grateful for their support. But we are all heading in the same direction. We are all arguing for a broader “by default” approach. The onus should not be on these vulnerable adults in particular to switch them on, as the noble Baroness, Lady Bull, said. It is all about those vulnerable adults and we must, as my noble friend Lady Burt, said, have their best interests at heart, and that is why we have tabled these amendments.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

That is right. Platforms are not in the public sector, so the public sector equality duty does not apply to them. However, that duty applies to Ofcom, taking into account the ways in which people with certain characteristics can be affected through the codes of practice and the user empowerment duties that it is enforcing. So it suffuses the thinking there, but the duty is on Ofcom as a public sector body.

We talk later in Clause 12(11) of some of the characteristics that are similar in approach to the protected characteristics in the Equality Act 2010. I will come to that again shortly in response to points made by noble Lords.

I want to say a bit about the idea of there being a cliff edge at the age of 18. This was raised by a number of noble Lords, including the noble Lord, Lord Griffiths, my noble friends Lady Morgan and Lady Harding and the noble Baroness, Lady Kidron. The Bill’s protections recognise that, in law, people become adults when they turn 18—but it is not right to say that there are no protections for young adults. As noble Lords know, the Bill will provide a triple shield of protection, of which the user empowerment duties are the final element.

The Bill already protects young adults from illegal content and content that is prohibited in terms and conditions. As we discussed in the last group, platforms have strong commercial incentives to prohibit content that the majority of their users do not want to see. Our terms of service duties will make sure that they are transparent about and accountable for how they treat this type of content.

[Lord Clement-Jones (LD)]

My Lords, what distinguishes young adults from older adults in what the Minister in saying?

[Lord Parkinson of Whitley Bay (Con)]

In law, there is nothing. I am engaging with the point that there is no cliff edge. There are protections for people once they turn 18. People’s tastes and risk appetites may change over time, but there are protections in the Bill for people of all ages.

[Lord Clement-Jones (LD)]

Surely, this is precisely the point that the noble Baroness, Lady Kidron, was making. As soon as you reach 18, there is no graduation at all. There is no accounting for vulnerable adults.

[Lord Parkinson of Whitley Bay (Con)]

There is not this cliff edge which noble Lords have feared—that there are protections for children and then, at 18, a free for all. There are protections for adult users—young adults, older adults, adults of any age—through the means which I have just set out: namely, the triple shield and the illegal content provisions. I may have confused the noble Lord in my attempt to address the point. The protections are there.

[Lord Clement-Jones (LD)]

There is an element of circularity to what the Minister is saying. This is precisely why we are arguing for the default option. It allows this vulnerability to be taken account of.

[Lord Knight of Weymouth (Lab)]

Perhaps it would help if the Minister wanted to just set out the difference for us. Clearly, this Committee has spent some time debating the protection for children, which has a higher bar than protection for adults. It is not possible to argue that there will be no difference at the age of 18, however effective the first two elements of the triple shield are. Maybe the Minister needs to think about coming at it from the point of view of a child becoming an adult, and talk us through what the difference will be.

[Lord Knight of Weymouth (Lab)]

I understand all of that—I think—but that is not the regime being applied to children. It is really clear that children have a safer, better experience. The difference between those experiences suddenly happening on an 18th birthday is what we are concerned about.

[Lord Clement-Jones (LD)]

Before the Minister stands up—a new phrase—can he confirm that it is perfectly valid to have a choice to lift the user empowerment tool, just as it is to impose it? Choice would still be there if our amendments were accepted.

[Lord Parkinson of Whitley Bay (Con)]

It would be, but we fear the chilling effect of having the choice imposed on people. As the noble Baroness, Lady Fox, rightly put it, one does not know what one has not encountered until one has engaged with the idea. At the age of 18, people are given the choice to decide what they encounter online. They are given the tools to ensure that they do not encounter it if they do not wish to do so. As the noble Lord has heard me say many times, the strongest protections in the Bill are for children. We have been very clear that the Bill has extra protections for people under the age of 18, and it preserves choice and freedom of expression online for adult users—young and old adults.

My noble friend Lady Buscombe asked about the list in Clause 12(11). We will keep it under constant review and may consider updating it should compelling evidence emerge. As the list covers content that is legal and designed for adults, it is right that it should be updated by primary legislation after a period of parliamentary scrutiny.

Amendments 42 and 38A, tabled by the noble Lords, Lord Stevenson of Balmacara and Lord Knight of Weymouth, respectively, seek to change the scope of user empowerment content features. Amendment 38A seeks to expand the user empowerment content features to include the restriction of content the provenance of which cannot be authenticated. Amendment 42 would apply features to content that is abusive on the basis of characteristics protected under the Equality Act 2010.

The user empowerment content list reflects areas where there is the greatest need for users to be offered choice about reducing their exposure to types of content. While I am sympathetic to the intention behind the amendments, I fear they risk unintended consequences for users’ rights online. The Government’s approach recognises the importance of having clear, enforceable and technically feasible duties that do not infringe users’ rights to free expression. These amendments risk undermining this. For instance, Amendment 38A would require the authentication of the provenance of every piece of content present on a service. This could have severe implications for freedom of expression, given its all-encompassing scope. Companies may choose not to have anything at all.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 2nd May 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, the proposers of these amendments have made a very good case to answer. My only reservation is that I think there are rather more subtle and proportionate ways of dealing with this—I take on board entirely what the noble Lord, Lord Bethell, says.

I keep coming back to the deliberations that we had in the Joint Committee. We said:

“All statutory requirements on user-to-user services, for both adults and children, should also apply to Internet Society Services likely to be accessed by children, as defined by the Age Appropriate Design Code”.


This goes back to the test that we described earlier, to

“ensure all pornographic websites would have to prevent children from accessing their content”,

and back to that definition,

“likely to be accessed by children”.

The Government keep resisting this aspect, but it is a really important way of making sure that we deal with this proportionately. We are going to have this discussion about minimum age-assurance standards. Rather than simply saying, “It has to be age verification”, if we had a set of principles for age assurance, which can encompass a number of different tools and approaches, that would also help with the proportionality of what we are talking about.

The Government responded to the point we made about age assurance. The noble Baroness, Lady Kidron, was pretty persuasive in saying that we should take this on board in our Joint Committee report, and she had a Private Member’s Bill at the ready to show us the wording, but the Government came back and said:

“The Committee’s recommendations stress the importance of the use of age assurance being proportionate to the risk that a service presents”.


They have accepted that this would be a proportionate way of dealing with it, so this is not black and white. My reservation is that there is a better way of dealing with this than purely driving through these three or four amendments, but there is definitely a case for the Government to answer on this.

[Lord Knight of Weymouth (Lab)]

My Lords, I think the whole Committee is grateful to my noble friend Lady Ritchie for introducing these amendments so well.

Clearly, there is a problem. The anecdote from the noble Baroness, Lady Kidron, about the call she had had with the barrister relating to those freshers’ week offences, and the sense that people were both offenders and victims, underscored that. In my Second Reading speech I alluded to the problem of the volume of young people accessing pornography on Twitter, and we see the same on Reddit, Discord and a number of other platforms. As the noble Baroness said, it is changing what so many young people perceive to be normal about sexual relationships, and that has to be addressed.

Ofcom very helpfully provided a technical briefing on age assurance and age verification for Members of your Lordships’ House—clearly it did not persuade everybody, otherwise we would not be having this debate. Like the noble Lord, Lord Clement-Jones, I am interested in this issue of whether it is proportionate to require age verification, rather than age assurance.

For example, on Amendment 83 in my noble friend’s name in respect of search, I was trying to work out in my own mind how that would work. If someone used search to look for pornographic content and put in an appropriate set of keywords but was not logged in—so the platform would not know who they are—and if age verification was required, would they be interrupted with a requirement to go through an age-verification service before the search results were served up? Would the search results be served up but without the thumbnails of images and with some of the content suppressed? I am just not quite sure what the user experience would be like with a strict age-verification regime being used, for example, in respect of search services.

--- Later in debate ---

[Baroness Kidron (CB)]

My Lords, I support something between the amendments of the noble Lords, Lord Stevenson and Lord Bethell, and the Government. I welcome all three and put on record my thanks to the Government for making a move on this issue.

There are three members of the pre-legislative committee still in the Chamber at this late hour, and I am sure I am not the only one of those three who remembers the excruciating detail in which Suzanne Webb MP, during evidence given with Meta’s head of child safety, established that there was nowhere to report harm, but nowhere—not up a bit, not sideways, not to the C-suite. It was stunning. I have used that clip from the committee’s proceedings several times in schools to show what we do in the House of Lords, because it was fascinating. That fact was also made abundantly clear by Frances Haugen. When we asked her why she took the risk of copying things and walking them out, she said, “There was nowhere to go and no one to talk to”.

Turning to the amendments, like the noble Baroness, Lady Harding, I am concerned about whether we have properly dealt with C-suite reporting and accountability, but I am a hugely enthusiastic supporter of that accountability being in the system. I will be interested to hear the Minister speak to the Government’s amendment, but also to some of the other issues raised by the noble Lord, Lord Knight.

I will comment very briefly on the supply chain and Amendment 219. Doing so, I go back again to Amendment 2, debated last week, which sought to add services not covered by the current scope but which clearly promoted and enabled access to harm and which were also likely to be accessed by children. I have a long quote from the Minister but, because of the hour, I will not read it out. In effect, and to paraphrase, he said, “Don’t worry, they will be caught by the other guys—the search and user-to-user platforms”. If the structure of the Bill means that it is mandatory that the user-to-user and search platforms catch the people in the supply chain, surely it would be a great idea to put that in the Bill absolutely explicitly.

Finally, while I share some of the concerns raised by the noble Baroness, Lady Fox, I repeat my constant reprise of “risk not size”. The size of the fine is related to the turnover of the company, so it is actually proportionate.

[Lord Clement-Jones (LD)]

My Lords, this has been a really interesting debate. I started out thinking that we were developing quite a lot of clarity. The Government have moved quite a long way since we first started debating senior manager liability, but there is still a bit of fog that needs dispelling—the noble Baronesses, Lady Kidron and Lady Harding, have demonstrated that we are not there yet.

I started off by saying yes to this group, before I got to grips with the government amendments. I broadly thought that Amendment 33, tabled by the noble Lord, Lord Stevenson, and Amendment 182, tabled by the noble Lord, Lord Bethell, were heading in the right direction. However, I was stopped short by Trustpilot’s briefing, which talked about a stepped approach regarding breaches and so on—that is a very strong point. It says that it is important to recognise that not all breaches should carry the same weight. In fact, it is even more than that: certain things should not even be an offence, unless you have been persistent or negligent. We have to be quite mindful as to how you formulate criminal offences.

I very much liked what the noble Lord, Lord Bethell, had to say about the tech view of its own liability. We have all seen articles about tech exceptionalism, and, for some reason, that seems to have taken quite a hold—so we have to dispel that as well. That is why I very much liked what the noble Lord, Lord Curry, said. It seemed to me that that was very much part of a stepped approach, while also being transparent to the object of the exercise and the company involved. That fits very well with the architecture of the Bill.

The noble Baroness, Lady Harding, put her finger on it: the Bill is not absolutely clear. In the Government’s response to the Joint Committee’s report, we were promised that, within three to six months, we would get that senior manager liability. On reading the Bill, I am certainly still a bit foggy about it, and it is quite reassuring that the noble Baroness, Lady Harding, is foggy about it too. Is that senior manager liability definitely there? Will it be there?

The Joint Committee made two other recommendations which I thought made a lot of sense: the obligation to report on risk assessment to the main board of a company, and the appointment of a safety controller, which the noble Lord, Lord Knight, mentioned. Such a controller would make it very clear—as with GDPR, you would have a senior manager who you can fix the duty on.

Like the noble Baroness, Lady Harding, I would very much like to hear from the Minister on the question of personal liability, as well as about Ofcom. It is important that any criminal prosecution is mediated by Ofcom; that is cardinal. You cannot just create criminal offences where you can have a prosecution without the intervention of Ofcom. That is extraordinarily important.

I have just a couple of final points. The noble Baroness, Lady Fox, comes back quite often to this point about regulation being the enemy of innovation. It very much depends what kind of innovation we are talking about. Technology is not necessarily neutral. It depends how the humans who deploy it operate it. In circumstances such as this, where we are talking about children and about smaller platforms that can do harm, I have no qualms about having regulation or indeed criminal liability. That is a really important factor. We are talking about a really important area.

I very strongly support Amendment 219. It deals with a really important aspect which is completely missing from the Bill. I have a splendid briefing here, which I am not going to read out, but it is all about Mastodon being one example of a new style of federated platform in which the app or hub for a network may be category 1 owing to the size of its user base but individual subdomains or networks sitting below it could fall under category 2 status. I am very happy to give a copy of the briefing to the Minister; it is a really well-written brief, and demonstrates entirely some of the issues we are talking about here.

I reassure the noble Lord, Lord Knight, that I think the amendment is very well drafted. It is really quite cunning in the way that it is done.

[Baroness Stowell of Beeston (Con)]

My Lords, I wonder whether I can make a brief intervention—I am sorry to do so after the noble Lord, Lord Clement-Jones, but I want to intervene before my noble friend the Minister stands up, unless the Labour Benches are about to speak.

I have been pondering this debate and have had a couple of thoughts. Listening to the noble Lord, Lord Clement-Jones, I am reminded of something which was always very much a guiding light for me when I chaired the Charity Commission, and therefore working in a regulatory space: regulation is never an end in itself; you regulate for a reason.

I was struck by the first debate we had on day one of Committee about the purpose of the Bill. If noble Lords recall, I said in that debate that, for me, the Bill at its heart was about enhancing the accountability of the platforms and the social media businesses. I felt that the contribution from my noble friend Lady Harding was incredibly important. What we are trying to do here is to use enforcement to drive culture change, and to force the organisations not to never think about profit but to move away from profit-making to focusing on child safety in the way in which they go about their work. That is really important when we start to consider the whole issue of enforcement.

It struck me at the start of this discussion that we have to be clear what our general approach and mindset is about this part of our economy that we are seeking to regulate. We have to be clear about the crimes we think are being committed or the offences that need to be dealt with. We need to make sure that Ofcom has the powers to tackle those offences and that it can do so in a way that meets Parliament’s and the public’s expectations of us having legislated to make things better.

I am really asking my noble friend the Minister, when he comes to respond on this, to give us a sense of clarity on the whole question of enforcement. At the moment, it is insufficiently clear. Even if we do not get that level of clarity today, when we come back later on and look at enforcement, it is really important that we know what we are trying to tackle here.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 2nd May 2023 Lords Chamber

[Viscount Colville of Culross (CB)]

I too wish my noble friend Lady Kidron a happy birthday.

I will speak to Amendment 261. Having sat through the Communications Committee’s inquiries on regulating the internet, it seemed to me that the real problem was the algorithms and the way they operated. We have heard that again and again throughout the course of the Bill. It is no good worrying just about the content, because we do not know what new services will be created by technology. This morning we heard on the radio from the Google AI expert, who said that we have no idea where AI will go or whether it will become cleverer than us; what we need to do is to keep an eye on it. In the Bill, we need to make sure that we are looking at the way technology is being developed and the possible harms it might create. I ask the Minister to include that in his future-proofing of the Bill, because, in the end, this is a very fast-moving world and ecosystem. We all know that what is present now in the digital world might well be completely changed within a few years, and we need to remain cognisant of that.

[Lord Clement-Jones (LD)]

My Lords, we have already had some very significant birthdays during the course of the Bill, and I suspect that, over many more Committee days, there will be many more happy birthdays to celebrate.

This has been a fascinating debate and the Committee has thrown up some important questions. On the second day, we had a very useful discussion of risk which, as the noble Lord, Lord Russell, mentioned, was prompted by my noble friend Lord Allan. In many ways, we have returned to that theme this afternoon. The noble Baroness, Lady Fox, who I do not always agree with, asked a fair question. As the noble Baroness, Lady Kidron, said, it is important to know what harms we are trying to prevent—that is how we are trying to define risk in the Bill—so that is an absolutely fair question.

The Minister has shown flexibility. Sadly, I was not able to be here for the previous debate, and it is probably because I was not that he conceded the point and agreed to put children’s harms in the Bill. That takes us a long way further, and I hope he will demonstrate that kind of flexibility as we carry on through the Bill.

The noble Lord, Lord Moylan, and I have totally different views about what risk it is appropriate for children to face. I am afraid that I absolutely cannot share his view that there is this level of risk. I do not believe it is about eliminating risk—I do not see how you can—but the Bill should be about preventing online risk to children; it is the absolute core of the Bill.

As the noble Lord, Lord Russell, said, the Joint Committee heard evidence from Frances Haugen about the business model of the social media platforms. We listened to Ian Russell, the father of Molly, talk about the impact of an unguarded internet on his daughter. It is within the power of the social media companies to do something about that; this is not unreasonable.

I was very interested in what the noble Viscount, Lord Colville, said. He is right that this is about algorithms, which, in essence, are what we are trying to get to in all the amendments in this really important group. It is quite possible to tackle algorithms if we have a requirement in the Bill to do so, and that is why I support Amendment 261, which tries to address to that.

However, a lot of the rest of the amendments are trying to do exactly the same thing. There is a focus not just on moderating harmful content but on the harmful systems that make digital services systematically unsafe for children. I listened with great interest to what the noble Lord, Lord Russell, said about the 5Rights research which he unpacked. We tend to think that media platforms such as Reddit are relatively harmless but that is clearly not the case. It is very interesting that the use of avatars is becoming quite common in the advertising industry to track where advertisements are ending up—sometimes, on pornography sites. It is really heartening that an organisation such as 5Rights has been doing that and coming up with its conclusions. It is extremely useful for us as policymakers to see the kinds of risks that our children are undertaking.

We were reminded about the origins—way back, it now seems—of the Carnegie duty of care. In a sense, we are trying to make sure that that duty of care covers the systems. We have talked about the functionality and harms in terms of risk assessment, about the child safety duties and about the codes of practice. All those need to be included within this discussion and this framework today to make sure that that duty of care really sticks.

I am not going to go through all the amendments. I support all of them: ensuring functionalities for both types of regulated service, and the duty to consider all harms and not just harmful content. It is absolutely not just about the content but making sure that regulated services have a duty to mitigate the impact of harm in general, not just harms stemming from content.

The noble Baroness, Lady Harding, made a terrific case, which I absolutely support, for making sure that the codes of practice are binding and principle based. At the end of the day, that could be the most important amendment in this group. I must admit that I was quite taken with her description of the Government’s response, which was internally contradictory. It was a very weak response to what I, as a member of the Joint Committee, thought was a very strong and clear recommendation about minimum standards.

This is a really important group of amendments and it would not be a difficult concession for the Government to make. They may wish to phrase things in a different way but we must get to the business case and the operation of the algorithms; otherwise, I do not believe this Bill is going to be effective.

I very much take on board what about the noble Viscount said about looking to the future. We do not know very much about some of these new generative AI systems. We certainly do not know a great deal about how algorithms within social media companies operate. We will come, no doubt, to later amendments on the ability to find out more for researchers and so on, but transparency was one of the things our Joint Committee was extremely keen on, and this is a start.

[Lord Knight of Weymouth (Lab)]

My Lords, I too agree that this has been a really useful and interesting debate. It has featured many birthday greetings to the noble Baroness, Lady Kidron, in which I obviously join. The noble Lord, Lord Moylan, bounced into the debate that tested the elasticity of the focus of the group, and bounced out again. Like the noble Lord, Lord Clement-Jones, I was particularly struck by the speech from the noble Baroness, Lady Harding, on the non-mandatory nature of the codes. Her points about reducing Ofcom’s workload, and mandatory codes having precedent, were really significant and I look forward to the Minister’s response.

If I have understood it correctly, the codes will be generated by Ofcom, and the Secretary of State will then table them as statutory instruments—so they will be statutory, non-mandatory codes, but with statutory penalties. Trying to unravel that in my mind was a bit of a thing as I was sitting there. Undoubtedly, we are all looking forward to the Minister’s definition of harm, which he promised us at the previous meeting of the Committee.

I applaud the noble Lord, Lord Russell, for the excellent way in which he set out the issues in this grouping and—along with the Public Bill Office—for managing to table these important amendments. Due to the Bill’s complexity, it is an achievement to get the relatively simple issue of safety by design for children into amendments to Clause 10 on children’s risk assessment duties for user-to-user services; Clause 11 on the safety duties protecting children; and the reference to risk assessments in Clause 19 on record-keeping. There is a similar set of amendments applying to search; to the duties in Clause 36 on codes of practice duties; to Schedule 4 on the content of codes of practice; and to Clause 39 on the Secretary of State’s powers of direction. You can see how complicated the Bill is for those of us attempting to amend it.

What the noble Lord and his amendments try to do is simple enough. I listened carefully to the noble Baroness, Lady Fox, as always. The starting point is, when designing, to seek to eliminate harm. That is not to say that they will eliminate all potential harms to children, but the point of design is to seek to eliminate harms if you possibly can. It is important to be clear about that. Of course, it is not just the content but the systems that we have been talking about, and ensuring that the codes of practice that we are going to such lengths to legislate for are stuck to—that is the point made by the noble Baroness, Lady Harding—relieving Ofcom of the duty to assess all the alternative methods. We certainly support the noble Lord, Lord Russell, in his amendments. They reinforce that it is not just about the content; the algorithmic dissemination, in terms of volume and context, is really important, especially as algorithms are dynamic—they are constantly changing in response to the business models that underpin the user-to-user services that we are debating.

The business models want to motivate people to be engaged, regardless of safety in many ways. We have had discussion of the analogy on cars and planes from the noble Lord, Lord Allan. As I recall, in essence he said that in this space there are some things that you want to regulate like planes, to ensure that there are no accidents, and some where you trade off freedom and safety, as we do with the regulation of cars. In this case, it is a bit more like regulating for self-driving cars; in that context, you will design a lot more around trying to anticipate all the things that humans when driving will know instinctively, because they are more ethical individuals than you could ever programme an AI to be when driving a car. I offer that slight adjustment, and I hope that it helps the noble Lord, Lord Moylan, when he is thinking about trains, planes and automobiles.

In respect of the problem of the business models and their engagement over safety, I had contact this weekend and last week from friends much younger than I am, who are users of Snap. I am told that there is an AI chatbot on Snap, which I am sure is about engaging people for longer and collecting more data so that you can engage them even longer and, potentially, collect data to drive advertising. But you can pay to get rid of that chatbot, which is the business model moving somewhere else as and when we make it harder for it to make money as it is. Snap previously had location sharing, which you had to turn off. It created various harms and risks for children that their location was being shared with other people without them necessarily authorising it. We can all see how that could create issues.

--- Later in debate ---

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

My Lords, I join in the chorus of good wishes to the bungee-jumping birthday Baroness, Lady Kidron. I know she will not have thought twice about joining us today in Committee for scrutiny of the Bill, which is testament to her dedication to the cause of the Bill and, more broadly, to protecting children online. The noble Lord, Lord Clement-Jones, is right to note that we have already had a few birthdays along the way; I hope that we get only one birthday each before the Bill is finished.

[Lord Clement-Jones (LD)]

My birthday is in October, so I hope not.

--- Later in debate ---

[Lord Clement-Jones (LD)]

I hope that the Minister has in his brief a response to the noble Baroness’s point about Clause 11(14), which, I must admit, comes across extraordinarily in this context. She quoted it, saying:

“The duties set out … are to be taken to extend only to content that is harmful to children where the risk of harm is presented by the nature of the content (rather than the fact of its dissemination)”.


Is not that exception absolutely at the core of what we are talking about today? It is surely therefore very difficult for the Minister to say that this applies in a very broad way, rather than purely to content.

[Lord Parkinson of Whitley Bay (Con)]

I will come on to talk a bit about dissemination as well. If the noble Lord will allow me, he can intervene later on if I have not done that to his satisfaction.

I was about to talk about the child safety duties in Clause 11(5), which also specifies that they apply to the way that a service is designed, how it operates and how it is used, as well as to the content facilitated by it. The definition of content makes it clear that providers are responsible for mitigating harm in relation to all communications and activity on their service. Removing the reference to content would make service providers responsible for all risk of harm to children arising from the general operation of their service. That could, for instance, bring into scope external advertising campaigns, carried out by the service to promote its website, which could cause harm. This and other elements of a service’s operations are already regulated by other legislation.

--- Later in debate ---

The Bill requires providers to specifically consider as part of their risk assessments how algorithms could affect children’s exposure to illegal content and content which is harmful to children on their service. Service providers will need specifically to consider the harm from content that arises from the manner of dissemination —for example, content repeatedly sent to someone by a person or persons, which is covered in Clause 205(3)(c). Providers will also need to take steps to mitigate and effectively manage any risks, and to consider the design of functionalities, algorithms and other features to meet their illegal content and child safety duties. Ofcom will have a range of powers at its disposal to help it assess whether providers are fulfilling their duties. That includes the power to require information from providers about the operation of their algorithms.

[Lord Clement-Jones (LD)]

Can the Minister assure us that he will take another look at this between Committee and Report? He has almost made the case for this wording to be taken out—he said that it is already covered by a whole number of different clauses in the Bill—but it is still here. There is still an exception which, if the Minister is correct, is highly misleading: it means that you have to go searching all over the Bill to find a way of attacking the algorithm, essentially, and the way that it amplifies, disseminates and so on. That is what we are trying to get to: how to address the very important issue not just of content but of the way that the algorithm operates in social media. This seems to be highly misleading, in the light of what the Minister said.

[Lord Parkinson of Whitley Bay (Con)]

I do not think so, but I will certainly look at it again, and I am very happy to speak to the noble Lord as I do. My point is that it would not be workable or proportionate for a provider to prevent or protect all children from encountering every single instance of the sort of content that I have just outlined, which would be the effect of these amendments. I will happily discuss that with the noble Lord and others between now and Report.

Amendment 27, by the noble Lord, Lord Stevenson, seeks to add a duty to prevent children encountering targeted paid-for advertising. As he knows, the Bill has been designed to tackle harm facilitated through user-generated content. Some advertising, including paid-for posts by influencers, will therefore fall under the scope of the Bill. Companies will need to ensure that systems for targeting such advertising content to children, such as the use of algorithms, protect them from harmful material. Fully addressing the challenges of paid-for advertising is a wider task than is possible through the Bill alone. The Bill is designed to reduce harm on services which host user-generated content, whereas online advertising poses a different set of problems, with different actors. The Government are taking forward work in this area through the online advertising programme, which will consider the full range of actors and sector-appropriate solutions to those problems.

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[Baroness Foster of Aghadrumsee (Non-Afl)]

So it is an interpretive document. The unintended consequences piece was around general comment No. 25 specifically having reference to children being able to seek out content. That is certainly something that I would be concerned about. I am sure that we will discuss it further in the next group of amendments, which are on pornography. If young people were able to seek out harmful content, that would concern me greatly.

I support Amendments 187 and 196, but I have some concerns about the unintended consequences of Amendment 25.

[Lord Clement-Jones (LD)]

My Lords, I think this may have been a brief interlude of positivity. I am not entirely convinced, in view of some of the points that have been made, but certainly I think that it was intended to be.

I will speak first to Amendments 30 and 105. I do not know what the proprieties are, but I needed very little prompting from the LEGO Group to put forward amendments that, in the online world, seek to raise the expectation that regulated services must go beyond purely the avoidance of risk of harm and consider the positive benefits that technology has for children’s development and their rights and overall well-being. It has been extremely interesting to hear that aspect of today’s debate.

It recognises that through the play experience of children, both offline and online, it has an impact on the lives of millions of children that it engages with around the world, and it recognises the responsibility to ensure that, wherever it engages with them, the impact is positive and that it protects and upholds the rights of children and fosters their well-being as part of its mission.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 25th April 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, earlier today the noble Baroness, Lady Benjamin, referred to a group of us as kindred spirits. I suggest that all of us contributing to this debate are kindred spirits in our desire to see consistent outcomes. All of us would like to see a world where our children never see pornography on any digital platform, regardless of what type of service it is. At the risk of incurring the ire of my noble friend Lord Moylan, we should have zero tolerance for children seeing and accessing pornography.

I agree with the desire to be consistent, as the noble Baroness, Lady Ritchie, and the noble Lord, Lord Browne, said, but it is consistency in outcomes that we should focus on. I am very taken with the point made by the noble Lord, Lord Allan, that we must be very careful about the unintended consequences of a consistent regulatory approach that might end up with inconsistent outcomes.

When we get to it later—I am not sure when—I want to see a regulatory regime that is more like the one reflected in the amendments tabled by the noble Baroness, Lady Kidron, and my noble friend Lord Bethell. We need in the Bill a very clear definition of what age assurance and age verification are. We must be specific on the timing of introducing the regulatory constraints on pornography. We have all waited far too long for that to happen and that must be in the Bill.

I am nervous of these amendments that we are debating now because I fear other unintended consequences. Not only does this not incentivise general providers, as the noble Lord, Lord Allan, described them, to remove porn from their sites but I fear that it incentivises them to remove children from their sites. That is the real issue with Twitter. Twitter has very few child users; I do not want to live in a world where our children are removed from general internet services because we have not put hard age gates on the pornographic content within them but instead encouraged those services to put an age gate on the front door. Just as the noble Lord, Lord Allan, said earlier today, I fear that, with all the best intentions, the desire to have consistent outcomes and these current amendments would regulate the high street rather than the porn itself.

[Lord Clement-Jones (LD)]

My Lords, there is absolutely no doubt that across the Committee we all have the same intent; how we get there is the issue between us. It is probably about the construction of the Bill, rather than the duties that we are imposing.

It is a pleasure again to follow the noble Baroness, Lady Harding. If you take what my noble friend Lord Allan said about a graduated response and consistent outcomes, you then get effective regulation.

I thought that the noble Baroness, Lady Kidron, had it right. If we passed her amendments in the second group, and included the words “likely to be accessed”, Clause 11 would bite and we would find that there was consistency of outcomes for primary priority content and so on, and we would then find ourselves in much the same space. However, it depends on the primary purpose. The fear that we have is this. I would not want to see a Part 5 service that adds user-generated content then falling outside Part 5 and finding itself under Part 3, with a different set of duties.

I do not see a huge difference between Part 3 and Part 5, and it will be very interesting when we come to debate the later amendments tabled by the noble Lord, Lord Bethell, and the noble Baroness, Lady Kidron. Again, why do we not group these things together to have a sensible debate? We seem to be chunking-up things in a different way and so will have to come back to this and repeat some of what we have said. However, I look forward to the debate on those amendments, which may be a much more effective way of dealing with this than trying to marry Part 5 and Part 3.

I understand entirely the motives of the noble Baroness, Lady Ritchie, and that we want to ensure that we capture this. However, it must be the appropriate way of regulating and the appropriate way of capturing it. I like the language about consistent outcomes without unintended consequences.

--- Later in debate ---

In her Amendment 125A, the noble Baroness, Lady Ritchie of Downpatrick, raises concerns that a provider of pornographic content could move from being a Part 5 service to a Part 3 service if they allow comments or reviews on their content. I am grateful to her for raising and discussing the issue earlier. Amendment 125A in her name intends to narrow—

[Lord Clement-Jones (LD)]

I am sorry, but can the Minister just clarify that? Is he saying that it is not possible to be covered by both Part 3 and Part 5, so that where a Part 5 service has user-generated content it is also covered by Part 3? Can he clarify that you cannot just escape Part 5 by adding user-generated content?

[Lord Parkinson of Whitley Bay (Con)]

Yes, that is correct. I was trying to address the points raised by the noble Baroness, but the noble Lord is right. The point on whether people might try to be treated differently by allowing comments or reviews on their content is that they would be treated the same way. That is the motivation behind the noble Baroness’s amendment trying to narrow the definition. There is no risk that a publisher of pornographic content could evade their Part 5 duties by enabling comments or reviews on their content. That would be the case whether or not those reviews contained words, non-verbal indications that a user liked something, emojis or any other form of user-generated content.

That is because the Bill has been designed to confer duties on different types of content. Any service with provider pornographic content will need to comply with the Part 5 duties to ensure that children cannot normally encounter such content. If they add user-generated functionality—

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 25th April 2023 Lords Chamber

[Baroness Berridge (Con)]

My Lords, I will lend my support to Amendments 19 and 22. It is a pleasure to speak after the noble Baroness, Lady Benjamin. I may be one of those people in your Lordships’ House who relies significantly on the British Board of Film Classification for movie watching, as I am one of the faint-hearted.

In relation to app stores, it is not just children under 18 for whom parents need the age verification. If you are a parent of a child who has significant learning delay, the internet is a wonderful place where they can get access to material and have development that they might not ordinarily have had. But, of course, turning 17 or 18 is not the threshold for them. I have friends who have children with significant learning delay. Having that assurance, so they know which apps are which in the app store, goes well beyond 18 for them. Obviously it will not be a numerical equivalent for their child—now a young adult—but it is important to them to know that the content they get on a free app or an app purchased from the app store is suitable.

I just wanted to raise that with noble Lords, as children and some vulnerable adults—not all—would benefit from the kind of age verification that we have talked about. I appreciate the points that the noble Lord, Lord Allan, raised about where the Bill has ended up conceptually and the framework that Ofcom will rely on. Like him, I am a purist sometimes but, pragmatically, I think that the third concept raised by the noble Baroness, Lady Kidron, about protection and putting this in the app store and bringing it parallel with things such as classification for films and other video games is really important.

[Lord Clement-Jones (LD)]

My Lords, this has been a really fascinating debate and I need to put a stake in the ground pretty early on by saying that, although my noble friend Lord Allan has raised some important points and stimulated an important debate, I absolutely agree with the vast majority of noble Lords who have spoken in favour of the amendment so cogently put forward by the noble Baronesses, Lady Kidron and Lady Harding.

Particularly as a result of the Bill’s being the subject of a Joint Committee, it has changed considerably over time in response to comment, pressure, discussion and debate and I believe very much that during Committee stage we will be able to make changes, and I hope the Minister will be flexible enough. I do not believe that the framework of the Bill is set in concrete. There are many things we can do as we go through, particularly in the field of making children safer, if we take some of the amendments that have been put forward on board. In particular, the noble Baroness, Lady Kidron, set out why the current scope of the Bill will fail to protect children if it is kept to user-to-user and search services. She talked about blogs with limited functionalities, gaming without user functionalities and mentioned the whole immersive environment, which the noble Lord, Lord Russell, described as eye-watering. As she said, it is not fair to leave parents or children to work out whether they are on a regulated service. Children must be safe wherever they are online.

As someone who worked with the noble Baroness, Lady Kidron, in putting the appropriate design code in place in that original Data Protection Act, I am a fervent believer that it is perfectly appropriate to extend in the way that is proposed today. I also support her second amendment, which would bring the Bill’s child user condition in line with the threshold of the age-appropriate design code. It is the expectation—I do not think it an unfair expectation—of parents, teachers and children themselves that the Bill will apply to children wherever they are online. Regulating only certain services will mean that emerging technologies that do not fit the rather narrow categories will not be subject to safety duties.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Harding. If one is permitted to say this in the digital age, I am on exactly the same page as she is.

There are two elements to the debate on this group. It is partly about compliance, and I absolutely understand the point about the costs of that, but I also take comfort from some of the things that the noble Lord. Lord Vaizey, said about the way that Ofcom is going to deliver the regulation and the very fact that this is going to be largely not a question of interpretation of the Act, when it comes down to it, but is going to be about working with the codes of practice. That will be a lot more user-friendly than simply having to go to expensive expert lawyers, as the noble Baroness, Lady Fox, said—not that I have anything against expensive expert lawyers.

I am absolutely in agreement with the noble Baroness, Lady Kidron, that small is not safe. As the noble Baroness, Lady Harding, described, small can become big. We looked at this in our Joint Committee and recommended to the Government that they should take a more nuanced approach to regulation, based not just on size and high-level functionality but on factors such as risk, reach, user base, safety performance and business model. All those are extremely relevant but risk is the key, right at the beginning. The noble Baroness, Lady Fox, also said that Reddit should potentially be outside, but Reddit has had its own problems, as we know. On that front, I am on absolutely the same page as those who have spoken about keeping us where we are.

The noble Lord, Lord Moylan, has been very cunning in the way that he has drawn up his Amendment 9. I am delighted to be on the same page as my noble friend —we are making progress—but I agree only with the first half of the amendment because, like the noble Baroness, Lady Kidron, I am a financial contributor to Wikipedia. A lot of us depend on Wikipedia; we look up the ages of various Members of this House when we see them in full flight and think, “Good heavens!” Biographies are an important part of this area. We have all had Jimmy Wales saying, as soon as we get on to Wikipedia, “You’ve already looked at Wikipedia 50 times this month. Make a contribution”, and that is irresistible. There is quite a strong case there. It is risk-based so it is not inconsistent with the line taken by a number of noble Lords in all this. I very much hope that we can get something out of the Minister—maybe some sort of sympathetic noises for a change—at this stage so that we can work up something.

I must admit that the briefing from Wikimedia, which many of us have had, was quite alarming. If the Bill means that we do not have users in high-risk places then we will find that adults get their information from other sources that are not as accurate as Wikipedia —maybe from ChatGPT or GPT-4, which the noble Lord, Lord Knight, is clearly very much an expert in—and that marginalised websites are shut down.

[Lord Allan of Hallam (LD)]

For me, one of the features of the schedule’s list of exempted sites is foreign state entities. Therefore, we could end up in the absurd situation where you could not read about the Ukraine war on Wikipedia, but you would be able to read about the Ukraine war on the Russian Government website.

[Lord Clement-Jones (LD)]

My Lords, if we needed an example of something that gave us cause for concern, that would be it; but a very good case has been made, certainly for the first half of the amendment in the name of the noble Lord, Lord Moylan, and we on these Benches support it.

[Baroness Merron (Lab)]

My Lords, it has certainly been an interesting debate, and I am grateful to noble Lords on all sides of the Committee for their contributions and considerations. I particularly thank the noble Lords who tabled the amendments which have shaped the debate today.

In general, on these Benches, we believe that the Bill offers a proportionate approach to tackling online harms. We feel that granting some of the exemptions proposed in this group would be unintentionally counterproductive and would raise some unforeseen difficulties. The key here—and it has been raised by a number of noble Lords, including the noble Baronesses, Lady Harding and Lady Kidron, and, just now, the noble Lord, Lord Clement-Jones, who talked about the wider considerations of the Joint Committee and factors that should be taken into account—is that we endorse a risk-based approach. In this debate, it is very important that we take ourselves back to that, because that is the key.

My view is that using other factors, such as funding sources or volunteer engagement in moderation, cuts right across this risk-based approach. To refer to Amendment 4, it is absolutely the case that platforms with fewer than 1 million UK monthly users have scope to create considerable harm. Indeed, noble Lords will have seen that later amendments call for certain small platforms to be categorised on the basis of the risk—and that is the important word—that they engender, rather than the size of the platform, which, unfortunately, is something of a crude measure. The point that I want to make to the noble Baroness, Lady Fox, is that it is not about the size of the businesses and how they are categorised but what they actually do. The noble Baroness, Lady Kidron, rightly said that small is not safe, for all the reasons that were explained, including by the noble Baroness, Lady Harding.

Amendment 9 would exempt small and medium-sized enterprises and certain other organisations from most of the Bill’s provisions. I am in no doubt about the well-meaning nature of this amendment, tabled by the noble Lord, Lord Moylan, and supported by the noble Lord, Lord Vaizey. Indeed, there may well be an issue about how start-ups and entrepreneur unicorns cope with the regulatory framework. We should attend to that, and I am sure that the Minister will have something to say about it. But I also expect that the Minister will outline why this would actually be unhelpful in combating many of the issues that this Bill is fundamentally designed to deal with if we were to go down the road of these exclusions.

In particular, granting exemptions simply on the basis of a service’s size could lead to a situation where user numbers are capped or perhaps even where platforms are deliberately broken up to avoid regulation. This would have an effect that none of us in this Chamber would want to see because it would embed harmful content and behaviour rather than helping to reduce them.

Referring back to the comments of the noble Lord, Lord Moylan, I agree with the noble Lord, Lord Vaizey, in his reflection. I, too, have not experienced the two sides of the Chamber that the noble Lord, Lord Moylan, described. I feel that the Chamber has always been united on the matter of child safety and in understanding the ramifications for business. It is the case that good legislation must always seek a balance, but, to go back to the point about excluding small and medium-sized enterprises, to call them a major part of the British economy is a bit of an understatement when they account for 99.9% of the business population. In respect of the exclusion of community-based services, including Wikipedia—and we will return to this in the next group—there is nothing for platforms to fear if they have appropriate systems in place. Indeed, there are many gains to be had for community-based services such as Wikipedia from being inside the system. I look forward to the further debate that we will have on that.

I turn to Amendment 9A in the name of my noble friend Lord Knight of Weymouth, who is unable to participate in this section of the debate. It probes how the Bill’s measures would apply to specialised search services. Metasearch engines such as Skyscanner have expressed concern that the legislation might impose unnecessary burdens on services that pose little risk of hosting the illegal content targeted by the Bill. Perhaps the Minister, in his response, could confirm whether or not such search engines are in scope. That would perhaps be helpful to our deliberations today.

While we on these Benches are not generally supportive of exemptions, the reality is that there are a number of online search services that return content that would not ordinarily be considered harmful. Sites such as Skyscanner and Expedia, as we all know, allow people to search for and book flights and other travel services such as car hire. Obviously, as long as appropriate due diligence is carried out on partners and travel agents, the scope for users to encounter illegal or harmful material appears to be minimal and returns us to the point of having a risk-based approach. We are not necessarily advocating for a carve-out from the Bill, but it would perhaps be helpful to our deliberations if the Minister could outline how such platforms will be expected to interact with the Ofcom-run online safety regime.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, to go back not just to the age question, the noble Lord, Lord Allan of Hallam, reminded us that community-led moderation is not just Wikipedia. What I tried to hint at earlier is that that is one of the most interesting, democratic aspects of the online world, which we should protect.

We often boast that we are a self-regulating House and that that makes us somehow somewhat superior to up the road—we are all so mature because we self-regulate; people do behave badly but we decide. It is a lesson in democracy that you have a self-regulating House, and there are parts of the online world that self-regulate. Unless we think that the citizens of the UK are less civilised than Members of the House of Lords, which I would refute, we should say that it is positive that there are self-moderating, self-regulating online sites. If you can say something and people can object and have a discussion about it, and things can be taken down, to me that is the way we should deal with speech that is inappropriate or wrong. The bulk of these amendments—I cannot remember how many there are now—are right.

I was glad that the noble Lord, Lord Moylan, said he could not understand why this grouping had happened, which is what I said earlier. I had gone through a number of groupings thinking: “What is that doing there? Am I missing something? Why is that in that place?” I think we will come back to the age verification debate and discussion.

One thing to note is that one of the reasons organisations such as Wikipedia would be concerned about age verification—and they are—is anonymity. It is something we have to consider. What is going to happen to anonymity? It is so important for journalists, civil liberty activists and whistleblowers. Many Wikipedia editors are anonymised, maybe because they are politically editing sites on controversial issues. Imagine being a Wikipedia editor from Russia at the moment—you would not want to have to say who you are. We will come back to it but it is important to understand that Amendment 26, and those who are saying that we should look at the question of age verification, are not doing so because they do not care about children and are not interested in protecting them. However, the dilemmas of any age-gating or age verification for adult civil liberties have to be considered. We have to worry that, because of an emphasis on checking age, some websites will decide to sanitise what they allow to be published to make it suitable for children, just in case they come across it. Again, that will have a detrimental impact on adult access to all knowledge.

These will be controversial issues, and we will come back to them, but it is good to have started the discussion.

[Lord Clement-Jones (LD)]

My Lords, this has been a very strange debate. It has been the tail end of the last session and a trailer for a much bigger debate coming down the track. It was very odd.

We do not want to see everything behind an age-gating barrier, so I agree with my noble friend. However, as the noble Baroness, Lady Kidron, reminded us, it is all about the risk profile, and that then leads to the kind of risk assessment that a platform is going to be required to carry out. There is a logic to the way that the Bill is going to operate.

When you look at Clause 11(3), you see that it is not disproportionate. It deals with “primary priority content”. This is not specified in the Bill but it is self-harm and pornography—major content that needs age-gating. Of course we need to have the principles for age assurance inserted into the Bill as well, and of course it will be subject to debate as we go forward.

There is technology to carry out age verification which is far more sophisticated than it ever was, so I very much look forward to that debate. We started that process in Part 3 of the Digital Economy Act. I was described as an internet villain for believing in age verification. I have not changed my view, but the debate will be very interesting. As regards the tail-end of the previous debate, of course we are sympathetic on these Benches to the Wikipedia case. As we said on the last group, I very much hope that we will find a way, whether it is in Schedule 1 or in another way, of making sure that Wikipedia is not affected overly by this—maybe the risk profile that is drawn up by Ofcom will make sure that Wikipedia is not unduly impacted.

[Lord Stevenson of Balmacara (Lab)]

Like others, I had prepared quite extensive notes to respond to what I thought the noble Lord was going to say about his amendments in this group, and I have not been able to find anything left that I can use, so I am going to have to extemporise slightly. I think it is very helpful to have a little non-focused discussion about what we are about to talk about in terms of age, because there is a snare and a delusion in quite a lot of it. I was put in mind of that in the discussions on the Digital Economy Act, which of course precedes the Minister but is certainly still alive in our thinking: in fact, we were talking about it earlier today.

The problem I see is that we have to find a way of squaring two quite different approaches. One is to prevent those who should not be able to see material, because it is illegal for them to see it. The other is to find a way of ensuring that we do not end up with an age-gated internet, which I am grateful to find that we are all, I think, agreed about: that is very good to know.

Age is very tricky, as we have heard, and it is not the only consideration we have to bear in mind in wondering whether people should be able to gain access to areas of the internet which we know will be bad and difficult for them. That leads us, of course, to the question about legal but harmful, now resolved—or is it? We are going to have this debate about age assurance and what it is. What is age verification? How do they differ? How does it matter? Is 18 a fixed and final point at which we are going to say that childhood ends and adulthood begins, and therefore one is open for everything? It is exactly the point made earlier about how to care for those who should not be exposed to material which, although legal for them by a number called age, is not appropriate for them in any of the circumstances which, clinically, we might want to bring to bear.

I do not think we are going to resolve these issues today—I hope not. We are going to talk about them for ever, but at this stage I think we still need a bit of thinking outside a box which says that age is the answer to a lot of the problems we have. I do not think it is, but whether the Bill is going to carry that forward I have my doubts. How we get that to the next stage, I do not know, but I am looking forward to hearing the Minister’s comments on it.

--- Later in debate ---

[Baroness Kidron (CB)]

I also welcome these amendments, but I have two very brief questions for the Minister. First, in Amendment 27A, it seems that the child risk assessment is limited only to category 1 services and will be published only in the terms of service. As he probably knows, 98% of people do not read terms of service, so I wondered where else we might find this, or whether there is a better way of dealing with it.

My second question is to do with Amendments 64A and 88A. It seems to me—forgive me if I am wrong—that the Bill previously stipulated that all regulated search and user services had to make and keep a written record of any measure taken in compliance with a relevant duty, but now it seems to have rowed back to only category 1 and 2A services. I may be wrong on that, but I would like to check it for the record.

[Lord Clement-Jones (LD)]

My Lords, the noble Baroness, Lady Kidron, put her finger exactly on the two questions that I wanted to ask: namely, why only category 1 and category 2A, and is there some rowing back involved here? Of course, none of this prejudices the fact that, when we come later in Committee to talk about widening the ambit of risk assessments to material other than that which is specified in the Bill, this kind of transparency would be extremely useful. But the rationale for why it is only category 1 and category 2A in particular would be very useful to hear.

Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Wednesday 19th April 2023 Lords Chamber

[Lord Cormack (Con)]

Of course we should not. What I am saying is that this amendment is simple. If it is in the Bill, it should then be what we are aiming to create as the Bill goes through this House, with our hours of scrutiny. I shall not take part in many parts of this Bill, as I am not equipped to do so, but there are many in this House who are. Having been set the benchmark of this amendment, they can seek to make the Bill comprehensible to those of us—and that seems to include the noble Baroness, Lady Fox—who at the moment find it incomprehensible.

In a way, we are dealing with the most important subject of all: the protection of childhood innocence. We have got to err in that direction. Although I yield to no one in my passionate belief in the freedom of speech, it must have respect for the decencies of life and not be propagator of the profanities of life.

[Lord Clement-Jones (LD)]

My Lords, I think we need to move now to closing speeches, if that seems appropriate—

[Baroness Chakrabarti (Lab)]

I have tried to be patient, and I will be very brief. A lot has been said about a lawyer’s paradise. At the moment, the lawyers are over here and paradise is over there and there is a gulf between us. Like the noble Lord, Lord Allan of Hallam, I declare my former interest. I did not get any shillings from Facebook or any other big tech empires, but I was a government lawyer for some years, and it is in that vein that I may have a small contribution to make, if the noble Lord, Lord Clement-Jones, does not mind.

There can be a real benefit to an amendment such as this. I want to explain why, not by repeating anything that I said at Second Reading on the substance of the Bill but by speaking from the perspective of legislative drafting and its policy. I will confine my short remarks to that.

In my view, length is always an issue. My noble friend was quite right when he moved his amendment to say that the burden was on him because he was going to add to the length of a very long Bill. In my experience as a government lawyer for about five and half years, with the mixed privilege of sitting over there through many Bills, sometimes counterintuitively a little extra length can actually aid clarity. Sometimes, a very tightly drafted Bill that is complex can be more difficult to read if, for example, it has many schedules and you need a number of copies open at any one time in order to make reference to what will be substantive sections and subsections of the Act. Ironically, it is sometimes beneficial to add a clause of this kind.

There are, I would argue, three potential reasons why Governments sometimes want to do this in relation to legislative policy. One reason is accessibility, and that has been mentioned by a number of noble Lords today. That is, I think, generally a good thing. It is not easy to achieve; I do not blame any colleagues in the Box or the Office of the Parliamentary Counsel, or Ministers, for the challenge of legislating in a complex, fast-developing area that is only going to change over time. But accessibility can be aided at times by a provision of the kind that my noble friend Lord Stevenson of Balmacara, the noble Baroness, Lady Kidron, and others are proposing.

A second possible reason is to aid interpretation, which can be very beneficial as well. That is not just interpretation for judges, litigators and these wicked barracuda lawyers that everyone is so concerned about. Interpretation is important in practice when people are having to deal on a day-to-day basis with the functioning of contentious and important legislation; that is when they have executive, regulatory and legislative functions under a measure of this kind. It is to aid their interpretation—a point made rather well, if I may say so, by the noble Baroness, Lady Harding.

So, it is not just about interpretation for lawyers, in order to sue based on what things mean; it is to aid regulators of those in the regulated sector and, potentially, members of the public and pressure groups, with some advice. As a lawyer, I consider myself a half-decent legislative professional, and this is a complex Bill for me. It would be aided by a provision of the kind my noble friends are proposing. I am saying this, really, to tempt the Minister seriously to consider something like it. I suppose I am partly trying to pre-empt what I suspect is in his brief to say by way of rebuttal in just a moment.

The third potential reason to have a provision like this at the beginning of the Bill is pure politics, and we sometimes see that in Bills: it is total flummery, and just a way of making a big political statement of intent. That is never, in my view, a good enough reason by itself. But that is not what is happening or what is suggested in my noble friend’s amendment.

I now come to complexity and the benefits of a purposive provision in this Bill. Before the Minister says that it is not appropriate, not what we do and not what parliamentary counsel does, may I remind noble Lords of another Bill going through Parliament at the moment? In contrast to this Bill, which consists of 247 pages, 212 clauses and 17 schedules, we are going to have another controversial—more controversial, I would argue—Bill in due course with a mere 59 pages, 58 clauses and one schedule, which is just a list of countries. That Illegal Migration Bill has, in fact, a purposive provision right at the beginning, in the first subsection of Clause 1. I am not making a point about the substance of that legislation; I am just pre-empting any argument that this is not what we do and not how we draft Bills. Sometimes, it appears, it is. As I say, it is a much shorter, much simpler, dare I say even more controversial Bill, and perhaps there is more politics there than accessibility of interpretation.

That was my cheap point. What I really want to say to all noble Lords in this Committee is that for the purposes of debating this amendment, let us put to one side what we think about the Bill and the various clauses and amendments we would like to see or not see. Let us just ask: is this amendment as drafted and the approach recommended by my noble friend going to aid accessibility and interpretation—not litigation and lawyers and those wicked people in my profession, but the people who, day to day, will have to live and work with the proposed new regime? Whatever one’s views—be they those of the noble Baroness, Lady Fox, or others—about the Bill as it stands or as it should or should not stand, as amended, something like Amendment 1, in my submission, is a very good idea.

--- Later in debate ---

[Baroness Stowell of Beeston (Con)]

My Lords, just before the noble Lord, Lord Clement-Jones gets to wind up, I wanted to ask a question and make a point of clarification. I am grateful for the contribution from the noble Baroness, Lady Chakrabarti; that was a helpful point to make.

My question, which I was going to direct to the noble Lord, Lord Stevenson—although it may be one that the noble Lord, Lord Clement-Jones, wants to respond to if the noble Lord, Lord Stevenson, is not coming back—is about the use of the word “purpose” versus “objective”. The point I was trying to make in referring to the Joint Committee’s report was that, when it set out the limbs of this amendment, it was referring to them as objectives for Ofcom. What we have here is an amendment that is talking about purposes of the Bill, and in the course of this debate we have been talking about the need for clarity of purpose. The point I was trying to make was not that I object to the contents of this amendment, but that if we are looking for clarity of purpose to inform the way we want people to behave as a result of this legislation, I would make it much shorter and simpler, which is why I pointed to subsection (g) of the proposed clause.

It may be that the content of this amendment—and this is where I pick up the point the noble Baroness, Lady Chakrabarti, was making—is not objectionable, although I take the point made by the noble Baroness, Lady Fox. However, the noble Baroness, Lady Chakrabarti, is right: at the moment, let us worry less about the specifics. Then, we can be clearer about what bits of the amendment are meant to be doing what, rather than trying to get all of them to offer clarity of purpose. That is my problem with it: there are purposes, which, as I say, are helpful structurally in terms of how an organisation might go about its work, and there is then the clarity of purpose that should be driving everything. The shorter, simpler and more to the point we can make that, the better.

[Lord Clement-Jones (LD)]

My Lords, I thank the noble Baroness. I hope I have not appeared to rush the proceedings, but I am conscious that there are three Statements after the Bill. I thank the noble Lord, Lord Stevenson, for tabling this amendment, speaking so cogently to it and inspiring so many interesting and thoughtful speeches today. He and I have worked on many Bills together over the years, and it has been a real pleasure to see him back in harness on the Opposition Front Bench, both in the Joint Committee and on this Bill. Long may that last.

It has been quite some journey to get to this stage of the Bill; I think we have had four Digital Ministers and five Prime Ministers since we started. It is pretty clear that Bismarck never said, “Laws are like sausages: it’s best not to see them being made”, but whoever did say it still made a very good point. The process leading to today’s Bill has been particularly messy, with Green and White Papers; a draft Bill; reports from the Joint Committee and Lords and Commons Select Committees; several versions of the Bill itself; and several government amendments anticipated to come. Obviously, the fact that the Government chose to inflict last-minute radical surgery on the Bill to satisfy what I believe are the rather unjustified concerns of a small number in the Government’s own party made it even messier.

It is extremely refreshing, therefore, to start at first principles, as the noble Lord, Lord Stevenson, has done. He has outlined them and the context in which we should see them—namely, we should focus essentially on the systems, what is readily enforceable and where safety by design and transparency are absolutely the essence of the purpose of the Bill. I share his confidence in Ofcom and its ability to interpret those purposes. I say to the noble Baroness, Lady Stowell, that I am not going to dance on the heads of too many pins about the difference between “purpose” and “objective”. I think it is pretty clear what the amendment intends, but I do have a certain humility about drafting; the noble Baroness, Lady Chakrabarti, reminded us of that. Of course, one should always be open to change and condensation of wording if we need to do that. But we are only at Amendment 1 in Committee, so there is quite a lot of water to flow under the bridge.

It is very heartening that there is a great deal of cross-party agreement about how we must regulate social media going forward. These Benches—and others, I am sure—will examine the Bill extremely carefully and will do so in a cross-party spirit of constructive criticism, as we explained at Second Reading. Our Joint Committee on the draft Bill exemplified that cross-party spirit, and I am extremely pleased that all four signatories to this amendment served on the Joint Committee and readily signed up to its conclusions.

Right at the start of our report, we made a strong case for the Bill to set out these core objectives, as the noble Lord, Lord Stevenson, has explained, so as to provide clarity—that word has been used around the Committee this afternoon—for users and regulators about what the Bill is trying to achieve and to inform the detailed duties set out in the legislation. In fact, I believe that the noble Lord, Lord Stevenson, has improved on that wording by including a duty on the Secretary of State, as well as Ofcom, to have regard to the purposes.

We have heard some very passionate speeches around the Committee for proper regulation of harms on social media. The case for that was made eloquently to the Joint Committee by Ian Russell and by witnesses such as Edleen John of the FA and Frances Haugen, the Facebook whistleblower. A long line of reports by Select Committees and all-party groups have rightly concluded that regulation is absolutely necessary given the failure of the platforms even today to address the systemic issues inherent in their services and business models.

The introduction to our Joint Committee report makes it clear that without the original architecture of a duty of care, as the White Paper originally proposed, we need an explicit set of objectives to ensure clarity for Ofcom when drawing up the codes and when the provisions of the Bill are tested in court, as they inevitably will be. Indeed, in practice, the tests that many of us will use when judging whether to support amendments as the Bill passes through the House are inherently bound up with these purposes, several of which many of us mentioned at Second Reading. Decisions may need to be made on balancing some of these objectives and purposes, but that is the nature of regulation. I have considerable confidence, as I mentioned earlier, in Ofcom’s ability to do this, and those seven objectives—as the right reverend Prelate reminded us, the rule of seven is important in other contexts—set that out.

In their response to the report published more than a year ago, the Government repeated at least half of these objectives in stating their own intentions for the Bill. Indeed, they said:

“We are pleased to agree with the Joint Committee on the core objectives of the Bill”,


and, later:

“We agree with all of the objectives the Joint Committee has set out, and believe that the Bill already encapsulates and should achieve these objectives”.


That is exactly the point of dispute: we need this to be explicit, and the Government seem to believe that it is implicit. Despite agreeing with those objectives, at paragraph 21 of their response the Government say:

“In terms of the specific restructure that the Committee suggested, we believe that using these objectives as the basis for Ofcom’s regulation would delegate unprecedented power to a regulator. We do not believe that reformulating this regulatory framework in this way would be desirable or effective. In particular, the proposal would leave Ofcom with a series of high-level duties, which would likely create an uncertain and unclear operating environment”.


That is exactly the opposite of what most noble Lords have been saying today.

It has been an absolute pleasure to listen to so many noble Lords across the Committee set out their ambitions for the Bill and their support for this amendment. It started with the noble Baroness, Lady Kidron, talking about this set of purposes being the “North Star”. I pay tribute to her tireless work, which drove all of us in the Joint Committee on in an extremely positive way. I am not going to go through a summing-up process, but what my noble friend had to say about the nature of the risk we are undertaking and the fact that we need to be clear about it was very important. The whole question of clarity and certainty for business and the platforms, in terms of making sure that they understand the purpose of the Bill—as the noble Baroness, Lady Harding, and many other noble Lords mentioned—is utterly crucial.

If noble Lords look at the impact assessment, they will see that the Government seem to think the cost of compliance is a bagatelle—but, believe me, it will not be. It will be a pretty expensive undertaking to train people in those platforms, across social media start-ups and so on to understand the nature of their duties.

[Lord Allan of Hallam (LD)]

I was just refreshing myself on what the impact assessment says. It says that the cost of reading and understanding the regulations will range from £177 for a small business to £2,694 for a large category 1 service provider. To reinforce my noble friend’s point: it says it will cost £177 to read and understand the Bill. I am not sure that will be what happens in practice.

[Lord Clement-Jones (LD)]

I thank my noble friend for having the impact assessment so close to hand; that is absolutely correct.

The noble Baroness, Lady Fox, talked about unintended consequences—apart from bringing the people of Ukraine into the argument, which I thought was slightly extraneous. I think we need a certain degree of humility about the Bill. As the noble Lord, Lord Knight, said, this may well be part 1; we may need to keep iterating to make sure that this is effective for child safety and for the various purposes set out in the Bill. The Government have stated that this amendment would create greater uncertainty, but that is exactly the opposite of what our committee concluded. I believe, as many of us do, that the Government are wrong in taking the view that they have; I certainly hope that they will reconsider.

At Second Reading, the noble Lord, Lord Stevenson, made something that he probably would not want, given the antecedence of the phrase, to characterise as a big open offer to the Minister to work on a cross-party basis to improve the Bill. We on these Benches absolutely agree with that approach. We look forward to the debates in Committee in that spirit. We are all clearly working towards the same objective, so I hope the Government will respond in kind. Today is the first opportunity to do so—I set out that challenge to the Minister.

OFCOM (Duty regarding Prevention of Serious Self-harm and Suicide) Bill [HL]

Lord Clement-Jones Excerpts

2nd reading
Friday 3rd February 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I follow a very moving speech from my noble friend Lady Smith. As many noble Lords have, I welcome this valuable chance to follow up on some of the issues that were raised at the Second Reading of the Online Safety Bill this week. I thank the noble Baroness, Lady Finlay, for the excellent and comprehensive introduction to her Bill and other noble Lords who have shared the concerns and supported the Bill so eloquently.

As many have said, the scale of the issue is clear. Ian Russell, who attended every minute of the Second Reading debate on Wednesday, has the admiration of the House. There were many references to him in the debate, and his testimony is damning and shocking. Many noble Lords who are in the Chamber now or were here on Wednesday were there for his presentation of the thousands of posts that were made to his daughter Molly, before her death, which encouraged self-harm and suicide. Many who have been involved in online safety since the Green Paper and before were shocked. Even those who had been inured to issues of the internet were utterly shocked by the sheer scale of the messaging—thousands and thousands across every platform to which Molly had access.

So I welcome the promise of a new offence but, as mentioned by the noble Baroness, Lady Berridge, and by my noble friend Lady Smith in relation to eating disorders, under the Online Safety Bill, only content that is illegal will be properly caught when this is applied to adults. As has been pointed out by a number of noble Lords, particularly the noble Baroness, Lady Finlay, there is a cliff edge between childhood and adulthood, and we are going to treat 18 year-olds as adults from the day they turn 18. That cannot be right in these circumstances, without involving further risk assessments, protection and monitoring—which this Bill would provide. This is as a result of some very recent changes to the Online Safety Bill. As the noble Baroness, Lady Finlay, our briefing and the Samaritans’ briefing cogently describe, basically it is as a result of deleting the duty to have a risk assessment of legal but harmful content. The Online Safety Bill has been watered down; there is no doubt about that.

The proposals of the noble Baroness, Lady Finlay, are modest. I hope she also tables them as an amendment to the Online Safety Bill in Committee. As the Minister and his department have heard very eloquently from the noble Lord, Lord Stevenson, and from around the House, this is very much something that we want to get right on a cross-party basis. I hope that they take on board the proposals in this Bill, having heard the voices on Wednesday and from around the House today.

In essence, the Bill gives Ofcom a duty to devote resource—and my noble friend Lady Benjamin quite rightly talked about investment—as, under the current form of the Online Safety Bill, it would not have a duty to monitor this kind of content and advise on the effectiveness of current regulation and what needs changing in light of the harm being caused.

In the light of the evidence we have heard and the fact that in the Bill, as it currently stands, there is not even the duty of risk assessment for category 1 content of this kind, this seems the bare minimum that the Government can agree to. This is an effective way of future-proofing the Bill, which, as we heard today and on Wednesday, is absolutely necessary. We cannot keep playing catch-up with the technology and the harms that it can create. I will resist the temptation to digress on the many risks and opportunities that new technology, AI and algorithmic systems can create, but I thought the noble Baroness’s closing statement that yesterday’s science fiction is here today is absolutely apposite. Our regulation absolutely needs to take account of this, so we on these Benches thoroughly support the noble Baroness’s Bill.

Online Safety Bill

Lord Clement-Jones Excerpts

2nd reading
Wednesday 1st February 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for his detailed introduction and his considerable engagement on the Bill to date. This has been a comprehensive, heartfelt and moving debate, with a great deal of cross-party agreement about how we must regulate social media going forward. With 66 speakers, however, I sadly will not be able to mention many significant contributors by name.

It has been a long and winding road to get to this point, as noble Lords have pointed out. As the Minister pointed out, along with a number of other noble Lords today, I sat on the Joint Committee which reported as far back as December 2021. I share the disappointment of many that we are not further along with the Bill. It is still a huge matter of regret that the Government chose not to implement Part 3 of the DEA in 2019. Not only, as mentioned by many, have we had a cavalcade of five Culture Secretaries, we have diverged a long way from the 2019 White Paper with its concept of the overarching duty of care. I share the regret that the Government have chosen to inflict last-minute radical surgery on the Bill to satisfy the, in my view, unjustified concerns of a very small number in their own party.

Ian Russell—I pay tribute to him, like other noble Lords—and the Samaritans are right that this is a major watering down of the Bill. Mr Russell showed us just this week how Molly had received thousands and thousands of posts, driven at her by the tech firms’ algorithms, which were harmful but would still be classed as legal. The noble Lord, Lord Russell, graphically described some of that material. As he said, if the regulator does not have powers around that content, there will be more tragedies like Molly’s.

The case for proper regulation of harms on social media was made eloquently to us in the Joint Committee by Ian and by witnesses such Edleen John of the FA and Frances Haugen, the Facebook whistleblower. The introduction to our report makes it clear that the key issue is the business model of the platforms, as described by the noble Lords, Lord Knight and Lord Mitchell, and the behaviour of their algorithms, which personalise and can amplify harmful content. A long line of reports by Select Committees and all-party groups have rightly concluded that regulation is absolutely necessary given the failure of the platforms even today to address these systemic issues. I am afraid I do not agree with the noble Baroness, Lady Bennett; being a digital native is absolutely no protection—if indeed there is such a thing as a digital native.

We will be examining the Bill and amendments proposed to it in a cross-party spirit of constructive criticism on these Benches. I hope the Government will respond likewise. The tests we will apply include: effective protections for children and vulnerable adults; transparency of systems and power for Ofcom to get to grips with the algorithms underlying them; that regulation is practical and privacy protecting; that online behaviour is treated on all fours with offline; and that there is a limitation of powers of the Secretary of State. We recognise the theme which has come through very strongly today: the importance of media literacy.

Given that there is, as a result of the changes to the Bill, increased emphasis on illegal content, we welcome the new offences, recommended in the main by the Law Commission, such as hate and communication crimes. We welcome Zach’s law, against sending flashing images or “epilepsy trolling”, as it is called, campaigned for by the Epilepsy Society, which is now in Clause 164 of the Bill. We welcome too the proposal to make an offence of encouraging self-harm. I hope that more is to come along the lines requested by my noble friend Lady Parminter.

There are many other forms of behaviour which are not and will not be illegal, and which may, according to terms of service, be entirely legal, but are in fact harmful. The terms of service of a platform acquire great importance as a result of these changes. Without “legal but harmful” regulation, platforms’ terms of service may not reflect the risks to adults on that service, and I was delighted to hear what the noble Baroness, Lady Stowell, had to say on this. That is why there must be a duty on platforms to undertake and publish risk and impact assessments on the outcomes of their terms of service and the use of their user empowerment tools, so that Ofcom can clearly evaluate the impact of their design and insist on changes or adherence to terms of service, issue revised codes or argue for more powers as necessary, for all the reasons set out by the noble Baroness, Lady Gohir, and my noble friend Lady Parminter.

The provisions around user empowerment tools have now become of the utmost importance as a result of these changes. However, as Carnegie, the Antisemitism Policy Trust, and many noble Lords today have said, these should be on by default to protect those suffering from poor mental health or who might lack faculty to turn them on.

Time is short today, so I can give only a snapshot of where else we on these Benches—and those on others, I hope—will be focusing in Committee. The current wording around “content of democratic importance” and “journalistic content” creates a lack of clarity for moderation processes. As recommended by the Joint Committee, these definitions should be replaced with a single statutory requirement to protect content where there are reasonable grounds to believe it will be in the public interest, as supported by the Equality and Human Rights Commission.

There has been a considerable amount of focus on children today, and there are a number of amendments that have clearly gained a huge amount of support around the House, and from the Children’s Charities’ Coalition on Internet Safety. They were so well articulated by the noble Baroness, Lady Kidron. I will not adumbrate them, but they include that children’s harms should be specified in the Bill, that we should include reference to the UN convention, and that there should be provisions to prevent online grooming. Particularly in the light of what we heard this week, we absolutely support those campaigning to ensure that the Bill provides for coroners to have access to children’s social media accounts after their deaths. We want to see Minister Scully’s promise to look at this translate into a firm government amendment.

We also need to expressly future-proof the Bill. It is not at all clear whether the Bill will be adequate to regulate and keep safe children in the metaverse. One has only to read the recent Institution of Engineering and Technology report, Safeguarding the Metaverse, and the report of the online CSA covert intelligence team, to realise that it is a real problem. We really need to make sure that we get the Bill right from this point of view.

As far as pornography is concerned, if we needed any more convincing of the issues surrounding children’s access to pornography, the recent research by the Children’s Commissioner, mentioned by several noble Lords, is the absolute clincher. It underlines the importance of the concerns of the coalition of charities, the noble Lord, Lord Bethell, and many other speakers today, who believe that the Online Safety Bill does not go far enough to prevent children accessing harmful pornographic content. We look forward to debating those amendments when they are put forward by the noble Lord, Lord Bethell.

We need to move swiftly on Part 5 in particular. The call to have a clear time limit to bring it in within six months of the Bill becoming law is an absolutely reasonable and essential demand.

We need to enshrine age-assurance principles in the Bill. The Minister is very well aware of issues relating to the Secretary of State’s powers. They have been mentioned by a number of noble Lords, and we need to get them right. Some can be mitigated by further and better parliamentary scrutiny, but many should simply be omitted from the Bill.

As has been mentioned by a number of noble Lords, there is huge regret around media literacy. We need to ensure that there is a whole-of-government approach to media literacy, with specific objectives set for not only Ofcom but the Government itself. I am sure that the noble Lord, Lord Stevenson, will be talking about an independent ombudsman.

End-to-end encryption has also come up; of course, that needs protecting. Clause 110 on the requirement by Ofcom to use accredited technology could lead to a requirement for continual surveillance. We need to correct that as well.

There is a lot in the Bill. We need to debate and tackle the issue of misinformation in due course, but this may not be the Bill for it. There are issues around what we know about the solutions to misinformation and disinformation and the operation of algorithmic amplification.

The code for violence against women and girls has been mentioned. I look forward to debating that and making sure that Ofcom has the power and the duty to produce a code which will protect women and girls against that kind of abuse online. We will no doubt consider criminal sanctions against senior managers as well. A Joint Committee, modelled on the Joint Committee on Human Rights, to ensure that the Bill is future-proofed along the lines that the noble Lords, Lord Inglewood and Lord Balfe, talked about is highly desirable.

The Minister was very clear in his opening remarks about what amendments he intends to table in Committee. I hope that he has others under consideration and that he will be in listening mode with regard to the changes that the House has said it wants to see today. Subject to getting the Bill in the right shape, these Benches are very keen to see early implementation of its provisions. I hope that the Ofcom implementation road map will be revised, and that the Minister can say something about that. It is clearly the desire of noble Lords all around the House to improve the Bill, but we also want to see it safely through the House so that the long-delayed implementation can start.

This Bill is almost certainly not going to be the last word on the subject, as the noble Baroness, Lady Merron, very clearly said at the beginning of this debate, but it is a vital start. I am glad to say that today we have started in a very effective way.

Broadband: Social Tariffs

Lord Clement-Jones Excerpts

Tuesday 31st January 2023 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My noble friend is right to point to the changes that were made in the building regulations on Boxing Day. That, of course, sits alongside the work we have taken forward through two telecommunications infrastructure Acts to help ensure that connectivity reaches more households, particularly those in large blocks of flats. It accompanies our wider work to ensure that everyone has access to high-speed internet. As a result of that, 73% of UK premises can now access gigabit-capable broadband, a huge increase from just 6% this time four years ago.

[Lord Clement-Jones (LD)]

My Lords, lack of access to digital devices is a major cause of data poverty. What resources are the Government providing, and what steps are they taking, to make sure that public bodies such as GP practices and schools ensure that families in data poverty can access digital-only services? Do the Government even have a comprehensive digital exclusion policy?